Kerala High Court
Monson M.C. @ Monson Mavungal vs State Of Kerala on 12 April, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE S.MANU
Friday, the 12th day of April 2024 / 23rd Chaithra, 1946
CRL.M.APPL.NO.1/2023 IN CRL.A NO.1064 OF 2023
SC 1318/2021 OF ADDITIONAL DISTRICT & SESSIONS COURT(FOR THE TRIAL OF CASES
RELATING TO ATROCITIES AGAINST WOMEN AND CHILDREN), ERNAKULAM
PETITIONER/APPELLANT/ACCUSED:
MONSON M.C. @ MONSON MAVUNGAL, AGED 53 YEARS, S/O. M.L.CHAKO,
MAVUNKAL HOUSE, CMC-26,CHERTHALA P.O., CHERTHALA VILLAGE, CHERTHALA
THALUK, ALAPPUZHA DISTRICT, NOW RESIDING ON RENT IN THE HOUSE OF
SMT. BINU BABURAJ, PRANAVAM, VLRA-15A, VATTAPPARAMBU LANE,
KALOOR.P.O., ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM
DISTRICT, PIN - 682017.
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI, PIN - 682031.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of sentence passed in
Judgement dated 17.06.2023 in S.C.No.1318/2021 of the Court of Additional
District & Sessions, Ernakulam (For the trial of cases relating to
Atrocities & Sexual Violence Against Women and Children) pending disposal
of the above appeal and to enlarge the petitioner/Appellant on bail.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.M.G.SREEJITH, V.G.ARUN (K/795/2004),
P.JAYA, LUKE J CHIRAYIL, SWAPNALEKHA K.T., VIDYAJITH M., ROJIN DEVASSY,
ANIL KUMAR P.T., BINCY JOSE, Advocates for the petitioner and of the
PUBLIC PROSECUTOR for the respondent,the court passed the following:
P.T.O.
P.B.SURESH KUMAR & S.MANU, JJ.
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Crl.M.Appln.No.1 of 2023
in
Crl.Appeal No.1064 of 2023
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Dated this the 12th day of April, 2024
ORDER
S.MANU, J.
Petitioner/appellant is the sole accused in
S.C.No.1318/2021 of the Additional District and Sessions
Court, Ernakulam. The offences alleged against him in the
final report are under Sections 5(p), (l), (j) (ii) r/w.6, 9(l),
(p) r/w.10, 11(iii) r/w.12 of the Protection of Children from
Sexual Offences Act, 2012 and Section 370 (1)(a), 342,
354A(1)(iii), 354A(2), 376(3), 376(2)((f),(n), 313 and
506(i) of Indian Penal Code.
2. The prosecution case in brief is as follows:-
The mother of the victim girl aged 17 years and
her brother were employed under the accused. The accused
offered them to reconstruct their dilapidated house in
Kumbalangi Village and also to help the victim to continue
Crl.M.Appln.No.1 of 2023 in
her studies. The accused misled the victim that he is a
Doctor and offered to teach cosmetology to her. On
25.7.2019 at about 6 p.m., the accused and the victim were
in the house by name 'Pranavam' in Vattapparambu Lane,
Elamkulam Village, Kaloor Kara. The accused showed
obscene pictures to the victim in his iPad and touched her
with sexual intent. On the next day at about 4 p.m., the
accused called her to the bed room situated in the same
house and committed rape on her. He threatened the victim
with dire consequences if the incident is revealed to anyone.
After two days she was again raped in the same place of
occurrence. It repeated on subsequent occasions also. On
a day in October, 2019, the accused conducted pregnancy
test of the victim using pregnancy test card and the result
was positive. He thereafter terminated the pregnancy of the
victim by administering tablet. The sexual assaults on the
victim continued till she attained majority on 11.1.2020.
3. The crime against the petitioner was registered on
the basis of the F.I.Statement furnished by the victim on
Crl.M.Appln.No.1 of 2023 in
18.10.2021. PW20 S.H.O. of Ernakulam Town Police Station
registered Ext.P17 F.I.R. as Crime No.1319 of 2021 of
Ernakulam Town North Police Station. Later, the
investigation was handed over to a special investigation
team. On conclusion of investigation, final report was
submitted alleging the offences stated above.
