Kerala High Court

Xxxxxx vs State Of Kerala on 3 April, 2024

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
         Wednesday, the 3rd day of April 2024 / 14th Chaithra, 1946
               CRL.M.APPL.NO.1/2023 IN CRL.A NO.1512 OF 2023
             SC 446/2020 OF FAST TRACK SPECIAL COURT, KASARAGOD
PETITIONER/APPELLANT:

     XXX

RESPONDENT/RESPONDENT:

     STATE OF KERALA, REPRESENTED BY THE SHO,
     ADHUR POLICE STATION,KASARAGOD, THROUGH THE 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 execution of the sentence passed by
the Fast Track Special court, Kasaragod in S.C.No.446/2020 dated
26.04.2023 against the appellant, pending disposal of the Criminal Appeal.


     This Application coming on for orders upon perusing the application
and upon hearing the arguments of SHRI KODOTH SREEDHARAN, 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 2023
                                 in
                     Crl.A.No.1512 of 2023
       ------------------------------------------------------
              Dated this the 3rd 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 8 years at the

time of occurrence, has been put to untold miseries.

Considering the gravity and nature of the offence and the

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

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 Sections 376AB, 354(A)(1)(i) of the Indian

Penal Code, 1860 and under Section 6 read with 5(i), 6 read

with 5(m), 10 read with 9(m) and 10 r/w 9(l) 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 is as

follows:

Victim girl was aged 8 years at the time of occurrence.

Petitioner is a relative of the victim. At about 11.30 a.m on

20.04.2020, the petitioner had committed penetrative sexual

assault on the victim by inserting fingers to her vagina at the

toilet near his house. The victim sustained injuries as a result of

the said act. On an earlier occasion, the petitioner subjected

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

the victim to sexual assault at the hall of the house as well. 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. The evidence tendered by the prosecution to prove

age of the victim is insufficient. In the light of the law laid down

by this Court, in Alex v. State of Kerala [2021(4) KLT 480],

unless the prosecution proves the age of the victim, no

conviction under the POCSO Act is possible. For that reason

itself, the conviction of the petitioner is illegal. It is further

contended that statement of the victim under Section 164 of the

Code was not recorded which is violative of the guidelines issued

by the Apex Court in State of Karnataka by Nonavinakere

Police v. Shivanna alias Tarkari Shivanna [(2014) 8 SCC

913]. Non recording of the statement of the victim under

Section 164 of the Code is violative of also Section 25(1) of the

POCSO Act. The further contention of the learned counsel for

the petitioner is that PW11 is a hostile witness, but her evidence

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was placed reliance on by the trial court to convict the petitioner

which also is an illegality. Therefore, the conviction is based on

unreliable evidence, and the petitioner is entitled to get the

sentence suspended.

7. I am unable to agree with the contentions of the

learned counsel for the petitioner that the findings leading to

conviction of the petitioner is wrong even prima facie. The

guideline issued in Shivanna (supra) and also that contain in

Section 25(1) of the POCSO Act are insistence to follow the

procedure. Even if there is non compliance of such a guideline

that by itself does not vitiate the prosecution altogether. The

question is one of prejudice and that is a matter to be decided

in the appeal. The school admission register where PW1 studied

was brought to Court and its copy was admitted in evidence.

Mother of victim did not depose substantiating the entries in

the school register. The trial court acted upon the school register

as proof of age of the victim after a proper appreciation of the

evidence. At this stage the said finding cannot be set at naught

applying the law laid down by this Court in Alex (supra).

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8. The Apex Court in Atul Tripathy 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 for acquittal on the basis of the matters perceivable from the face of the record; and

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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 26.04.2023.

Considering the circumstances in which the offence was

committed, the age of the victim and that the petitioner who

was a relative committed such a serious offence against 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, especially when there is

sufficient medical evidence also to confirm the occurrence. No