Kerala High Court
Vincent @ Pauly 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.1/2022 IN CRL.A NO. 354 OF 2022
SC 771/2015 OF FAST TRACK SPECIAL COURT , THRISSUR
PETITIONER/APPELLANT:
VINCENT @ PAULY, AGED 46 YEARS, S/O OUSEPH THALIKULAM VEEDU,
PARAPARAMBU DESOM, CHERPU WEST, CHERPU VILLAGE
RESPONDENT/RESPONDENT/STATE:
STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA
ERNAKULAM-682031 (CRIME NO 896/2015 OF CHERPU POLICE STATION,
THRISSUR), PIN - 680561
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, Thrissur in S.C. No.771/2015 till the disposal
of the Criminal Appeal in the interest of justice by allowing this
petition
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/s. S.RAJEEV, V.VINAY, M.S.ANEER,
SARATH K.P., Advocates for the petitioner and of PUBLIC PROSECUTOR for the
respondent, the court passed the following:
P.G. AJITHKUMAR, J.
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Crl.M.A.No.1 of 2022
in
Crl.Appeal No. 354 of 2022
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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 and the consequent
ostracisation, the victim, who was aged only 15 years at the
time of occurrence, 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.
3. Heard the learned counsel for the appellant and the
learned Public Prosecutor.
4. The petitioner was convicted for the offence
punishable under Sections 376(2)(i) and 450 of the Indian
Penal Code, 1860 and under Section 4 r/w 3(a) and 10 r/w
9(l) of the Protection of Children from Sexual Offences Act,
2012. The longest term of sentence the petitioner has to
undergo as per the impugned judgment is imprisonment for
10 years.
5. The charge levelled against the petitioner is as
follows:
The victim and her brother are orphans. PW2 adopted
them. PW2 had a furniture business. The petitioner was an
employee of PW2 for years together. While so, during the
period from December, 2013 till 16.10.2014 the petitioner
subjected the victim to penetrative sexual assault on
multiple occasions, for which he trespassed into the house of
the victim. 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. It is submitted that the petitioner has been in jail
for more than 28 months now and taking that into account,
he is liable to be released by suspending the sentence.
Having gone through the judgment and considered the
submissions made by the learned counsel for the petitioner,
I am unable to agree with the contention that the findings
leading to conviction of the petitioner are wrong, prima
facie.
7. 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.
8. 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.
9. 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.
10. The petitioner was convicted on 28.02.2022. The
petitioner knew that the victim was an orphan. He was
working along with her adoptive parents for about 15 years.
Such a person perpetrated sexual exploitation on the victim
at her tender age. The offence is gruesome. The fact that the
petitioner has been in jail for more than 28 months does not
entitle him to claim suspension of execution of the sentence.
I find no mitigating circumstance in his favour. Viewed the
aforesaid 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
