Shaji vs State Of Kerala
2024 Latest Caselaw 16785 Ker

Kerala High Court

Shaji 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.1/2023 IN CRL.A NO. 1846 OF 2023
           SC 500/2022 OF FAST TRACK SPECIAL COURT, NORTH PARAVUR
APPELLANT/ACCUSED:

     SHAJI ,AGED 55 YEARS, S/O ARJUNAN, KATTIPARAMBIL HOUSE, H.NO.2/26,
     NEERICODE, ALANGADU VILLAGE, ERNAKULAM DISTRICT

RESPONDENTS/COMPLAINANT & STATE:

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


     Application praying that in the circumstances stated therein the

High Court be pleased to suspend the execution of sentence passed by the

Fast Track Special Court , North Paravur by judgment dated 29.09.2023 in

SC No.500/2022 , during the pendency of the above Criminal Appeal so as to

secure the ends of justice.



     This Application coming on for orders upon perusing the application

and upon hearing the arguments of      M/S.T.P.SANTHOSH KUMAR, C.H.ABDUL

RASAC, 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 2023
                               in
                Crl.Appeal No.1846 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 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. 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.

Crl.M.A.No.1 of 2023 in

3. Heard the learned counsel for the appellant and the

learned Public Prosecutor.

4. The petitioner was convicted for the offence

punishable under Sections 367 and 377 of the Indian Penal

Code, 1860 and under Section 3(d) r/w 4(2), 5(l) r/w 6 and

5(m) r/w 6 of the Protection of Children from Sexual Offences

Act, 2012. The term of sentence the petitioner has to undergo

is imprisonment for 20 years.

5. The allegations levelled against the petitioner are as

follows:

On three days, namely, 15.04.2021, 16.04.2021 and

17.04.2021 by noon, the petitioner enticed by giving him gifts

and took the victim to his house. At the bedroom of his house,

the petitioner subjected the victim to unnatural sex. The trial

court, believing the evidence tendered by the prosecution,

found the petitioner guilty as mentioned above.

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,

Crl.M.A.No.1 of 2023 in

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. As submitted by the learned Public Prosecutor the

offence the petitioner has committed is serious in nature,

since a child of tender age was subjected to sexual violence

by an elderly person more than once. The petitioner was

convicted and sentenced on 29.09.2023. He has been in jail

since the said date. He was in jail for a month during the

period of investigation also. Whether the flaw in the evidence

that the friends of the victim to whom he had divulged the

incidents much earlier were not examined as witness and the

inordinate delay of one year would fail the prosecution require

consideration. Together with that, there are a few

embellishments in the evidence of the victim. Taking those

aspects into account and in view of the mitigating

circumstances that the petitioner has been under detention

Crl.M.A.No.1 of 2023 in

for a considerable period and his age, he can be granted bail

by suspending execution of the sentence, subject to

conditions.

8. 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) The petitioner shall deposit entire fine amount in the trial court within one month;

ii) He shall not enter the local limits of Aluva West 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.

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

12-06-2024 /True Copy/ Assistant Registrar