Kerala High Court
Xxxx 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.501 OF 2022
SC 454/2017 OF ADDL.SESSIONS COURT-I, PALAKKAD
PETITIONER/APPELLANT/ACCUSED:
XXXX
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI, PIN - 682031.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of the sentence against the
appellant herein in S.C.No.454 of 2017 of the Court of Sessions, Palakkad
Division dated 17.02.2022 until the disposal of this appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.NAVJYOTH S., MANAS P HAMEED, HARITHA
HARIDAS, AJAY JISHNU S., Advocates for the petitioner and of the PUBLIC
PROSECUTOR the respondent,the court passed the following:
P.T.O.
P.G. AJITHKUMAR, J.
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Crl.M.A.No.1 of 2024
in
Crl.A. No.501 of 2022
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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 who is the sole accused would
contend that he is innocent and there is every chance for
allowing the appeal and acquitting him. In such
circumstances, he claims that he is entitled to get execution
of his sentence suspended.
2. The learned Public Prosecutor filed an objection on
behalf of the respondent. The offence proved against the
petitioner is grievous. Considering the gravity and nature of
the offence 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 Section 376(2)(i) and (n) of IPC and Section
5(l) r/w Section 6 of the POCSO Act, 2012. The term of
sentence the petitioner has to undergo in terms of the
impugned judgment is imprisonment for 10 years and to pay
fine of Rs.25,000/- .
5. The allegations levied against the petitioner based
on which he was tried is as follows:
The victim and the petitioner were neighbours. They were in
love. The petitioner, on giving assurance that he will marry,
took the victim to the bank of Kunthipuzha on 22.06.2014 and
committed penetrative sexual assault on her at about 1.30
p.m. After 2 weeks also, he committed similar act and thus
committed the offences alleged.
6. Learned counsel for the petitioner would submit
that only evidence relied on by the prosecution to prove the
charge against the petitioner is oral testimony of the victim.
The medical evidence does not support her oral testimony. It
is further contended that the age of the victim has not been
duly proved, and that owing to the petitioner's refusal to
marry the victim despite her insistence, this case was foisted.
7. Learned Public Prosecutor would submit that a case
was happened to be initiated against the brother of the victim
on the instigation of the petitioner and that resulted in
acquittal. Initiation of that case is not a reason to disbelieve
the victim. Exhibit P3 is the birth certificate of the victim
issued by the Registrar of Births, and the same is enough to
prove the age. Medical examination was after 2 months of
the incident and therefore the observations of the Doctor
definitely tallies the oral testimony of the victim in court. In
the absence of any reason to disbelieve the evidence of PW1,
that along with the attending circumstances is enough to
enter conviction upon the petitioner.
8. Having gone through the judgment and considered
the submissions made by either side, I do not find sufficient
reason to hold that the conclusions arrived at by the trial
court based on which the petitioner was convicted are
prima facie wrong. The petitioner was convicted on
17.02.2022. He has been in jail since then. The victim was
married to another person and she is living in her matrimonial
home with him. The delay of 5 months has been explained by
the prosecution and that explanation was accepted by the trial
court. However, the contentions relating to delay and other
grounds urged by the petitioner to assail the impugned
judgment require serious consideration. Along with that the
period for which the petitioner has been in jail in connection
with this case, entitle the petitioner to get execution of
sentence suspended. I take such a view also for the reason
that the petitioner suffers from diabetes, and in consideration
of which he was granted interim bail for a period of 2 months.
9. 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 the entire fine amount in the trial
court within one month;
ii) He shall not enter the local limits of Mannarkkad
Police Station 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.
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.
Sd/-
P.G. AJITHKUMAR, JUDGE
SSK/28/05
28-05-2024 /True Copy/ Assistant Registrar
