Kerala High Court

Vinod Kumar M vs State Of Kerala on 12 June, 2024

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
         Wednesday, the 12th day of June 2024 / 22nd Jyaishta, 1946
               CRL.M.APPL.NO.2/2023 IN CRL.A NO.1682 OF 2023
  SC 111/2018 OF SPECIAL COURT FOR ATOROCITIES AGAINST WOMEN AND CHILDREN
                    (ADDL.SESSIONS COURT - I), KASARAGOD
APPLICANT/APPELLANT/ACCUSED:

     VINOD KUMAR M., AGED 39 YEARS,
     S/O CHURIKADAN KRISHNAN NAIR,
     MANIYARA VEED, UMMICHI,
     MADIAKKAI VILLAGE,
     KASARAGOD DIST.

RESPONDENT/RESPONDENT/COMPLAINANT:

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


     Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence imposed on the petitioner
herein, in SC No.111 of 2018 on the files of Special Court for Atrocities
against Women and Children (Additional Sessions Court - I), Kasaragod.


     This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.P.K.SUBHASH, JUBAIRIYA SALIM,
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.2 of 2023
                               in
                Crl.Appeal No.1682 of 2023
  -----------------------------------------------------------
          Dated this the 12th 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 the victim girl, who was aged

only 17 years at the time of occurrence, has been put to

untold miseries. Considering the gravity and nature of the

Crl.M.A.No.2 of 2023 in

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. Despite receipt of notice, the de

facto complainant did not chose to appear before this Court.

4. The petitioner was convicted for the offence

punishable under Section 376(2)(n) of the Indian Penal Code,

1860, Sections 3(a) and 5(l) r/w 6 of the Protection of

Children from Sexual Offences Act, 2012 and Section 3(1)(xii)

of the Scheduled Castes and the Scheduled Tribes (Prevention

of Atrocities) Act, 1989. The longest term of sentence the

petitioner has to undergo as per the impugned judgment is

imprisonment for 15 years.

5. The prosecution case was as follows:

The victim belongs to a Scheduled Tribe community. Her

mother expired a few years back. She was residing along with

her father. The petitioner was an autorickshaw driver. He

developed intimacy to the victim and misusing that relationship

Crl.M.A.No.2 of 2023 in

and on threat, he took the victim during night hours on

04.03.2013 to the house owned by one Balakrishnan. At the

veranda of that uninhabited house the petitioner committed

rape on the victim. Later, during night hours on several days,

the petitioner had taken the victim to the same house and

committed rape on her. 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. It

is submitted that the assertions in the F.I.statement launched

by the victim are totally against the case of the prosecution.

Even the victim did not specifically stated that she was

subjected to penetrative sexual assault rather than stating

that there were physical contacts. The medical evidence does

not corroborate the version of the victim. She testified that

she was used to be contacted by the petitioner through

mobile phone, but the prosecution did not choose to collect

and produce the call data records in order to substantiate that

Crl.M.A.No.2 of 2023 in

fact. Regarding age of the victim also, it is contended that the

evidence let in by the prosecution is insufficient.

7. The submissions of the learned Public Prosecutor

are that the sexual offence perpetrated by the petitioner was

so devastating. Not only that the petitioner subjected the

victim to sexual assault, but also he after going abroad,

instigated his friends also to sexually exploit the victim. A few

persons thus had sexually exploited the victim making use of

her relationship with the petitioner. Thus, the offence the

petitioner has committed is so heinous and he is not entitled

to get the benefit of Section 389(1) of the Code.

8. It is evident from the material brought on record

that the victim was living in a hapless condition. She had

nobody else to ventilate her grievances. She had to leave her

house owing to the torture by her father. It was when she was

wandering on the road, she was taken to the police station by

a good samaritan. Thereafter, the case was initiated. The

discrepancies occurred in her evidence are to be considered in

the above context. So is in the case of delay also.

Crl.M.A.No.2 of 2023 in

9. There were prosecutions against others who

sexually exploited the victim. The learned counsel for the

petitioner would submit that execution of the sentence

imposed on all those persons was suspended and the

petitioner is entitled to get the same benefit. But the

petitioner stands in a different footing. It was the petitioner,

who started abusing the victim. In fact, the acts of the

petitioner had resulted in the victim falling prey at the hands

of others. The trial court, after considering the entire evidence

on record, found the petitioner guilty. Having considered the

submissions of either and gone through the judgment, I find

no reason at this stage to hold that the findings of the trial

court are wrong.

10. 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.2 of 2023 in

11. 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.

12. 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.

13. The petitioner was convicted on 08.02.2023.

Considering the circumstances in which the offence was

committed and other aspects, I am of the view that the

Crl.M.A.No.2 of 2023 in

petitioner does not deserve any leniency. As stated, the

contentions of the petitioner that his conviction is infirm and

there is every chance for succeeding in the appeal, is not

prima facie tenable. No mitigating or compelling circumstance

entitling the petitioner to get the execution of the sentence

suspended is substantiated. Viewed those aspects in the light