Kerala High Court
Thankappan 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.2/2023 IN CRL.A NO.122 OF 2023
SC 309/2019 OF ADDITIONAL SESSIONS COURT I, KOTTAYAM
APPLICANT/APPELLANT:
THANKAPPAN, AGED 65 YEARS,
S/O. KUNJUNJU KESAVAN, VELUTHEDATHU VEEDU NEAR VENNIMALA TAMPLE,
PAYYAPPADY KARA, PUTHUPPALLY VILLAGE KOTTAYAM DISTRICT, PIN -
686019.
RESPONDENT/RESPONDENT:
STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031.
Application praying that in the circumstances stated therein the
High Court be pleased to release Petitioner on bail pending disposal of
the Appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.LIJU.V.STEPHEN, INDU SUSAN JACOB,
Advocates 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.2 of 2023
in
Crl.Appeal No.122 of 2023
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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 execution
of 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, the victim, who was aged
only 8 years at the time of occurrence, has been put to severe
trauma and miseries. Considering the gravity of the offence
Crl.M.A.No.2 of 2023 in
and the tenure of the 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 offence
punishable under Section 376AB of the Indian Penal Code,
1860 and under Section 6 read with Section 5(l) & 5(m) of the
Protection of Children from Sexual Offences Act, 2012. The
term of sentence the petitioner has to undergo is
imprisonment for 20 years.
5. The charge levelled against the petitioner was that
on 29.03.2019 and a few occasions thereafter the victim was
subjected to penetrative sexual assault by fingering at her
genitals at the hall in his house. The trial court, believing the
evidence tendered by the prosecution found the petitioner
guilty and sentenced as mentioned above.
6. The learned counsel for the petitioner would submit
that there have been serious discrepancies in the evidence of
the victim and the delay in lodging the complaint. The learned
Crl.M.A.No.2 of 2023 in
counsel for the petitioner further would submit that the
enmity between the parents of the victim and the petitioner
was the reason for launching the prosecution. Lodging a
complaint by the sister of the petitioner before the police
alleging that the father of the victim molested her and there
was police intervention are proved. The parents of the victim
were under the impression that it was at the instance of the
petitioner such a complaint was lodged.
7. The learned Public Prosecutor would submit that
from the evidence on record, it is seen that such a complaint
was amicably settled and there was no persisting difference of
opinion between the parties. Further, involvement of the
petitioner in that dispute is not substantiated by any evidence
also.
8. When the victim gave cogent and convincing
evidence concerning the repeated incidents of sexual violence,
the plea of the petitioner challenging correctness of the
impugned judgment is not able to be accepted at this stage.
When there was evidence regarding the complaint against the
Crl.M.A.No.2 of 2023 in
father of the victim, it cannot be said that such a contention
was raised without any basis. That matter requires
consideration. Along with that the delay of four days in
launching the prosecution and the contradiction in the
evidence of the victim concerning the offending act are also
grounds available for the petitioner to assail the impugned
judgment.
9. The period of sentence imposed is 20 years. He
was convicted and sentenced on 17.10.2022. The contentions
raised by the petitioner to assail the impugned judgment
require deeper consideration. Considering that and other
mitigating circumstances, I am of the view that execution of
sentence can be suspended subject to conditions.
10. Accordingly, this petition is allowed and the
petitioner is granted bail on his executing a bond for
Rs.1,00,000/- (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
Crl.M.A.No.2 of 2023 in
within one month;
ii) He shall not enter the local limits of Kottayam East
Police Station till the final disposal of this appeal;
iii) During the bail period, he shall not get involved in any
offence; and
iv) He shall not contact or try to intimidate the victim or
witnesses examined in the case.
In case of breach of any of the above conditions, the
prosecution shall be at liberty to apply before this Court for
cancellation of the suspension of sentence.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
12-04-2024 /True Copy/ Assistant Registrar
