Kerala High Court
Martin vs State Of Kerala on 13 February, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Thursday, the 13th day of February 2025 / 24th Magha, 1946
CRL.M.APPL.NO.5/2024 IN CRL.A NO.1691 OF 2023
SC 346/2017 OF THE ADDITIONAL SESSIONS COURT - II, NORTH PARAVUR
APPLICANT/APPELLANT/ACCUSED:
MARTIN, AGED 53 YEARS,
S/O.THOMAS,ACHANDY HOUSE, NEAR PUTHIYAKARA HOUSE,MATTOOR,KALADY,
ERNAKULAM, PIN - 683574.
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
Application praying that in the circumstances stated therein the
High Court be pleased to reconsider the petition seeking to suspend the
execution of sentence against the appellant and suspend the execution of
sentence against the appellant in S.C.No.346/2017 of the Additional
Sessions Judge - II, North Paravoor, until the disposal of this appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.K.R.VINOD, M.S.LETHA, NABIL KHADER,
KARTHIKA SAROJ, Advocates for the applicant and of the PUBLIC PROSECUTOR
for the respondent, the court passed the following:
P.T.O.
C.S.SUDHA, J.
--------------------------------------------------------------
Crl.M.A.No.5 of 2024
in
Crl.Appeal No.1691 of 2023
---------------------------------------------------------------
Dated this the 13th day of February 2025
ORDER
This application under Section 389(1) Cr.P.C. has been filed
seeking suspension of sentence of the applicant/accused in
S.C.No.346/2017 on the file of the Court of Session, Ernakulam. He
has been found guilty of the offences punishable under Section
376(1), 376(2) (n), 354 A(iv), 506(i) and 511 read with Section 376
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.
2. It is submitted by the learned counsel for the
appellant/accused that there are several inconsistencies and
improbabilities in the prosecution case. The incidents of sexual
abuse are alleged to have taken place on 15/04/2016 at around 09:45
in
a.m.; 26/04/2016 at around 10:00 a.m. and 24/05/2016 at 10:00 a.m.
The scene of occurrence is stated to be the court hall of JFCM-I,
Aluva as well as in the staff bathroom attached to the said court. It
is pointed out that it is improbable for such incidents to happen in
the court hall because the other court staff would also have come and
would be in the adjacent rooms. Moreover, it is impossible to rape
an adult lady in a court hall with several persons in close proximity.
It is also submitted that the applicant/accused is in jail from the date
of the impugned judgment, that is, from 18/10/2023 onwards. He
has completed nearly two years in jail. It is further submitted that if
at all there was any sexual intercourse between the parties, the same
was consensual.
3. The application is stoutly opposed by the learned public
prosecutor, who pointed out that the evidence on record clearly
proves that the offence of rape had been committed by the
applicant/accused. It is also pointed out that there is nothing
improbable in the prosecution case. At the time of the incident the
applicant/accused was a court staff, that is, Bench Clerk, Court of
in
Judicial First Class Magistrate-I, Aluva. Such behaviour/conduct is
least expected from a court staff. Therefore, no leniency is called
for. No special circumstance(s) are made out to suspend the
sentence, goes the argument.
3.1. The application is also opposed by the learned counsel
appearing for the additional second respondent/PW1, the victim in
this case. It is pointed out that the evidence on record clearly proves
the offence of rape. The victim was only an Office Assistant
engaged on daily wage basis and hence she was intimidated and
raped by the applicant/accused. She was unable to disclose the
incident immediately after the incident as the applicant/accused was
a senior officer and so she feared that she would lose her job, the
first employment that she had obtained.
4. Heard both sides.
5. I was taken through Ext.P1 FIS, the testimony of PW1,
the victim as well as the other material witnesses in this case. I went
through the impugned judgment also. There is a detailed discussion
by the trial court regarding the defence argument that the alleged
in
scene of occurrence is visible to one and all and therefore it was
highly improbable for the applicant/accused to have raped the victim
inside the court hall. The prosecution has also brought in materials
to show that PW1, the victim had undergone psychiatric treatment
after the incident, due to the trauma caused as a result of the same. I
was taken through the testimony of the said witnesses also. The trial
court has appreciated all the materials on record and found that there
was nothing improbable or impossible in the prosecution case.
Before the trial court, the applicant/accused never had a case that the
relationship was consensual. On the other hand, he seems to have
stoutly contested the prosecution case of rape, sodomy and sexual
abuse and took up a case of complete denial. 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 Cr.P.C. to reassess and / reanalyze the same
in
evidence and take a different view, to suspend the execution of the
sentence and release the convict on bail. On going through the
impugned judgment I do not prima facie find any infirmity. 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 the
facts and circumstances of case and the gravity of the offences
committed by the accused, I am not inclined to suspend the sentence
as prayed for.
Hence, the application is dismissed.
Sd/-
C.S.SUDHA
JUDGE
Jms
13-02-2025 /True Copy/ Assistant Registrar
