Kerala High Court

Biju vs State Of Kerala on 12 April, 2024

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
          Friday, the 12th day of April 2024 / 23rd Chaithra, 1946
                CRL.M.APPL.NO.1/2024 IN CRL.A NO.11 OF 2024
          SC 1777/2018 OF FAST TRACK SPECIAL COURT, NEYYATTINKARA
APPLICANT/APPELLANT:

     BIJU, AGED 42 YEARS, S/O SUKUMARAN, THERIVILA PUTHENVEEDU,
     NELLIMOODU P.O., KAZHIVOOR DESOM, KOOTTUKAL VILLAGE,
     THIRUVANANTHAPURAM DISTRICT, PIN - 695524.

RESPONDENT/RESPONDENT:

     STATE OF KERALA
     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 conviction and execution of sentence
passed against petitioner by judgment dated 13.12.2023 in S.C.No.1777/2018
by the Fast Track Special Court of Session, Neyyattinkara and to enlarge
the applicant/appellant on bail, pending disposal of the Criminal Appeal.


     This Application coming on for orders upon perusing the application
and upon hearing the arguments of SHRI R.T.PRADEEP, Advocate 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.11 of 2024
   -----------------------------------------------------------
           Dated this the 12th 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 and the consequent

ostracisation, the victim, who was aged only 15 years at the

time of occurrence, has been put to untold miseries.

Considering the gravity of the offence and the tenure of the

Crl.M.A.No.1 of 2023 in

sentence imposed, the petitioner is not entitled to get an

order suspending 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 366A and 376(2)(n) of the Indian

Penal Code, 1860 and under Sections 5(l) r/w 6 and 7 r/w 8 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 10 years.

5. The charge levelled against the petitioner was as

follows:

At about 8.45 a.m. on 05.08.2016 the petitioner kidnapped

the victim in his autorickshaw from her house and took her to

Arumana and subjected her to penetrative sexual assault at a

room in a lodge there. Later on 03.09.2016, 25.10.2016 and

12.11.2016 also the petitioner took her to the same lodge and

repeated similar sexual invasions. On 19.04.2017 the

petitioner took the victim in his autorickshasw to the parking

Crl.M.A.No.1 of 2023 in

area of a hospital at Aralummoodu and subjected her to

penetrative sexual assault inside the autorickshaw, which was

parked in the waste dumping area of the hospital. The

petitioner, having a wife and children, perpetrated the offence

against the victim after giving an assurance to marry her. The

trial court, believing the evidence tendered by the

prosecution, found the petitioner guilty.

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

only the last incident occurred within the jurisdiction of the

trial court and the evidence regarding that incident is totally

insufficient to find the allegations proved. Therefore, the trial

court did not have jurisdiction to try the petitioner. The victim

subsequently had eloped with another boy and after lapse of a

considerable period thereafter, this prosecution was launched.

The medical evidence is also quite improbable. Pointing out

those aspects the learned counsel for the petitioner maintains

Crl.M.A.No.1 of 2023 in

that the conviction is bad in law. Yet another contention urged

is that the victim sharply departed from her statement under

Section 164 of the Code she had given and for that reason

itself the judgment is liable to be set aside.

7. The departure from the statement under Section

164 of the Code pointed out by the eptitioner is not very

material. The narration by the victim regarding the incident

was credible. True that there was delay. The relationship

between the parties was such that the victim reposed

confidence on the petitioner. Hence, believing the words of the

petitioner the victim used to travel in his autorickshaw and

yield to his sexual desires. In such circumstances, the delay

cannot be considered very material. The petitioner, who is a

married man, gave assurance to marry the victim in order to

satiate his lust. Taking the aforesaid aspects, I am of the view

that findings entered into by the trial court cannot be said to

be incorrect at this stage. The question of jurisdiction is also

not now available to be countenanced for occurrence of the 5 th

incident is found proved.

Crl.M.A.No.1 of 2023 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 2023 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 13.12.2023.

Considering the circumstances in which the offence was

committed, the age of the victim, 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