Kerala High Court
Xxx 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.53 OF 2023
SC 232/2019 OF THE FAST TRACK SPECIAL COURT, KOYILANDY
APPLICANT/APPELLANT/ACCUSED:
XXX
RESPONDENT/RESPONDENT/COMPLAINANT:
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 sentence imposed on the
applicant/appellant by the judgment dated 11.11.2022 in SC No.232/2019 of
the Fast Track (Special) Court, Koyilandy, to secure the ends of justice.
This Application coming on for orders upon perusing the
application and upon hearing the arguments of M/S.P.K.VARGHESE,
M.T.SAMEER, P.S.ANISHAD, K.R.ARUN KRISHNAN, DHANESH V.MADHAVAN, JERRY
MATHEW, BIJU KUMAR, REGHU SREEDHARAN, APARNA ANIL, RAMEEZ M. AZEEZ,
NAMITHA K.S., SUDARSANAN U., 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.53 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).
2. 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.
3. The learned Public Prosecutor opposes the petition by
contending 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 is a child has been put to
untold miseries. Considering the gravity of the offence and the
tenure of the sentence imposed, the petitioner is not entitled to get
an order to suspend the sentence.
4. Heard the learned counsel for the petitioner and the
learned Public Prosecutor.
Crl.M.A.No.1 of 2024 in Crl.Appeal No.53 of 2023
5. The petitioner was convicted for the offence punishable
under Section 377 of the Indian Penal Code, 1860 and Section 5(l)
r/w 6 and 9(l) r/w 10 of the Protection of Children from Sexual
Offences Act (POCSO) Act. The term of sentence the petitioner has
to undergo as per the impugned judgment is imprisonment for 15
years.
6. The charge leveled against the petitioner was that at
about 09:45 p.m., in a day in the month of February 2018, the
petitioner was subjected the victim to sexual assault by kissing and
fondling his penis at the room of the Mukri in Juma Masjid where
the petitioner was an Ustad. Again on a day in March 2018, about
09:45 p.m, the petitioner again had subject to the victim to
penetrative sexual assault by having anal sex.
7. 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. Therefore,
the conviction is based on unreliable evidence, and the petitioner
is entitled to get the sentence suspended. I am unable to agree
with the contention of the learned counsel for the petitioner that
the findings leading to conviction of the petitioner is wrong even
prima facie.
8. The learned Public Prosecutor would point out that the
petitioner involved in another crime of similar nature and he being
Crl.M.A.No.1 of 2024 in Crl.Appeal No.53 of 2023
the teacher committed such an offence against the victim. Hence
he is not entitled to get execution of the sentence suspended.
9. Besides this case, the petitioner was an accused in SC
No.459 of 2020. The allegations in that case was also similar in
nature. However, after trial, the petitioner was acquitted in that
case as per the judgment dated 08.09.2020. The learned counsel
for the petitioner would submit that the victim herein had settled
the matter with the petitioner and for that reason also he is
entitled to be released on bail. I am not reckoning the said
submission inasmuch as the trial court acting upon the evidence of
the victim found the petitioner guilty and convicted him. However,
the fact that the petitioner has been in jail since 11.12.2022 and
also was under detention for the purpose of this case for about two
months during trial and he is aged about 55 years are mitigating
circumstances. A lenient view can therefore be taken in the
matter of suspension of the sentence.
10. Accordingly, this petition is allowed and the petitioner
is granted bail on his executing a bond for Rs.1,00,000/- (Rupees
one lakhonly), 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 two months;
Crl.M.A.No.1 of 2024 in Crl.Appeal No.53 of 2023
(ii) He shall not enter Koyilandy Police Station
limit where the victim resides 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
Dxy/dkr
12-04-2024 /True Copy/ Assistant Registrar
