Kerala High Court
Shibukumar @ Shibu vs State Of Kerala on 20 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Thursday, the 20th day of June 2024 / 30th Jyaishta, 1946
CRL.M.APPL.NO.2/2024 IN CRL.A NO. 79 OF 2024
SC 645/2017 OF FAST TRACK SPECIAL COURT, ATTINGAL
APPELLANT/APPELLANT:
SHIBUKUMAR @ SHIBU AGED 42 YEARS S/O RAVI, CHIRAYARIKATHU
PUTHENVEEDU, KALPANA, MENAMKULAM VILLAGE, THIRUVANANTHAPURAM
DISTRICT , PIN - 695582
RESPONDENT/RESPONDENT:
STATE OF KERALA REPRESENTED BY THE INSPECTOR OF POLICE, TECHNOPARK,
KAZHAKOOTTOM CIRCLE, IN CRIME NO.163/2017 OF KAZHAKOTTAM POLICE
STATION, THIRUVANANTHAPURAM DISTRICT THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM , PIN - 682031
Application praying that in the circumstances stated there in
the High Court be pleased to suspend the sentence imposed upon the
petitioner as per judgment of conviction and sentence dated 13.10.2022 in
S.C.No.645/2017 on the files of the Hon'ble Fast Track Special Judge,
Attingal and release the apellant/accused on bail, pending consideration
of the Criminal Appeal, in the interest of justice.
This Application coming on for orders upon perusing the application
and t upon hearing the arguments of L.RAJESH NARAYAN, Advocate 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 2024
in
Crl.Appl.No.79 of 2024
...........................................................
Dated this the 20th 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).
2. 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.
3. The learned Public Prosecutor opposes the petition by
contending 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 is aged only 13 years, has been put to
untold miseries. 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.
4. Heard the learned counsel for the petitioner and the
learned Public Prosecutor.
5. The petitioner was convicted and sentenced for the
Crl.M.A.No.2 of 2024 in Crl.A.No.79 of 2024
offences punishable under Sections 354A(2) r/w Section 354A(1)
(iii), 376(1) and 506(i) of the Indian Penal Code, 1860 and under
Sections 4 r/w Section 3(b), 8 r/w Section 7 and Section 12 r/w
Section 11(iii) of the Protection of Children from Sexual Offences
Act (POCSO) Act, 2012. The term of sentence the petitioner has to
undergo as per the impugned judgment is imprisonment for 12
years.
6. The allegations against the petitioner was the victim,
that a 13 year old girl was subjected to penetrative sexual assault
on repeated occasions. It was alleged that the petitioner incited
the victim and subjected to sexual assault on a few occasions and
ultimately on 04.01.2017, he entered the bathroom where PW1
went for taking bath and committed penetrative sexual assault by
fingering. It was further alleged that the petitioner threatened the
victim. The trial court convicted the petitioner believing the
evidence tendered by the victim and also acting upon the
attending circumstances.
7. The offence the petitioner has committed is grave. The
learned counsel would point out a few contradictions in the
evidence of the victim in order to substantiate his contention that
the conviction is not based on reliable and sufficient evidence.
The trial court explained the contradictions and found the victim to
be believable. However, the contentions of the petitioner in
support of his appeal require detailed consideration. The
Crl.M.A.No.2 of 2024 in Crl.A.No.79 of 2024
contention of the learned Public Prosecutor is that the petitioner
has involved in two other cases and also his name was included in
the rowdy list in the local police station. Although, the petitioner,
in the light of the contentions raised by his counsel, is entitled to
get an order to suspend the execution of the sentence, the same
can only be subject to strict conditions owing to his involvement in
other crimes also. I take a view to suspend execution of sentence
also for the reason that the petitioner has been in jail since
13.10.2022 following the conviction.
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) He shall deposit entire fine amount in the trial
court within two months;
(ii) He shall not enter revenue district for
Thiruvananthapuram, 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.2 of 2024 in Crl.A.No.79 of 2024
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. It is also made clear
that having regard to the nature of the petitioner, particularly that
he is involved in more than one cases of sexual offence, the
condition No.(ii) shall be relaxed for any reason during pendency
of this appeal.
Sd/-
P.G. AJITHKUMAR,
JUDGE
Dxy
20-06-2024 /True Copy/ Assistant Registrar