4. On completion of other formalities the trial
commenced and prosecution examined PWs.1 to 22 on its
side. Exts.P1 to P29 and MO1 were marked. The defence
examined DW1. Exts.D1 to D12 were also marked. The
learned Additional Sessions Judge, on appreciation of
evidence, found the petitioner/appellant guilty of the
offences punishable under Sections 5 (j) (ii), (l), (p) r/w.6, 9
(l), (p) r/w.10, 11 (iii) r/w.12 of the Protection of Children
from Sexual Offences Act, 2012 and Sec.370 (4), 342, 354A
(1) (iii) r/w.354 A (2), 376 (2) (f), 376 (2) (n), 313, 506 (i)
of Indian Penal Code. The petitioner has been sentenced to
undergo imprisonment for life and to pay a fine of
Rs.1,00,000/- (Rupees One lakh only) for the offence under
Crl.M.Appln.No.1 of 2023 in
Section 5(j) (ii) r/w.6 of the POCSO Act, 2012 with default
imprisonment for six months. For the offence under Section
9(l) r/w 10 of the POCSO Act, 2012 he has been sentenced
to undergo rigorous imprisonment for five years and to pay
a fine of Rs.50,000/- (Rupees Fifty thousand only), in
default of payment of fine to undergo rigorous imprisonment
for three months. For the offence under Section 9(p) r/w.10
of the POCSO Act the petitioner has been sentenced to
undergo rigorous imprisonment for a period of five years
and to pay a fine of Rs.50,000/- (Rupees Fifty thousand
only), in default of payment of which he shall undergo
rigorous imprisonment for three months. He is further
sentenced to undergo imprisonment for a period of three
years and to pay a fine of Rs.25,000/- (Rupees Twenty five
thousand only) with default imprisonment for two months
for the offence under Section 11(iii) r/w. 12 of the POCSO
Act. Rigorous imprisonment for ten years and fine of
Rs.50,000/- (Rupees Fifty thousand only) with default
sentence of rigorous imprisonment for six months is the
Crl.M.Appln.No.1 of 2023 in
punishment imposed for the offence under Section 370(4) of
the IPC. For the offence under Section 342 of the IPC
rigorous imprisonment for a period of one year has been
imposed. He is sentenced to undergo imprisonment for life
which shall mean remainder of his natural life and pay a fine
of Rs.1,00,000/- (Rupees One Lakh only) for the offence
u/s.376(2)(f) of the IPC. Default sentence of rigorous
imprisonment for six months is also imposed for the said
offence. Life imprisonment for remainder of his natural life
and fine of Rs.1,00,000/- (Rupees One Lakh only) has been
imposed for the offence u/s.376 (2) (n) of the IPC. Default
sentence of six months rigorous imprisonment is also
imposed for failure to pay fine for the said offence. For the
offence u/s.313 of the IPC he is sentenced to undergo
rigorous imprisonment for a period of ten years and to pay a
fine of Rs.50,000/-(Rupees Fifty thousand only), in default
of payment of fine he shall undergo rigorous imprisonment
for six months. Rigorous imprisonment for one year has
been awarded for the offence u/s.506(i) of the IPC. The
Crl.M.Appln.No.1 of 2023 in
sentences shall run concurrently. The trial court also
directed that the fine amount if realised shall be paid to the
victim as compensation u/s.357(1) of Cr.P.C.
5. The petitioner was apprehended on 6.11.2021 and
he is still in custody.
6. The learned counsel appearing for the
petitioner/appellant submitted that the case of the victim is
fabricated and the evidence adduced by the prosecution is
shaky and shabby. He asserted that the prosecution has
suppressed some crucial materials and has resorted to
manipulations to secure conviction of the petitioner. He
produced some documents along with Miscellaneous
Application and sought to rely on the same in order to press
the application for suspension of sentence. The further case
of the learned counsel is that the evidence of the victim is
untrustworthy and the learned Additional Sessions Judge
failed to appreciate the serious lacunae in the case
developed by the prosecution. He stressed that the
conviction is mainly relying on the evidence of the victim,
Crl.M.Appln.No.1 of 2023 in
which is not credible and there is no corroboration on
material aspects. He fervently pleaded that the petitioner is
entitled for suspension of sentence invoking Section 389 of
the Cr.P.C.
7. The learned Special Government Pleader opposed
the application and filed objection. The learned Special
Government Pleader referred to various materials brought
on record during trial as well as several judgments of the
Apex Court to refute the submissions of the learned counsel
for the petitioner.
8. We have heard the learned counsel for the
petitioner and the learned Special Government Pleader
elaborately. We have also perused the judgment of the
learned Additional Sessions Judge and also the evidence
adduced by both sides.
9. An appellate court is not expected to proceed for
an elaborate assessment of the quality, reliability,
admissibility, sanctity, etc. of the evidence as those
considerations are relevant and required only at the time of
Crl.M.Appln.No.1 of 2023 in
final hearing of the appeal. Considerations relevant for the
purpose of deciding an application under Section 389 of the
Cr.P.C. are distinct and different.
10. In Preet Pal Singh v. State of Uttar Pradesh
and another [(2020) 8 SCC 645] the Hon'ble Supreme
Court analysed the provisions of Sections 389 and 374 of the
Cr.P.C. and laid down in paragraph '38' as follows:-
"In considering an application for suspension of
sentence, the Appellate Court is only to examine if
there is such patent infirmity in the order of
conviction that renders the order of conviction prima
facie erroneous. Where there is evidence that has
been considered by the Trial Court, it is not open to a
Court considering application under Section 389 to
re-assess and/or re-analyze the same evidence and
take a different view, to suspend the execution of the
sentence and release the convict on bail."
