Thomas @ Joshy vs State Of Kerala
2022 Latest Caselaw 1867 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
          Friday, the 18th day of February 2022 / 29th Magha, 1943
               CRL.M.APPL.NO.1/2020 IN CRL.A NO. 437 OF 2020
        SC 102/2015 OF THE ADDITIONAL SESSIONS COURT - I , KOTTAYAM
PETITIONER/APPELLANT:

     THOMAS @ JOSHY, AGED 37 YEARS, S/O. THOMMY, PUTHENPURAKAL VEEDU,
     NAKRAL, PUTHUVAL BHAGOM, PERUNNA WEST KARA, CHANGANACHERRY.

RESPONDENT/RESPONDENT:

     STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH CORUT OF KERALA,
     ERNAKULAM 682 031.


     Application praying that in the circumstances stated therein the

High Court be pleased to suspend the execution of the sentence imposed on

the appellant in the judgment dated 18.03.2020 in S.C.No. 102/2015 of the

Additional Sessions Judge-I, Kottayam pending disposal of this appeal and

to grant bail to the petitioner/appellant.



     This Application coming on for orders upon perusing the application

and upon hearing the arguments of GEORGE SEBASTIAN, SRI.BOBBY JOHN,

Advocates for the petitioner and of the PUBLIC PROSECUTOR   for the

respondent, the court passed the following:




                                                            (PTO)
                        Dr. Kauser Edappagath, J
                 -------------------------------
                            Crl.A.No.437/2020
                -------------------------------
                 Dated this the 18th day of February, 2022
                --------------------------------

                                  ORDER

Crl.M.A.No.1/2020

This is an application filed to suspend the execution of sentence.

2. The petitioner/appellant has been convicted for the offences

punishable under Sections 377, 376(2)(f), 376(2)(i), 376(2)(j) and

376(2)(k), 376(2)(n) of IPC and Section 6 read with 5(l), 5(m) and

5(n) of the Protection of Children from Sexual Offences Act (POCSO Act

for short). He is sentenced to undergo rigorous imprisonment for 10

years and to pay a fine of Rs.30,000/- for the offence punishable under

Section 6 of the POCSO Act. Separate punishment is not ordered under

Sections 376(2)(f), 376(2)(i), 376(2)(j) and 376(2)(k) and 376(2)(n)

of IPC as provided in Section 42 of the POCSO Act.

3. I have heard Sri.. George Sebastian, the learned counsel for

the petitioner and Smt. Sheeba Thomas, the learned Public Prosecutor.

4. The victim is none other than the daughter of the petitioner.

The incident had taken place when the victim was only 10 months of

age. The petitioner who should have been the protector of the child as

a father, turned out to be a demon and sexually abused his own child. Crl.M.A.No.1/2020 in Crl.A.No.437/2020

I went through the relevant portion of the judgment. Paragraph 12 of

the judgment deals with the evidence of PW1 who is the mother of

the victim and wife of the petitioner. She specifically deposed that the

incident had taken place on 24/1/2015 and 25/1/2015. According to

her, she saw traces of semen on the hip and corner of the mouth of

the victim, who was only 7 months age at that time. She further

deposed that on seeing this, she searched the accused and he was

found lying naked on the bed. She further deposed that on the next

day she witnessed the accused putting his sexual organ into the mouth

of the victim and inserting his finger into her vagina. PW3 is the

doctor. Ext.P2 is the wound certificate. Paragraph 24 of the judgment

deals with the evidence of the doctor. The doctor deposed that she

examined the victim and issued Ext.P2 wound certificate. According to

the doctor, PW1 narrated the history of rape, oral sex and putting

fingers into the vagina of the victim by the petitioner. The doctor

further deposed that on examination, the hymen of the victim was

found absent. I am not commenting on these evidence at this stage

for the reason that it has to be considered at the time of final hearing.

However, the fact remains that the court below believed the testimony

of PW1 as well as PW3.

Crl.M.A.No.1/2020 in Crl.A.No.437/2020

5. The learned counsel for the petitioner submitted that there

is seven days' delay in registering the FIR and no independent

witnesses were examined. The learned counsel further submitted that

there was marital dispute between the petitioner and PW1 and hence

the evidence of PW1 could not have been relied on. I cannot rely on

those submissions as such. Those contentions can be raised at the

time of final hearing. Considering the heinous nature of crime

committed by the petitioner, I am of the view that his sentence cannot

be suspended.

Accordingly, this application is dismissed.

Sd/-

DR. KAUSER EDAPPAGATH, JUDGE

kp

18-02-2022 /True Copy/ Assistant Registrar