Kerala High Court
Xxx vs State Of Kerala on 31 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Friday, the 31st day of May 2024 / 10th Jyaishta, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.724 OF 2024
SC 313/2023 OF FAST TRACK SPECIAL COURT(POCSO ACT), IDUKKI, PAINAVU
APPLICANT/APPELLANT/ACCUSED:
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 against the
Appellant/Accused by judgment dated 22.03.2024 in S.C.No.313/2023 of the
Fast Track Special Court at Idukki, Painavu.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of SHRI P.A.MUJEEB, Advocate 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.Appeal No.724 of 2024
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Dated this the 31st day of May, 2024
ORDER
Admit.
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. In such
circumstances, he claims that he is entitled to get execution
of his sentence suspended.
2. The learned Public Prosecutor opposes the petition
by contending 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 12 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 Section 9(n) r/w 10 and Section 7 read with
8 of the Protection of Children from Sexual Offences Act,
2012. The term of sentence the petitioner has to undergo is
imprisonment for five years.
5. The case of the prosecution was as follows:
The victim along with her family was residing in a
portion of a building and in another portion of the same
building, the petitioner along with his family has been
residing. At about 3.00 p.m on 12.11.2022, while the victim
was sitting in her house watching T.V, the petitioner entered
that room and sexually assaulted her by pressing at and
caressing her breast after making her to lay on a cot. The trial
court believing the evidence tendered by the prosecution
found the petitioner guilty as mentioned above.
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
and insufficient evidence, and the appeal will be allowed.
Having gone through the judgment and considered the
available materials, prima facie, I am unable to agree with the
contention that the findings leading to conviction of the
petitioner is wrong.
7. The learned Public Prosecutor would point out that
the petitioner was the accused in another case involving
similar offence. It is seen that the petitioner was acquitted in
the said case which was tried as Sessions Case No.204 of
2023. Of course, the offence is serious in nature, but when
the petitioner has a serious contention that this case as well
as the other case in which he was already acquitted were
initiated by siblings in order to wreck vengeance on account
of civil disputes exist between the two families, the contention
in the appeal requires serious consideration. Therefore, it is
apposite to allow this petition and release the petitioner on
bail on imposing strict conditions:
Accordingly, this petition is allowed and the petitioner is
granted bail on his executing a bond for Rs.50,000/- (Rupees
Fifty thousand 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 entire fine amount in the trial court
within one month;
ii) He shall not enter the local limits of Kanjar 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
PV
31-05-2024 /True Copy/ Assistant Registrar
