Kerala High Court

Xxxxxx vs State Of Kerala 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
                   CRL.M.APPL.NO.1/2024 IN CRL.A NO.120 OF 2024
SC NO.1029/2022 OF SPECIAL COURT FOR THE TRIAL OF OFFENCES UNDER THE PROTECTION
                  OF CHILDREN FROM SEXUAL OFFENCES ACT, MANJERI
  APPLICANT/APPELLANT:

       XXX

 RESPONDENT/COMPLAINANT:

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


      Application praying that in the circumstances stated in the
 affidavit filed therewith the High Court be pleased to allow this Crl.M.A.
 and suspend the further execution of the substantive sentences of
 imprisonment imposed against the Applicant/Appellant/Accused in
 S.C.1029/22 by the judgment of conviction and sentnece dated 12.09.2023
 passed by the Court of the Special Court (POCSO), Manjeri, till the
 disposal of the above appeal in the interest of justice.


      This Application coming on for orders upon perusing the application
 and upon hearing the arguments of M/S.MANU TOM, BALAMURALI K.P.,
 K.R.JITHIN, SHAJI T.M., RENIL IQUBAL K., HARIPRIYA.M, AMAL C. PETER,
 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 2024
                               in
                Crl.Appeal No.120 of 2024
  -----------------------------------------------------------
           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)(n), 376(2)(f) and 376(3) of

the Indian Penal Code, 1860, Section 5(l) & (n) read with

Section 6 of the Protection of Children from Sexual Offences

Act, 2012 and Section 75 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 charge levelled against the petitioner is as

follows:

The victim is the daughter of the petitioner. They along with

other members of their family, were residing together. While

she was studying in Std.VII, the petitioner started to sexually

abuse her. She was so abused by subjecting her to

Crl.M.A.No.1 of 2024 in

penetrative sexual assault for a period of two years. 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. It is

submitted that even the mother and other members in the

family did not support the case of the prosecution. What the

victim stated was that she was physically abused, which did

not necessarily mean sexual abuse. It is also submitted that

the victim had a love affair and the petitioner warned her in

that regard. The case was therefore foisted by her at the

instance of her lover. The learned counsel for the petitioner

would also point out that the trial court acted upon Exts.P2

and P3, which are the first information statement and the

statement given under Section 164 of the Code as primary

evidence, which shows the palpably wrong way of

Crl.M.A.No.1 of 2024 in

appreciating evidence and resultant wrong findings. The

defence case was not considered by the trial court, instead

acting upon the previous statements of the victim, recorded

the conviction, which is wrong. That along with the fact that

the petitioner has been in jail since 12.09.2023 entitle the

petitioner to get the sentence suspended.

7. The learned Public Prosecutor would submit that

the circumstances resulting in initiation of the prosecution

establishes the genuineness of the case. The victim was so

anxious about a possible pregnancy on account of the

continuous sexual abuse by her father. Her teacher on

noticing her distress got her counselled. The incidents came

out and case was came to be initiated in that way. The version

of the victim in court is amply corroborated by the medical

evidence. In such circumstances, the findings of the trial court

cannot be found fault with. Accordingly, the learned Public

Prosecutor seeks to dismiss the petition.

8. From the material on record it is seen that the

medical evidence sufficiently establishes sexual abuse of the

Crl.M.A.No.1 of 2024 in

victim. Although an allegation that a false case was initiated,

the petitioner did not substantiate that contention. When the

victim deposed before the court against her father and the

same gets corroboration from independent evidence, such as

previous statement and the medical evidence, it certainly

points to the guilt of the petitioner. True, there was delay and

other members of the family did not support the case of the

victim. It may be noted that the natural doubt entertained by

her class teacher and the ensued counselling of the victim

resulted in the revelations and that resulted in initiation of the

prosecution. In the said circumstances, I am not able to

accept the contentions of the learned counsel for the

petitioner and say the conviction is prima facie wrong.

9. 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.

Crl.M.A.No.1 of 2024 in

10. 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.

11. 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 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.

12. 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

Crl.M.A.No.1 of 2024 in

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.