Swamy Narayana Dharmavrathan @ ... vs State Of Kerala
2024 Latest Caselaw 10367 Ker

Citation : 2024 Latest Caselaw 10367 Ker
Judgement Date : 11 April, 2024

Kerala High Court

Swamy Narayana Dharmavrathan @ ... 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
                CRL.M.APPL.NO.1/2024 IN CRL.A NO.412 OF 2024
         SC 402/2019 OF THE FAST TRACK SPECIAL COURT, IRINJALAKUDA
APPLICANT/APPELLANT/ACCUSED:

     SWAMY NARAYANA DHARMAVRATHAN @ THAMARAKSHAN, AGED 58 YEARS,
     S/O. RAGHAVAN, VENATTU VEEDU, KALLUKEERI DESOM, PERUVANTHANAM
     VILLAGE,
     IDUKKI, PIN - 685531.

RESPONDENT/RESPONDENT/COMPLAINANT:

     STATE OF KERALA,
     REPRESENTED BY THE 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 sentence till the
disposal of this appeal and be further pleased to release the petitioner
on bail.


     This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.C.P.UDAYABHANU, NAVANEETH.N.NATH,
Advocates for the petitioner and of the PUBLIC PROSECUTOR for the
respondent, the court passed the following:




                                                                      P.T.O.
                    P.G. AJITHKUMAR, J.
  -----------------------------------------------------------
                    Crl.M.A.No.1 of 2024
                               in
                Crl.Appeal No.412 of 2024
  -----------------------------------------------------------
          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 execution

of his sentence suspended.

2. The learned Public Prosecutor 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 to the victim boy,

who was aged only 13 years at the time of occurrence, has

been put to untold miseries. Considering the gravity and

nature of the offence and the tenure of the sentence imposed,

Crl.M.A.No.1 of 2024 in

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 the offences

punishable under Sections 10 r/w 9(f) and (l) and 18 of

Section 4 r/w 3(c) of the Protection of Children from Sexual

Offences Act, 2012 and under Section 75 of the Juvenile

Justice (Care and Protection of Children) Act, 2015. The term

of sentence the petitioner has to undergo is imprisonment for

seven years.

5. The charge levelled against the petitioner was as

follows:-

The petitioner was the Secretary of an Ashramam in

Kottanellur. From the middle of the month of May, 2018 till

07.06.2018 the petitioner sexually assaulted the victim boy

aged 13 years by attempting to catch on his genitals and also

attempted to insert his genital into mouth. The trial court,

believing the evidence tendered by the prosecution found the

Crl.M.A.No.1 of 2024 in

petitioner guilty as mentioned above.

6. The learned counsel for the petitioner would submit

that even accepting the evidence of the victim in toto, the

offence that was revealed is only the one punishable under

Sections 8 of the PoCSO Act. No offence under Section 10 or

an attempt to commit the offence punishable under Section 4

of the Act is made out. Going by the narration about the

incident by PW1 as is seen from the judgment, the petitioner

tried to persuade the victim in order for subjecting him to

penetrative sexual assault. What PW1 deposed is that he

asked the victim to catch on his penis and to insert it in

mouth, but the victim refused. Considering the nature of the

incident as narrated by the victim, the contention that no

offence of attempted penetrative sexual assault is attracted,

requires deeper consideration. Also, it is contended that no

evidence to prove that the petitioner was in management of

the institution is adduced by the prosecution. Of course, the

victim deposed that the petitioner was the manager of the

hostel. However, the contention of the petitioner in that

Crl.M.A.No.1 of 2024 in

regard also requires serious consideration.

7. In view of the aforesaid matters and the other

grounds urged by the petitioner to assail the impugned

judgment, I am of the view that the petitioner can be granted

bail by suspending execution of the sentence. I take such a

view also for the reason that the petitioner has been in jail

since 15.02.2024.

8. Accordingly, this petition is allowed and the

petitioner is granted bail on his executing a bond for

Rs1,00,000/- (Rupees one lakh only), with two solvent

sureties for the like amount each, to the satisfaction of the

trial court, subject to the following conditions:

i) He shall deposit entire fine amount in the trial court within one month;

ii) He shall not enter the Thrissur revenue district, where the institution is located and Palakkad revenue district, where the victim is now staying, till the final disposal of this appeal;