Kerala High Court

Xxx vs State Of Kerala on 28 May, 2024

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
           Tuesday, the 28th day of May 2024 / 7th Jyaishta, 1946
                CRL.M.APPL.NO.1/2024 IN CRL.A NO.224 OF 2024
             SC 424/2022 OF FAST TRACK SPECIAL COURT, PALAKKAD
APPLICANT/APPELLANT:

     XXX

RESPONDENT/RESPONDENT:

     STATE OF KERALA
     REPRESENTED BY 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 sentence imposed on the applicant by
the judgment, conviction and sentence in S.C.No.424/2022 of the court of
Fast Track Special Court, Palakkad dated 09.01.2024 and release the
applicant on bail pending disposal of the above criminal appeal.


     This Application coming on for orders upon perusing the application
and upon hearing the arguments of SHRI V.A.JOHNSON (VARIKKAPPALLIL),
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 2024
                                in
                 Crl.Appeal No.224 of 2024
   -----------------------------------------------------------
            Dated this the 28th day of May, 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. He accordingly 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 16 years at the

time of occurrence, has been put to untold miseries.

Considering the gravity and nature of the offence and the

relationship between the parties, the petitioner is not entitled

Crl.M.A.No.1 of 2024 in

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 offences

punishable under Sections 376(3) and 354B of the Indian

Penal Code, 1860 and under Sections 5(n) read with Section

6(1) 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 is as

follows:

The petitioner is a cousin of the victim. On 10.04.2021 at

about 12.00 noon the petitioner took the victim from her

school to a lodge at Olavakkode. In a room in that lodge, the

petitioner sexually assaulted her. On 22.08.2021, the victim

went to the house of her grandmother. The petitioner took her

along with her another cousin in the petitioner's car to his

house. They together had beer and while the victim was

Crl.M.A.No.1 of 2024 in

taking rest in a room in that house, the petitioner subjected

her to penetrative sexual assault. 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.

Therefore, the conviction is based on unreliable evidence, and

the petitioner is entitled to get the sentence suspended. It is

submitted that the first incident was not mentioned in the

F.I.statement, Ext.P1. That by itself shows the falsity of the

allegations. It is pointed out that the medical evidence does

not tally with the allegations inasmuch as the Doctor noted

only an old tear at her vaginal part. The petitioner is aged

only 26 years now and in taking into account the

aforementioned infirmities in the evidence, this petition is

liable to be allowed, the learned counsel submits.

7. The learned Public Prosecutor would submit that

from the turn of events disclosed from the evidence on

Crl.M.A.No.1 of 2024 in

record, it cannot be said that the delay is not unexplained.

The victim was put to much disgust and dejection. She was

otherwise very active. Noticing the change, PW3, the

Counsellor in the school, talked to the victim, following which

only the victim disclosed the sexual assault. It was thereafter

the prosecution was launched and the victim was got

medically examined. In the said circumstances, the delay in

lodging the complaint as well as the improbability pointed in

the medical evidence stand explained. The learned Public

Prosecutor also would submit that the evidence tendered by

the victim is creditworthy and on material particulars her

evidence gets corroboration from the other evidence.

8. As rightly pointed out by the learned Public

Prosecutor, the delay is properly explained. The petitioner is

none other the cousin of the victim. The reluctance of the

victim to come out with the allegation against her cousin is

quite obvious. But it started haunting her, and she disclosed it

to PW3 which resulted in initiation of the prosecution. It was

only thereafter she was medically examined. On a detailed

Crl.M.A.No.1 of 2024 in

consideration of the materials on record, I am not able to say

at this stage that findings leading to the conviction of the

petitioner are incorrect.

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 Uttarpradesh

[(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;

Crl.M.A.No.1 of 2024 in

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. Considering the circumstances in which the offence

was committed, 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.