11. In Vinay Kumar v. Narendra and others
[(2002) 9 SCC 364] the Apex Court held as follows:-
"The principle is well-settled that in considering the
prayer for bail in a case involving serious offence like
murder, punishable under Section 302 IPC, the court
Crl.M.Appln.No.1 of 2023 in
should consider the relevant factors like the nature of
the accusation made against the accused, the manner
in which the crime is alleged to have been committed,
the gravity of the offence, and the desirability of
releasing the accused on bail after they have been
convicted for committing the serious offence of
murder."
12. The aforesaid view has been reiterated by the
Hon'ble Supreme Court in 1) Ramji Prasad v. Rattan
Kumar Jaiswal and another [(2002) 9 SCC 366],
2) Vasant Tukaram Pawar v. State of Maharashtra
[(2005) 5 SCC 281] and 3) Gomti v. Thakurdas and
Others [(2007) 11 SCC 160].
13. In Omprakash Sahni v. Jai Shankar
Chaudhary & others [(2023) 6 SCC 123] the Apex Court
held that while undertaking the exercise to ascertain
whether the convict has a fair chance of acquittal, what is to
be looked into is something palpable. In other words,
something which is very apparent or gross errors on the
face of the record on the basis of which, the court can arrive
Crl.M.Appln.No.1 of 2023 in
at a prima facie satisfaction that the conviction may not be
sustainable. The Hon'ble Apex Court went on to hold that
the appellate court should not re-appreciate the evidence at
the stage of Section 389 of the Cr.P.C. and try to pick up few
lacunas or loopholes here or there in the case of
prosecution.
14. The learned counsel for the petitioner vehemently
argued that there is unexplained long delay in lodging the
FIR. The learned counsel also points out that there is serious
doubt regarding the place of occurrence and attempted to
refer to the additional documents produced by him along
with an application. We will not be justified in referring to
any material other than those admitted in evidence by the
trial court. Unless this Court allows the petitioner/appellant
to adduce additional evidence he is not entitled to place any
materials other than those forming the part of records of the
trial for consideration in this application or in the appeal.
Therefore, we reject the contentions of the learned counsel
for the petitioner raised on the basis of additional materials.
Crl.M.Appln.No.1 of 2023 in
15. The prime contention of the learned counsel is
that the evidence of the victim is unreliable. The Hon'ble
Supreme Court in the judgment reported in (2012) 8 SCC
21 [Rai Sandeep v. State (NCT of Delhi)] held that the
evidence of the victim of a sexual assault can be the sole
basis of a conviction provided such evidence shall be of a
sterling quality. The Hon'ble Apex Court held that the
'sterling witness' should be of a very high quality and caliber
whose version should, therefore, be unassailable. The court
considering the evidence of such witness should be in a
position to accept it for its face value without any hesitation.
16. In the case of Ganesan v. State [(2020) 10 SCC
573], the Supreme Court observed and held that there can
be a conviction on the sole testimony of the
victim/prosecutrix when the deposition of the prosecutrix is
found to be trustworthy, unblemished, credible and her
evidence is of sterling quality.
17. In the case of State (NCT of Delhi) v. Pankaj
Chaudhary [(2019) 11 SCC 575], it was observed and held
Crl.M.Appln.No.1 of 2023 in
that as a general rule, if credible, conviction of accused can
be based on sole testimony, without corroboration. It was
further observed and held that sole testimony of prosecutrix
should not be doubted by court merely on basis of
assumptions and surmises.
18. In the case of Sham Singh v. State of Haryana
[(2018) 18 SCC 34], the Supreme Court observed that
testimony of the victim is vital and unless there are
compelling reasons which necessitate looking for
corroboration of her statement, the courts should find no
difficulty to act on the testimony of the victim of sexual
assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. It was
further observed that seeking corroboration of her
statement before relying upon the same, as a rule, in such
cases amounts to adding insult to injury.
19. We have perused the deposition of the victim
examined as PW1. We do not find that the same is
unreliable and misleading as argued by the learned counsel
Crl.M.Appln.No.1 of 2023 in
for the petitioner. As stated supra it is not within the realm
of this Court while considering an application under Section
389 of the Cr.P.C. to arrive at conclusive findings regarding
the veracity of the evidence of the prosecutrix. Only if we
form an opinion that the evidence is prima facie unreliable
and no other materials and circumstances proving the
complicity of the accused are available, we can proceed to
suspend the execution of sentence imposed on the
petitioner/accused. Since the evidence of the victim is
prima facie sufficient to support the findings and conclusions
arrived at by the trial court in this case and taking note of
the fact that there are other materials also against the
petitioner/accused, we are of the view that his application
for suspension of sentence is liable to be rejected. It is to be
noted that the petitioner has been awarded the
imprisonment for life on three different counts by the
learned Additional Sessions Judge. Suspending the
sentence for life imprisonment can be resorted only in
exceptional cases. The heinous nature of the offence
Crl.M.Appln.No.1 of 2023 in
allegedly committed by the petitioner/accused cannot be
ignored. Gravity of the offence being one of the relevant
factors for consideration, at this stage, we are of the firm
view that this application cannot be entertained.
In the result, this Crl.M.Appln. is dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE
Sd/-
S.MANU, JUDGE
skj
12-04-2024 /True Copy/ Assistant Registrar
