Kerala High Court
Ujayan vs State Of Kerala on 13 September, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Friday, the 13th day of September 2024 / 22nd Bhadra, 1946
CRL.M.APPL.NO.1/2021 IN CRL.A NO.146 OF 2021
SC 579/2017 OF I ADDITIONAL DISTRICT & SESSIONS COURT, KOLLAM
PETITIONER/APPELLANT:
UJAYAN, S/O. UTHAMAN, PARAYIL VEEDU, NEAR MINI STADIUM, POOTHAKULAM
VILLAGE, PARAVOOR, KOLLAM.
RESPONDENTS/RESPONDENTS:
1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682031.
2. CIRCLE INSPECTOR OF POLICE, PARAVOOR POLICE STATION, PARAVOOR,
KOLLAM.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of conviction and sentence
imposed on the petitioner/appellant by Judgment in S.C.No.579/2017 dated
30.10.2020 of the Hon'ble 1st Additional Sessions Court, Kollam, till the
disposal of Criminal Appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/s.Mohan Lal B, M.R. Rajesh, SANDHYA
E.S., Advocates for the applicant and of the PUBLIC PROSECUTOR for the
respondent,the court passed the following:
P.T.O.
C.S.SUDHA, J.
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Crl. Appeal No.146 of 2021
&
Crl.M.Appl. No.1 of 2021
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Dated this the 13th day of September 2024
ORDER
Call for TCR.
Post for final hearing on 16/12/2024.
This is an application filed under Section 389(1) Cr.P.C.
seeking suspension of sentence of the appellant/first accused in S.C.
No.579 of 2017 on the file of the Court of Session, Kollam. The
accused has been found guilty for the offences punishable under
Section 376(f) and (i) IPC and Section 6 of the PoCSO Act. Taking
into account Section 42 of the PoCSO Act, he has been sentenced
only under Section 6 of the PoCSO Act to rigorous imprisonment for
10 years and to a fine of ₹50,000/- and in default of payment of fine
to undergo simple imprisonment for three months.
2. The learned counsel for the applicant/first accused
submitted that there are improbabilities in the prosecution case and
also that there has been misappreciation of the evidence on record.
3. Per contra, it is submitted by the learned Public
Prosecutor that the evidence on record is more than sufficient to
establish the offences alleged against the first accused and that no
exceptional circumstances are there to suspend the sentence.
4. Heard both sides.
5. The prosecution case is that the first accused, who is
the stepfather of PW1, the victim, had raped her on a few
occasions. The trial court on the basis of the testimony of PW1 as
well as the medical evidence on record found the first accused
guilty of the offences alleged against him.
6. 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 execution of the sentence and release the
convict on bail. As held in Preet Pal Singh v. State of Uttar
Pradesh, 2020 KHC 6484, there is a difference between grant of
bail under Section 439 Cr.P.C. in case of pre-trial arrest and
suspension of sentence under Section 389 Cr.P.C. and grant of
bail, post-conviction. In the former 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 circumstances of the case, on the principle that
bail is the rule and jail is an exception. 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. 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 granting 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) Cr.P.C. As the discretion under Section 389(1) is to
be exercised judicially, the appellate court is obliged to consider
whether any cogent ground has been disclosed, giving rise to
substantial doubts about the validity of the conviction. The
arguments advanced by the learned counsel for the applicant/first
accused 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
applicant/first accused, I am not inclined to suspend the sentence
as prayed for.
Hence, the application is dismissed.
Sd/-
C.S.SUDHA
NP
JUDGE
13-09-2024 /True Copy/ Assistant Registrar
