Kerala High Court
Sudheesh vs State Of Kerala on 3 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Friday, the 3rd day of May 2024 / 13th Vaisakha, 1946
CRL.M.APPL.NO.1/2023 IN CRL.A NO. 1992 OF 2023
SC 795/2022 OF FAST TRACK SPECIAL COURT, CHERTHALA
APPLICANT/APPELLANT/ACCUSED:
SUDHEESH, AGED 27 YEARS ,S/O DILEEP, KARUKAYIL HOUSE, EZHUPUNNA P.O,
EZHUPUNNA PANCHAYATH WARD 13, CHERTHALA. ALAPPUZHA, PIN - 688537
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY THE 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 execution of the sentence passed in
S.C.No.795/2022 in the Court of the Fast Track Special Judge , Cherthala
pending disposal of this Criminal 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 HARSHAKUMAR, ADARSH S., GOVIND
CHANDRABHANU, ANJALI NAIR, MARY ANN SAJI, SAMEER.P.A, SREEJESH B PANICKER,
Advocates 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 2023
in
Crl.Appeal No. 1992 of 2023
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Dated this the 3rd day of May, 2024
ORDER
The appellant filed this petition 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 had to undergo
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 suspending 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 Sections 450, 323, 376 and 506, Part II of
the Indian Penal Code, 1860. The longest term of sentence
the petitioner has to undergo as per the impugned judgment
is imprisonment for ten years.
5. The charge levelled against the petitioner is as
follows:
The victim, who was aged 73 years, was residing alone
at her house. Her husband expired and her daughters were
in their matrimonial homes. At about 8.00 p.m. on
14.05.2021 she came to the sit out of her house to switch
off lights. The petitioner came jumbing the locked gate. He
dragged her to the hall of that house. She was forcibly laid
down on a cot and subjected to rape. In his attempt to silent
her, he inserted fingers to her mouth causing serious
injuries. Blood oozed out from the mouth and she became
unable to speak out properly. 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. Therefore, the conviction is based on unreliable
evidence, and the petitioner is entitled to get the sentence
suspended. It is further submitted that while taken to the
Doctor, PW6, the victim did not allege any sexual assault.
She had only other injuries essentially at mouth, nose and
neck. It is also submitted that the medical evidence brought
in through PW16 is fabricated with a view to falsely implicate
the petitioner in a sexual offence.
7. The learned Public Prosecutor pointed out the
extensive injuries sustained by the victim at her mouth and
temporary loss of speech as the reasons for the non-
disclosure of the sexual assault to PW6. The victim was able
to convey only through gestures at that time. The learned
Public Prosecutor has taken me through the findings in the
trial court judgment and submitted that the same do not
suffer from any infirmity.
8. The victim was aged 73 years at the time of
occurrence. The petitioner is a neighbour. There is nothing
on record to show that the victim had any reason to foist a
case against the petitioner. The medical evidence would
show that the victim was not able to convey properly while
she was taken to PW6, the Doctor. Considering the
submissions on either side, I am unable to hold at this stage
that the findings leading to conviction of the petitioner are
wrong, prima facie.
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.
10. In Preet Pal Singh v. State of Uttar Pradesh
[(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. The petitioner was convicted on 04.12.2023.
Considering the circumstances in which the offence was
committed, and the age of the victim, I am of the view that
the 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 of the law laid down in the decisions
mentioned above, I am of the view that the petition is liable
to be dismissed.
Hence, the petition is dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
03-05-2024 /True Copy/ Assistant Registrar
