Kerala High Court
Xxxxxx vs State Of Kerala, Represented By Sho Of ... on 4 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Tuesday, the 4th day of June 2024 / 14th Jyaishta, 1946
CM.APPL.NO.1/2024 IN CRL.A NO.68 OF 2024
SC 21/2022 OF SPECIAL COURT, FAST TRACK SPECIAL COURT - II, THRISSUR
APPLICANT/APPELLANT/ACCUSED NO.1:
XXXX
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY SHO OF MANNUTHY POLICE STATION
THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,
KOCHI, PIN - 682031.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence imposed on the Applicant by
the judgment of guilty, conviction and sentence in S.C.No.21 of 2022 dated
21.10.2023 on the files of the Special Judge, Fast Track Special Court -
II, Thrissur (Sessions Division, Thrissur) 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 M/S.REBIN VINCENT GRALAN, DINESH G
WARRIER, VIMAL VIJAY, 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 2024
in
Crl.Appeal No.68 of 2024
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Dated this the 4th day of June, 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 15 years at the
time of occurrence, has been put to untold miseries.
Crl.M.A.No.1 of 2024 in
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.
3. Heard the learned counsel for the appellant and the
learned Public Prosecutor.
4. The petitioner was convicted for the offence
punishable under Section 376(2)(f) of the Indian Penal Code,
1860, Section 3(b) r/w 4(1) and 5(n) r/w 6(1) of the
Protection of Children from Sexual Offences Act, 2012 and
under Section 77 of the Juvenile Justice (Care and Protection
of Children) Act, 2015. The longest term of sentence the
petitioner has to undergo as per the impugned judgment is
imprisonment for 20 years.
5. The case of the prosecution is as follows:-
The petitioner is the 1 st accused. The 2nd accused is the
cousin of the victim's mother. The father of the victim was a
lorry driver, who used to be away from home. The mother of
the victim was abroad. The victim was therefore used to be
entrusted with the custody of the 2nd accused. While they
Crl.M.A.No.1 of 2024 in
were in the house of the petitioner, the incident in question
occurred. It was on 08.11.2021 between 2.00 a.m. and 3.00
a.m. The victim was brought to that house on the previous
day. During night she was given intoxicating drug by the 2 nd
accused. The petitioner entered her room and subjected her
to penetrative sexual assault. He did fingering and pressed
her breast and kissed on her lips. 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.
Therefore, the conviction is based on unreliable evidence, and
the petitioner is entitled to get the sentence suspended. The
learned counsel for the petitioner would submit that from the
scene mahazar it could be seen that there were three rooms
in the house, all having attached toilets. That would
improbabilise the version of the victim that she was asked to
keep the door unbolted since others in the house also wanted
Crl.M.A.No.1 of 2024 in
to use the toilet. The victim accompanied the petitioner on the
very next day in connection with her Plus One admission.
When she accompanied the petitioner without any hesitation,
the allegation of sexual assault cannot be believed at all. The
allegation of intoxication stands contradicted by the oral
testimony of the victim itself. Lack of medical evidence also is
pointed out.
7. The trial court considered in detail about the
possibility of a false prosecution. True, the victim went to the
school for her admission along with the petitioner. When she
was under the guardianship of the petitioner and the 2 nd
accused and her parents were away, there was no other way
for the victim other than to accompany the petitioner to
attend the admission process. There is nothing in evidence to
substantiate that the victim or her parents had reasons to
foist a case against the petitioner. Believing the 2 nd accused,
the victim was entrusted with her and the petitioner. That
rules out any enmity between them. Viewed in the light of the
aforesaid facts and other circumstances, it cannot be said that
Crl.M.A.No.1 of 2024 in
the version of the victim in regard to the allegations against
the petitioner are false. When a person in trust did such an
offence, no leniency can be shown in his favour. I am unable
to agree with the contention of the learned counsel for the
petitioner at this stage that the findings leading to conviction
of the petitioner is wrong.
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
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
Crl.M.A.No.1 of 2024 in
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
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.
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
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.
There cannot be any leniency in favour of the petitioner. On
Crl.M.A.No.1 of 2024 in
merits also, the petitioner has no right to get the sentence
suspended.
Hence, the petition is dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
04-06-2024 /True Copy/ Assistant Registrar
