Kerala High Court
Xxxxxx vs State Of Kerala on 15 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Thursday, the 15th day of February 2024 / 26th Magha, 1945
CRL.M.APPL.NO.1/2023 IN CRL.A NO.1890 OF 2023
SC 1116/2022 OF FAST TRACK SPECIAL COURT, PALAKKAD
APPLICANT/APPELLANT:
XXX
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 pass an order suspending the execution of
sentence and fine passed against the petitioner by judgment dated
26.10.2023 in S.C.No.1116/2022 on the files of the Fast Track Special
Court, Palakkad and direct release of the petitioner on bail, till the
disposal of the above Crl.Appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.RAJESH SIVARAMANKUTTY, MAYA C.P.,
K.V.ANTONY, VIJINA K., ARUL MURALIDHARAN, 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.1890 of 2023
-----------------------------------------------------------
Dated this the 15th day of February, 2024
ORDER
This is a petition filed under Section 389(1) of the Code
of Criminal Procedure, 1973. The appellant is the petitioner.
He stands convicted for the offences punishable under
Section 354B of the Indian Penal Code and Sections 9(l) and
9(n) r/w Section 10 of the Protection of Children from Sexual
Offences Act, 2012. The longest period of imprisonment the
petitioner has to undergo in terms of the sentence imposed is
seven years.
2. Heard the learned counsel for the petitioner and
the learned Public Prosecutor.
3. The victim is a girl child aged 15 years. The
appellant is her cousin. Charge against him was that during
the period between 30.12.2019 and 30.07.2022 he sexually
assaulted the victim several times. After disrobing, he
caressed her breasts and kissed her. His conviction is assailed
Crl.M.A.No.1 of 2023 in
on many grounds, essentially, on the grounds that there is
delay in lodging the complaint and the victim raised similar
allegations against another person also, and the unreliable
nature of the evidence of the victim. Her evidence alone is the
direct evidence available to prove the guilt of the petitioner.
4. The circumstances in which the victim could come
forward to reveal the sexual assault first to her class teacher
and then in the counselling, are stated by her convincingly.
The delay thus has been properly explained. The oral
testimony of the victim/PW1, who was a student of Std.X, was
consistent throughout. The fact that she was tortured at the
hands of another person is not a reason to disbelieve her. The
petitioner is none other than her cousin. When a close relative
behaves so, putting the victim to such a trauma and
precarious situation, her evidence, even if it contains minor
inconsistencies, cannot be said to be unreliable. The trial
court, after having a detailed consideration, found her
evidence reliable. From the materials on record, it is not able
to say at this stage that the said findings are incorrect. No
Crl.M.A.No.1 of 2023 in
mitigating circumstance is pointed out so as to enable the
petitioner to get the sentence suspended.
In the above circumstances, I am of the view that this
petition is liable to be dismissed. Hence, the petition is
dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
15-02-2024 /True Copy/ Assistant Registrar
