Kerala High Court
Suresh Kumar vs State Of Kerala on 5 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Wednesday, the 5th day of June 2024 / 15th Jyaishta, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.487 OF 2024
SC 383/2016 OF FAST TRACK SPECIAL COURT, NEDUMANGAD
APPLICANT/APPELLANT:
SURESH KUMAR, AGED 50 YEARS,
S/O THANKAPPAN PILLAI, KIZHAKKUMKARA PUTHAN VEEDU, KANYARUKUZHI,
MULAYILKONAM, KALLARA, THIRUVANANTHAPURAM, PIN - 695608.
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 sentence imposed by the Judgment
dated 20.01.2024 passed in SC No.383/2016 on the file of Fast Track
Special Judge's Court, Nedumangadu and release the appellant on bail,
pending disposal of the above appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of SHRI LIJU. M.P, Advocate 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.487 of 2024
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Dated this the 5th 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 execution
of 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 on the victim, a mentally
disabled boy, aged 17 years at the time of occurrence, has
been put to untold miseries. Considering the gravity and
Crl.M.A.No.1 of 2024 in
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 377 of the Indian Penal Code, 1860
and Section 6 r/w Section 5(k) & (l) and Section 12 r/w
Section 11(iii)(iv) of the Protection of Children from Sexual
Offences Act, 2012. The term of sentence the petitioner has to
undergo is imprisonment for 10 years.
5. The charge levelled against the petitioner was that
on 17.10.2015 at about 6.40 p.m. the petitioner took the
mentally disabled minor boy to an unoccupied house and
exhibited obscene pictures in his mobile phone and committed
unnatural sexual intercourse. The trial court, believing the
evidence tendered by the prosecution, found the petitioner
guilty as mentioned above.
Crl.M.A.No.1 of 2024 in
6. The learned counsel for the petitioner would submit
that there have been serious discrepancies in the evidence of
the victim and the delay in lodging the complaint. Therefore,
the conviction is based on unreliable and insufficient evidence,
and the appeal will be allowed. Having gone through the
judgment and considered the available materials, prima facie,
I am unable to agree with the contention that the findings
leading to the conviction of the petitioner is wrong.
7. The learned counsel for the petitioner further would
submit that this crime was registered as a counterblast. The
counsel alleges that the father of the victim, PW8, used to
peep into the bathroom of the appellant while his wife was
taking bath. In connection with that incident, the appellant
assaulted the father of the victim. In retaliation, the present
crime was registered implicating the petitioner as an accused.
It is also submitted that no document is produced to prove
the mental disability of the victim and the reason stated for
the delay in lodging the complaint is quite insufficient.
Crl.M.A.No.1 of 2024 in
8. The period of sentence imposed is 10 years. The
petitioner was convicted and sentenced on 20.01.2024. He
has been jail since that date. The contentions of the petitioner
to assail the impugned judgment, which are made mention of
above, require deeper consideration. For that and other
mitigating circumstances, I am of the view that execution of
sentence can be suspended subject to conditions.
9. Accordingly, this petition is allowed and the
petitioner is granted bail on his executing a bond for
Rs.1,00,000/- (Rupees one lakh only), with two solvent
sureties for the like amount each, to the satisfaction of the
trial court, subject to the following conditions:
i) He shall deposit entire fine amount in the trial court within
one month;
ii) He shall not enter the limits of Pangode Police Station till the
final disposal of this appeal;
iii) During the bail period, he shall not get involved in any
offence; and
iv) He shall not contact or try to intimidate the victim or
witnesses examined in the case.
Crl.M.A.No.1 of 2024 in
In case of breach of any of the above conditions, the
prosecution shall be at liberty to apply before this Court for
cancellation of the suspension of sentence.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
05-06-2024 /True Copy/ Assistant Registrar
