Kerala High Court
Danish.P.C vs State Of Kerala on 6 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Tuesday, the 6th day of February 2024 / 17th Magha, 1945
CRL.M.APPL.NO.1/2023 IN CRL.A NO.1780 OF 2023
SC 743/2021 OF THE FAST TRACK SPECIAL COURT, KOZHIKODE
APPLICANT/APPELLANT:
DANISH P.C., AGED 37 YEARS, S/O CHRISTOPHER, THARAYIL HOUSE, KEEZHAR
MADAM PARAMBU, KALLAI (P.O.), KOZHIKODE, KERALA,PIN - 673003.
RESPONDENT/RESPONDENT:
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 conviction and sentence imposed in
the Judgment in S.C.No.743/2021 of the Court of the Fast Track Special
Judge, Kozhikode dated 17.11.2023, till the disposal of Criminal Appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.M.DINESH, BIJU RAJAN K.R., Advocates
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 2023
in
Crl.Appeal No.1780 of 2023
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Dated this the 6th day of February, 2024
ORDER
This is a petition filed under Section 389(1) of the Code
of Criminal Procedure, 1973. The appellant/petitioner seeks to
suspend the sentence by contending that there is every
possibility for allowing the appeal and to acquit him of all the
offences. He was convicted for various offences and the
longest period of sentence is rigorous imprisonment for a
period of 20 years for the offence punishable under Section 6
of the Protection of Children from Sexual Offences Act, 2012
(PoCSO Act).
2. The learned Public Prosecutor opposed the petition
by contending that there is ample evidence for the conviction
of the petitioner. It is also contended that being a neighbour,
the petitioner subjected PW1, who is aged 14 years, to sexual
assault repeatedly, and hence he does not deserve any
leniency.
Crl.M.A.No.1 of 2023 in
3. Heard the learned counsel for the petitioner and
the learned Public Prosecutor.
4. The learned counsel for the petitioner would submit
that the evidence of PW1, the victim, is quite unreliable for, the
same runs contrary to his previous statements, including his
statement recorded under Section 164 of the Code. During
examination in court, he has embellished his version by adding
that he was subjected to penetrative sexual assault by the
petitioner inserting his penis to his anus. It is further submitted
that the report of medical examination does not reflect
indications of any penetrative sexual assault. It is also his
submission that the report of Cyber Forensic Analysis of the
mobile phone of the petitioner did not fetch any evidence
indicative of having a multimedia porn file. Pointing out the said
circumstances, the learned counsel maintains that this is a case
where the petitioner is entitled to get the sentence suspended.
5. On going through the judgment and the statement
of PW1 that was recorded under Section 164 of the Code,
embellishment in the evidence of PW1 regarding the sexual
Crl.M.A.No.1 of 2023 in
assault committed by the petitioner to a certain extent is
discernible. What PW1 stated in court regarding insertion
through the anus was not seen stated before the Magistrate
or in the F.I.statement. However, the other acts of sexual
assault and causing bodily injuries to the victim by the
petitioner are cogent, consistent and devoid of any
inconsistencies. Even if the contention of the petitioner as
regards the penetrative sexual assault is sound to a certain
extent, commission of all the other offences by the petitioner
is supported by sufficient evidence. The petitioner is a
neighbour. Considering the aforesaid facts, suspension of
sentence and release of the petitioner on bail at this stage is
not conducive.
6. 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, criminal
antecedents of the convict, impact on public confidence in
court, etc. before ordering suspension of sentence.
Crl.M.A.No.1 of 2023 in
7. 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.
8. On considering the facts and circumstances of this
case in the light of the law laid down in the aforesaid
decisions, I am of the view that the petitioner is not entitled
to get the sentence suspended. The petition is accordingly
dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
06-02-2024 /True Copy/ Assistant Registrar
