Kerala High Court

Xxxxxx vs The State Of Kerala on 5 April, 2024

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
           Friday, the 5th day of April 2024 / 16th Chaithra, 1946
               CRL.M.APPL.NO.1/2023 IN CRL.A NO. 1694 OF 2023
SC 287/2021 OF ADDITIONAL SESSIONS COURT -1 ,(SPECIAL COURT), PATHANAMTHITTA
APPLICANT/APPELLANT:

     XXX

RESPONDENT/RESPONDENT:

     THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
     KERALA, ERNAKULAM - 682031


     Application praying that in the circumstances stated therein the

High Court be pleased to suspend the conviction and sentence imposed by

the judgment dated 18.10.2023 in S.C.No.287/2021 of the Additional

Sessions Court-I(Special Court) , Pathanamthitta , pending disposal of the

appeal,in the interst of justice.



     This Application coming on for orders upon perusing the application

and upon hearing the arguments of M/S. MANU RAMACHANDRAN, M.KIRANLAL,

R.RAJESH (VARKALA), SAMEER M NAIR, JOHNY K.GEORGE, SAILAKSHMI MENON,

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.Appeal No.1694 of 2023
   -----------------------------------------------------------
            Dated this the 5th 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, the victim has been put to

untold miseries. 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.

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

3. Heard the learned counsel for the appellant and the

learned Public Prosecutor.

4. The petitioner was convicted for the offence

punishable under Sections 376, 376(2)(n), 376(2)(f) and 506

of the Indian Penal Code, 1860 and under Sections 4 r/w 3, 6

r/w 5(l) and 6 r/w 5(n) 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 40 years.

5. The case of the prosecution was as follows:

The victim is the daughter of PW6. The petitioner is the

second husband of PW6. She was employed abroad. In 2014

while the victim was studying in Std.VIII, she was sexually

assaulted by the petitioner. Thereafter on several occasions

she was subjected to penetrative sexual assault by the

petitioner till March, 2018 at their residence. The trial court,

believing the evidence tendered by the prosecution, found

the petitioner guilty.

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

6. The learned counsel for the petitioner would submit

that there are serious discrepancies in the evidence of the

victim and there was delay in launching the prosecution. The

learned counsel for the petitioner would point out several

other inconsistencies in the case of prosecution. It is

submitted that the relationship between PW6 and the

petitioner ruined, resulting in filing of a petition for divorce by

PW6. It was in that context the present case was foisted.

Even though the incident was said to have been revealed to

PW6 atleast in November, 2019, the complaint was launched

only on 13.01.2020. For which there is no justification. It was

in the meantime the petition for divorce was instituted by

PW6, which probabilise the case of the petitioner that it is a

false prosecution. The learned counsel would point out that as

seen from the materials on record the petitioner was kept

under custody by the police even before registration of the

crime and that probabilises creation of the false case.

Therefore, the conviction is based on unreliable evidence, and

the petitioner is entitled to get the sentence suspended.

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

7. Evidently PW6 has been abroad since 2014. The

victim as well as his half brother, who is the son of the

petitioner, were under the guardianship of the petitioner.

While the mother was abroad, the victim was lodged in a

hostel, but during holidays, she was used to be taken to the

house of the petitioner. It is the definite version of the victim

that her incessant sexual assault by the petitioner were not

complained of only to see that her mother's second marriage

is not broken down. The development occurred prior to

launching of the prosecution that the mobile phone chats of

the victim with his lover was forwarded by the petitioner to

PW6 and the matrimonial disharmony were pointed as the

reason for foisting this case. The version of PW6 is that on

knowing the sexual abuse of her daughter, she had decided to

get divorce. The victim is a grown up girl now. When she

deposed before the court regarding such a sexual abuse by

none other than her stepfather, it is not able to say that for

the sake of her mother getting a divorce, such a false story

was created. Of course, if there is sufficient materials to

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

substantiate, such a contention of the petitioner, the same

could be accepted. But from the materials on record, prima

facie it cannot be said that the case is a foisted one. The delay

after getting the information about the incident by PW6 is

justified since she was abroad at that time and to initiate a

prosecution, she had to come home. Further, the inevitable

consequence of spoilage of the family relationships also has to

be taken into account. In the circumstances, I am unable, at

this stage, 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 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.

9. In Preet Pal Singh v. State of Uttarpradesh

[(2020) 8 SCC 645] the Apex Court held that unless there

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

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

iii) The court shall not re appreciate the evidence in order to decide the question whether or not the sentence should be suspended.

11. In the light of the law laid down in the aforesaid

decisions, the appellant is not entitled to get the sentence

suspended. No compelling reasons to suspend the sentence is

made out. The Apex Court in Mohanlal and another v.

State of Punjab [(2013) 12 SCC 519] held that when the

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

accused and the victim are in a fiduciary relationship, the

custody of the accused is that of a trustee and when he

commits a sexual assault on the victim, it becomes a case

where fence itself eats the crop. Such is a case on hand.