Kerala High Court
Mini vs State Of Kerala on 25 October, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Friday, the 25th day of October 2024 / 3rd Karthika, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO. 1972 OF 2024
SC 402/2021 OF FAST TRACK SPECIAL COURT (POCSO ACT), PAINAVU
APPLICANT/APPELLANT:
MINI, AGED 43 YEARS,
IRUNDATHOOKKIL HOUSE,
KANNADI PARA BHAGAM,
PARATHODE KARA,
KONNATHADY VILLAGE, PIN - 685563.
RESPONDENT/RESPONDENT:
1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM,PIN - 682031.
2. STATION HOUSE OFFICER, KULAMAVU POLICE STATION, IDUKKI DISTRICT, PIN
- 685061.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the sentence passed against the Appellant
and release her on bail pending disposal of the Crminal Appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of SHRI NIMAL JOSEPH, Advocate for the
petitioner and of the PUBLIC PROSECUTOR for the respondents, the court
passed the following:
P.T.O.
C.S.SUDHA, J.
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Crl.M.Appl. No.1 of 2024
in
Crl. Appeal No.1972 of 2024
&
Crl. Appeal No.1972 of 2024
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Dated this the 25th day of October 2024
ORDER
The appeal is admitted.
This application under Section 430(1) of the Bharatiya Nagarik
Suraksha Sanhita, 2023, has been filed seeking suspension of sentence of
the applicant/1st accused in S.C.No.402 of 2021 on the file of the Court
of Session, Thodupuzha. The applicant/1st accused has been found guilty
for the offences punishable under Section 376(2) (f), 376(2)(i) and
Section 354 read with Section 34 IPC. He has been sentenced to varying
terms of imprisonment for the aforesaid offences. The sentences have
been directed to run concurrently. The maximum period of imprisonment
he will have to undergo is ten years.
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2. The learned counsel for the applicant/1st accused quite
persuasively and vehemently argues for a suspension of sentence on
the ground that there are several inconsistencies and material
contradictions in the testimony of the prosecution witnesses entitling
the accused to an acquittal and that the trial court has grossly erred in
convicting the accused. The attempt of the learned counsel is to take
me through the details of the appreciation of evidence that has been
done by the trial court.
3. The application is opposed by the learned Public
Prosecutor on the ground that the allegations against the applicant/1 st
accused are quite serious and that no leniency can be granted in the
light of the serious allegations and that no special circumstances have
been made out to suspend the sentence.
4. On going through the impugned judgment, I find that the
allegation against the 1st accused is quite serious. In paragraph no. 21
of the judgment the testimony of PW1 the victim who was aged 13
years is vividly referred to. It is stated that PW1 was in the habit of
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going to the house of the 1st accused who is the stepmother and
spending her night there. On a day when she went to the house of the
1st accused she was woken up by the 1 st accused from her sleep and
made to lie near the 2nd accused. The 2nd accused started kissing her all
over after disrobing her. When PW1 resisted, the 1 st accused tied her
legs and arms with bamboo poles. The 2 nd accused is thereafter stated
to have penetrated her while the 1st accused actively participated by
keeping PW1 immobilized at the place. The allegation is also that
PW1 was abused by several others also at the instance of the 1 st
accused.
It is well settled that in considering an application for
suspension of sentence, the appellate court is only to examine if there
is such patent infirmity in the order of conviction that renders the
order of conviction prima facie erroneous. Where there is evidence
that has been considered by the trial court, it is not open to a court
considering an application under Section 389 to reassess and /
reanalyze the same evidence and take a different view, to suspend the
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execution of the sentence and release the convict on bail. The
arguments advanced by the learned counsel for the applicant/appellant
can be considered while the appeal is heard on merits. This is not a
case in which the discretion under Section 389(1) is required to be
invoked. Therefore, taking into account all these factors, and the
gravity of the offence committed by the accused, I am not inclined to
suspend the sentence as prayed for.
Hence the application is dismissed.
Call for TCR and for hearing to 19/08/2025.
Sd/-
C.S.SUDHA
JUDGE
ak
25-10-2024 /True Copy/ Assistant Registrar
