Kerala High Court
Akhil 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.1/2023 IN CRL.A NO. 1454 OF 2023
SC 821/2020 OF FAST TRACK SPECIAL COURT ,THRISSUR
APPELLANT/ACCUSED(IN CUSTODY):
AKHIL, AGED 23 YEARS, S/O.ALEX KALICHATH HOUSE, LALOOR MATHAIPURAM
COLONY DESOM, THRISSUR, PIN - 680012
RESPONDENT/COMPLAINANT:
1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2. SUB INSPECTOR OF POLICE NEDUPUZHA POLICE STATION., PIN - 680007
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of the sentence passed
against the petitioner in order dated 31.07.2023 in S.C. 821/2020 on the
files of the (Fast Track) Special Judge,Thrissur to order his release on
bail, pending disposal of the above Appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.E.VIJIN KARTHIK, JITHIN VARGHESE,
Advocates for the petitioner, and of PUBLIC PROSECUTOR for the respondent,
the court passed the following:
P.G. AJITHKUMAR, J.
-----------------------------------------------------------
Crl.M.A.No.1 of 2023
in
Crl.Appeal No.1454 of 2023
-----------------------------------------------------------
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 9 years at the
time of occurrence, has been put to untold miseries.
Crl.M.A.No.1 of 2023 in
Considering the gravity and nature of the 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 the offence
punishable under Section 376AB of the Indian Penal Code,
1860 and under Sections 6 r/w 5(l) and 6 r/w 5(m) 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 between 03.02.2018 and 31.05.2019 the
petitioner induced the victim girl to come to his house and
had showed her pornographic videos. She was subjected to
sexual assault at his house. Later, on a day in May 2019 the
petitioner by trespassing into the house of the victim
subjected her to penetrative sexual assault. By such act the
victim was even afflicted with physical illness and infection.
Crl.M.A.No.1 of 2023 in
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
there was enmity to the petitioner for the mother of the victim
and that had triggered to initiate a false prosecution against
him.
7. Having gone through the judgment and heard the
submissions on either side, I find no reason to accept the
contention that on account of any enmity or grudge such a
prosecution was initiated. The evidence tendered by the
prosecution satisfactorily proved commission of the offence.
The delay and the inconsistencies appeared in the evidence
are duly explained also.
8. The father of the victim was a quarrelsome person.
The mother used to be away and in such a vulnerable
condition, the victim was subjected to sexual assault on
Crl.M.A.No.1 of 2023 in
multiple occasions. The victim has to undergo the ordeal of
continuous treatment as a result of the offence perpetrated
against her.
9. 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.
10. 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.
11. 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;
Crl.M.A.No.1 of 2023 in
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
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.
12. The petitioner was convicted on 31.07.2023.
Considering the circumstances in which the offence was
committed and 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
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
12-04-2024 /True Copy/ Assistant Registrar
