Kerala High Court
Chandran@Suni vs State Of Kerala on 13 September, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE G.GIRISH
Friday, the 13th day of September 2024 / 22nd Bhadra, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A.NO.879 OF 2024
SC 465/2021 OF SPECIAL COURT (FAST TRACK SPECIAL COURT), KALPETTA, WAYANAD
PETITIONER/APPELLANT/ACCUSED:
CHANDRAN @ SUNI, AGED 34 YEARS, S/O AYYAPPAN, CHIRATTAMANNIL HOUSE,
PUZHANKUNI, MUTTIL NORTH AMSOM, WAYANAD DISTRICT, PIN - 673122.
RESPONDENT/RESPONDENT/STATE:
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 passed against the
petitioner vide judgment dated 30.06.2023, passed by the Court of Special
Judge (Fast Track Special Court), Kalpetta, Wayanad in S.C.No.465/2021 and
to release the accused on bail, in the interest of justice.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of SHRI S.JUSTUS, Advocates for the
petitioner and of the PUBLIC PROSECUTOR for the respondent, the court
passed the following:
P.T.O.
RAJA VIJAYARAGHAVAN V & G. GIRISH, JJ.
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Crl.A. No.879 of 2024
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Dated this the 13th day of September, 2024
ORDER
Raja Vijayaraghavan, J.
The appellant herein is the accused in S.C.No.465 of 2021 on the file
of the Court of the Special Judge (Fast Track Special Court), Kalpetta,
Wayanad. He was charged for having committed offences punishable under
Sections 376(2)(f), 376(3) of the IPC and Section 3(a) r/w 4(2) and 5(j)(ii)
and 5(n) r/w. 6(1) of the Protection of Children from Sexual Offences Act,
2012 (for brevity 'POCSO Act') and Section 3(1)(w)(i) r/w 3(2)(v) of the
Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Amendment
Act, 2015 (for short 'SC/ST (PoA) Act).
2. By the impugned judgment dated 30.06.2023, the accused
was found guilty for the offence under Section 3(1)(w)(i) r/w 3(2)(v) of
SC/ST (POA) Act and he was sentenced to undergo Rigorous Imprisonment
for life and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous
imprisonment for one year; to undergo Rigorous Imprisonment for life and
to pay a fine of Rs.1,00,000/- and in default to undergo rigorous
imprisonment of one year under Section 5(j)(ii) r/w. Section 6(1) of the
POCSO Act; to undergo Rigorous Imprisonment for life and to pay a fine of
Rs.1,00,000/- and in default to undergo rigorous imprisonment for one year
under Section 5(n) r/w. Section 691) of the POCSO Act; to undergo
Rigorous Imprisonment for 20 years and to pay a fine of Rs.1,00,000/- and
in default to undergo rigorous imprisonment for six months under Section
3(a) r/w. Section 4(2) of the POCSO Act; to undergo Rigorous
Imprisonment for 20 years and to pay a fine of Rs.1,00,000/- and in default
to undergo rigorous imprisonment for six months under Section 376(3) of
the IPC.
3. The survivor is a child aged 14 years and belonging to the
Scheduled Tribe. The wife of the applicant is her relative. In the first week
of March, 2021, the applicant and his wife took her to their residential
home. The spouses consumed toddy and they slept in the same room as
the survivor. The prosecution allegation is that the appellant removed the
clothes of the child and subjected her to penetrative sexual assault. Due to
fear, she did not disclose the incident to her mother. After a few months,
when she felt pain in her abdomen, she was taken to the Vivekananda
Hospital on 01.10.2021 and on examination of the child, it was found that
she was pregnant. The matter was reported to the police from the hospital
and later, the crime was registered based on information furnished by the
survivor.
4. The learned counsel appearing for the appellant submitted
that there has been some delay in setting the law in motion, which would
affect the credibility of the evidence tendered by the survivor. It is further
submitted that a careful evaluation of the evidence tendered by the survivor
would show that there are serious discrepancies with regard to vital facts.
According to the learned counsel, the manner in which the age of the child
was proved, was not in accordance with the law.
5. The learned Public Prosecutor has opposed the submissions.
It is submitted that the evidence tendered by the child was corroborated by
the evidence in the form of the DNA analysis, which established beyond
doubt that the appellant is the biological father of the child born to the
14-year-old survivor.
6. We have carefully considered the submissions advanced and
have gone through the judgment as well as the evidence of material
witnesses and the exhibits, the copies of which were handed over by the
learned counsel.
7. The principles that are to be borne in mind while considering
an application for suspension of sentence after a finding of guilt has been
arrived at by the trial court have been outlined by the Apex Court in Preet
Pal Singh v. State of U.P1, wherein it was held in paragraphs 35 and 38
as under:
35. There is a difference between grant of bail
under Section 439 CrPC in case of pre-trial arrest and
suspension of sentence under Section 389 CrPC and
grant of bail, post conviction. In the earlier case, there
may be presumption of innocence, which is a
fundamental postulate of criminal jurisprudence, and the
courts may be liberal, depending on the facts and
(2020) 8 SCC 645
circumstances of the case, on the principle that bail is
the rule and jail is an exception, as held by this Court in
Dataram Singh v. State of U.P. [Dataram Singh v. State
of U.P., [(2018) 3 SCC 22] However, in case of
post-conviction bail, by suspension of operation of the
sentence, there is a finding of guilt and the question of
presumption of innocence does not arise. Nor is the
principle of bail being the rule and jail an exception
attracted, once there is conviction upon trial. Rather, the
court considering an application for suspension of
sentence and grant of bail, is to consider the prima facie
merits of the appeal, coupled with other factors. There
should be strong compelling reasons for grant of bail,
notwithstanding an order of conviction, by suspension of
sentence, and this strong and compelling reason must
be recorded in the order granting bail, as mandated in
Section 389(1) CrPC.
xxxxxxx xxxxx xxxx
38. 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 application under Section 389 to reassess
and/or re-analyse the same evidence and take a
different view, to suspend the execution of the sentence
and release the convict on bail.
8. Having carefully scrutinized the evidence of the survivor and
the evidence of the witnesses relied on by the learned Sessions Judge to
arrive at the finding of guilt, we are of the view that the contentions
forcefully advanced before us by Sri. S Justus does not merit any
acceptance. We find that the evidence of the survivor child is convincing and
the learned Sessions Judge has appreciated the evidence in a thorough
fashion. Prima facie, for the limited purpose of considering this application,
we hold that there is no patent infirmity in the order of conviction to come
to the conclusion that the order of conviction is prima facie erroneous. As is
settled, while considering the application for suspension of sentence, this
Court will not be justified in re-valuating the evidence threadbare and take a
different view than that has been taken by the learned Sessions Judge. In
that view of the matter, we find no reason to allow this application.
This application is dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
G. GIRISH,
JUDGE
ded
13-09-2024 /True Copy/ Assistant Registrar
