Kerala High Court
Saravanakumar vs State Of Kerala on 4 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Thursday, the 4th day of April 2024 / 15th Chaithra, 1946
CRL.M.APPL.NO.1/2021 IN CRL.A NO.411 OF 2021
SC 191/2019 OF THE ADDITIONAL SESSIONS COURT-I (SPECIAL COURT), PALAKKAD
APPLICANT/APPELLANT:
SARAVANAKUMAR, AGED 41 YEARS,
S/O. PARAMASIVAN, PANNAPPALLAM,
PANTHAKKAL, AMMANPATHI, ALIYAR POST,
POLLACHI, TAMIL NADU.
RESPONDENT/RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence imposed on the applicant by
the judgment, conviction and sentence in S.C.No.191/2019 of the Court Ist
Addl. Sessions Judge (Special Judge), Palakkad dated 25.06.2020 and
release the applicant on bail pending disposal of the above Criminal
Appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of Shri Rajendran T.G., Advocate 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.1 of 2021
in
Crl.Appeal No.411 of 2021
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Dated this the 4th 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. 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 17 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 2021 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 offences
punishable under Section 323, 363, 376(1) and 392 of the
Indian Penal Code, 1860 and under Section 6 read with
Section 5(i) 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:
On 06.12.2018 the victim along with his cousin, who is her
lover also, went to Meenkara Dam. The petitioner, pretending
to be the security staff in the Dam site, threatened the victim
and her cousin, who was examined as PW11 that they would
be implicated in criminal case and entrusted with the police.
He forced the victim to board a private bus alone. He followed
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the bus and got the victim alighted from the bus. The
petitioner, under threat and coercion, took the victim in his
motorcycle to a forest area, assaulted her causing hurt and
subjected her to forcible sexual intercourse. The petitioner
snatched off her gold chain weighing 4.530 grams. She was
thereafter left at a nearby bus stop by the petitioner. 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.
Identity of the petitioner was not proved by adducing reliable
evidence. In the absence of test identification parade and as
the petitioner was shown to the victim by the police, his
identification by the victim and PW11 before the court cannot
be given any credence. Circumstantial evidence, such as
collection of materials from the place of occurrence and
chemical examination for detecting the hair samples, blood,
etc. at the site was not done in order to substantiate the oral
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testimony of PW1. That would inevitably fails the prosecution.
The age of the victim was not duly proved. Therefore, the
conviction is based on unreliable evidence, and the petitioner
is entitled to get the sentence suspended.
7. The incident took place at noon. The victim was
aged 17 years at the time of occurrence. PW11 was also
sufficiently grown up. The incident in question lasted for quite
a long period. The nature of incident was such that both of
them did obtain sufficient opportunity to see the petitioner in
close proximity. In such a circumstances, identification of the
petitioner by the victim as well as PW11 before the court can
well be relied on even in the absence of any test identification
parade. Similarly, the other contentions raised by the learned
counsel for the petitioner are not able to be accepted at this
stage. The reasons stated for the delay is quite convincing.
When the victim went along with PW11 without informing her
parents, the reluctance on her part to disclose the incident
immediately is quite decipherable. She was examined by PW9
Doctor and confirmed her sexual abuse as she alleged.
Crl.M.A.No.1 of 2021 in
Besides sexual abuse, the petitioner had seriously assaulted
the victim and snatched away her gold ornament.
8. The nature of the offence the petitioner is proved
to have committed is gruesome and unjustifiable invasion on
the person, privacy and pride of an young girl. Hence, the
petitioner is not entitled to any leniency. There is absolutely
no mitigating circumstance in his favour. 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.
9. The contention of the learned counsel for the
petitioner regarding insufficiency of evidence to prove the age of
the victim is based on the law laid down by the Apex Court in
P.Yuvaprakash v. State, Rep.by Inspector of Police [2023
(4) KLT 563(SC)]. That contention is also not able to be
appreciated. The birth certificate of the victim is Ext.P29. When
the said document, which was issued by the statutory authority
is duly proved, it satisfies the requirements of Section 94 of the
Juvenile Justice (Care and Protection of Children) Act, 2015.
Crl.M.A.No.1 of 2021 in
10. 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.
11. 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.
12. 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;
1. 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;
2. The court should be convinced that there is a fair chance for
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acquittal on the basis of the matters perceivable from the face
of the record; and
3. The court shall not re appreciate the evidence in order to decide
the question whether or not the sentence should be suspended.
13. It is true that the petitioner has been in jail since
the date of his arrest on 09.12.2018 in connection with this
case. But considering the nature of the offence and the period
of sentence he has to undergo is 20 years, there is no eason
to suspend execution of the sentence. 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
04-04-2024 /True Copy/ Assistant Registrar
