Kerala High Court
Xxxxxx vs State Of Kerala on 11 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Thursday, the 11th day of April 2024 / 22nd Chaithra, 1946
CM.APPL.NO.1/2024 IN CRL.A NO.116 OF 2024
SC 1059/2018 OF SPECIAL COURT/ADDITIONAL SESSIONS COURT -I,THALASSERY
APPLICANT/APPELLANT:
XXX
RESPONDENT/RESPONDENT:
STATE OF KERALA (SHO KANNAVAM POLICE STATION)
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of the sentence imposed on
the petitioner in S.C.No.1059/2018 on the file of the Special
Court/Additional Sessions Court - I, Thalassery, pending disposal of the
appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of SHRI P.P.RAMACHANDRAN, Advocate for the
petitioner and of the PUBLIC PROSECUTOR for the respondent, the court
passed the following:
P.T.O.
P.G. AJITHKUMAR, J.
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Crl.M.A.No.1 of 2024
in
Crl.Appeal No.116 of 2024
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Dated this the 11th day of April, 2024
ORDER
This is a petition filed by the appellant under Section
389(1) of the Code of Criminal Procedure, 1973 (Code). The
petitioner would contend that he is innocent and there is
every chance for allowing the appeal and acquitting him. He
was on bail during the trial of the case. In such
circumstances, he claims that he is entitled to get his
sentence suspended.
2. The learned Public Prosecutor filed an objection on
behalf of the respondent. It is contended that the evidence
adduced by the prosecution proved beyond doubt that the
petitioner had committed the offence alleged against him. The
offence proved against the petitioner is grievous. On account
of the offence he has committed on the victim, who was aged
about five years only at the time of occurrence, has been put
to untold miseries. Considering the gravity and nature of the
Crl.M.A.No.1 of 2024 in
offence and the tenure of the sentence imposed, the
petitioner is not entitled to get an order to suspend the
sentence.
3. Heard the learned counsel for the appellant and the
learned Public Prosecutor.
4. The petitioner was convicted for offences
punishable under Sections 377 and 506(i) of the Indian Penal
Code, 1860 and under Sections 3(a) r/w 4, 5(l) & 5(m) r/w 6
of the Protection of Children from Sexual Offences Act, 2012.
The longest term of sentence the petitioner has to undergo as
per the impugned judgment is imprisonment for 20 years.
5. The charge levelled against the petitioner was that
during the period 2015-2016 while the victim was studying in
UKG, the petitioner used to take the child to his house by
luring him offering sweets and subjected the child to carnal
intercourse. The petitioner did so on multiple occasions. The
child was threatened not to reveal the incidents to anyone.
The trial court, believing the evidence tendered by the
prosecution, found the petitioner guilty.
Crl.M.A.No.1 of 2024 in
6. The learned counsel for the petitioner would submit
that there have been serious discrepancies in the evidence of
the victim and there is delay in launching the prosecution. The
learned counsel for the petitioner further would submit that
the age of the child was not proved by the prosecution and
therefore no conviction for an offence under the PoCSO Act
could be possible in view of the law laid down by this Court in
Shaju v. State of Kerala [2022 (5) KLT 395]. It is pointed
out that Ext.P1 although styled as a birth certificate, it is only
a certification by the school authorities and an inadmissible
document. Similarly, Ext.P11, which was brought to the court
by PW15, the Headmistress of the school, where the child
studied in UKG, is an incomplete document and therefore the
same also cannot be used to prove the age of the victim.
While the date of birth of the child is shown as 14.06.2011 in
Ext.P11, PW2 mother stated that the date of birth of the
victim was 14.06.2012. That also is pointed out as a reason to
attack the finding of the trial court regarding age of the
victim.
Crl.M.A.No.1 of 2024 in
7. It is true that when PW12 deposed about the date of
birth of the child there occurred such a mistake. Even when the
victim was examined before the court in 2023, he was aged only
11 years. The incident occurred while the victim was studying in
UKG. It was with respect to the age of such a child, the aforesaid
contentions were raised by the petitioner. There may be dispute
about the exact age and date of birth of the child. But in the light
of specific assertion about the age by the mother, PW2, which by
itself may be sufficient, if reliable, to prove the age in light of the
law laid down by this Court in Biju v. State of Kerala [2024
(2) KHC 297], there cannot be any doubt as to the fact that the
child was below the age of 12 years at the time of occurrence,
which was in 2015-16. If so, the penetrative sexual assault would
be an aggravated one attracting punishment under Section 6 of
the PoCSO Act. The oral evidence of the victim together with that
of PW12 and other circumstances, including the medical evidence,
was placed reliance on by the trial court to find the petitioner
guilty. I find no reason to hold the said findings totally incorrect
at this stage.
Crl.M.A.No.1 of 2024 in
8. The Apex Court in Atul Tripathi v. State of U.P.
and another [(2014) 9 SCC 177] held that the court is
expected to judiciously consider all the relevant factors like
gravity of the offence, nature of the crime, age and criminal
antecedents of the convict, impact on public confidence in
court, etc. before ordering suspension of sentence.
9. In Preet Pal Singh v. State of Uttarpradesh
[(2020) 8 SCC 645] the Apex Court held that unless there
are strong compelling reasons for granting bail,
notwithstanding an order of conviction, the sentence shall not
be suspended.
10. The Apex Court after considering the principles of
law evolved in earlier decisions in Omprakash Sahni v. Jai
Shankar Chaudhary and another [AIR 2023 SC 2202]
laid down the parameters for suspension of sentence in
serious offences, which are;
i) Whether the case presented by the prosecution and
accepted by the trial court can be said to be in a case in
which, ultimately, there is a chance for acquittal;
ii) The court should be convinced that there is a fair chance
Crl.M.A.No.1 of 2024 in
for acquittal on the basis of the matters perceivable from
the face of the record; and
iii) The court shall not re appreciate the evidence in order to decide
the question whether or not the sentence should be suspended.
11. The petitioner was convicted on 16.12.2023.
Considering the circumstances in which the offence was
committed, the age of the victim and the sexual assault
occurred on multiple occasions, I am of the view that the
petitioner does not deserve any leniency. As stated, the
contentions of the petitioner that his conviction is infirm and
there is every chance for succeeding in the appeal, is not
prima facie tenable. No mitigating or compelling circumstance
entitling the petitioner to get the execution of the sentence
suspended is substantiated. Viewed those aspects in the light
of the law laid down in the decisions mentioned above, I am
of the view that the petition is liable to be dismissed.
Hence, the petition is dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
11-04-2024 /True Copy/ Assistant Registrar
