Kerala High Court
Scaria Mathew @ Appachan 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.3/2024 IN CRL.A NO. 416 OF 2024
SC 26/2023 OF FAST TRACK SPECIAL COURT, IDUKKI,PAINAVU
APPLICANT/APPELLANT:
SCARIA MATHEW @ APPACHAN, AGED 81 YEARS, S/O.MATHEW, KOOTTAKALLIL
HOUSE, ELAMDESOM KARA, ELAMDESOM BHAGOM, VELLIYAMATTOM VILLAGE,
IDUKKL DISTRICT
RESPONDENT/RESPONDENT:
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 sentence passed against the
petitioner in S.C.No.26/2023 of the Fast Track Special Court ,
Idukki,Painavu dated 21.02.2024 , pending disposal of the above Criminal
Appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.M.RAMESH CHANDER (SR.),SIJI ANTONY,
P.M.JOSEPH, P.S.SAJEEV (CHIRAYIL), MANOJ GEORGE, BALU TOM, 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.3 of 2024
in
Crl.Appeal No. 416 of 2024
-----------------------------------------------------------
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 girl, 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 Senior Counsel for the appellant
and the learned Public Prosecutor.
4. The petitioner was convicted for the offence
punishable under Sections 376(2)(n), 376(3) and 450 of the
Indian Penal Code, 1860 and under Section 3(a) r/w 4(2),
3(b) r/w 4(2) and 5(l) r/w 6 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 20 years.
5. The charge levelled against the petitioner was as
follows:
The father of the victim expired a few years ago. Her
mother left the victim and eloped with another person
abandoning the petitioner and her sibling. She was residing
along with her relatives at their house. The petitioner was
aged 80 years. He was running a shop nearby. At about 6.30
a.m. on a day in June, 2021 the petitioner trespassed into
the said house and subjected the victim to penetrative
sexual assault. On a few occasions subsequently also the
petitioner did similar sexual acts on 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 and there is delay in launching the prosecution. It
is pointed out that the victim was lodged in a rescue home
from December, 2021 onwards, but her version in court was
that she was subjected to sexual assault by the petitioner in
June, 2022, which itself is enough to reject the case of the
prosecution. Another case of similar nature was initiated
against another person and even while the victim gave
statement under Section 164 of the Code in that case, she
did not mention about this incident. That again is a reason to
discard the case of the prosecution. The delay of more than
an year is not properly explained. When there is absolutely
no evidence than the totally inconsistent version of the
victim, the conviction can no way be sustained. Therefore,
the conviction is based on unreliable evidence, and the
petitioner is entitled to get the sentence suspended.
7. The trial court considered the contentions of the
petitioner concerning the delay and discrepancies in the
evidence of the victim. Irrefutably, an orphan girl, the victim
while residing along with her relatives, had to suffer such
unbearable tormentation. From the version of the victim, it
is seen that the petitioner was a person in whom she had
faith and confidence. On account of the sexual exploitation,
the victim had to be lodged in a Children's Home. The delay
and discrepancies in her evidence are to be appreciated in
the above background. The findings of the trial court in
favour of the prosecution in the above regard cannot be said
to be totally incorrect. It is also seen that the victim had put
to much psychological setbacks and she was constrained for
an attempt to commit suicide. Taking all those aspects into
account, I am unable to agree with the contention of the
learned Senior Counsel for the petitioner. Having gone
through the judgment, I am of the view that the findings of
the trial court leading to the conviction of the petitioner are
prima facie correct.
8. 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.
9. 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.
10. 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.
11. The petitioner was convicted on 21.02.2024.
Considering the circumstances in which the offence was
committed and the aspects pointed out above, I am of the
view that the petitioner does not deserve any leniency. The
age of the petitioner or that he suffers from health issues
are not sufficient to suspend execution of the sentence at
this stage. 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
