Kerala High Court
Xxxxxx vs State Of Kerala on 10 January, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Friday, the 10th day of January 2025 / 20th pousha, 1946
CRL.M.APPL.NO.1/2023 IN CRL.A NO. 644 OF 2023
SC 867/2014 OF FAST TRACK SPECIAL COURT, CHALAKUDY
APPLICANT/APPELLANT:
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 on the
applicant/appellant by the judgment of guilty of conviction and sentence
S.C.No.867/2014 on the file of the Fast Track Special Court, Chalakkudy,
dated 25.03.2023, and release the applicant/appellant on bail, pending
disposal of the above criminal appeal in the interests of justice.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.P.VIJAYA BHANU (SR.),SRUTHY N. BHAT,
P.M.RAFIQ, M.REVIKRISHNAN, AJEESH K.SASI, RAHUL SUNIL, SRUTHY K.K, NIKITA
J. MENDEZ, 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.Appl. No.1 of 2023
in
Crl. Appeal No.644 of 2023
&
Crl. Appeal No.644 of 2023
---------------------------------------------------------------
Dated this the 10th day of January 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.867 of 2014 on the file of the Court of Session, Thrissur. He
has been found guilty of the offences punishable under Section 3(a)
read with Section 4 and Section 7 read with Section 8 of the
Protection of Children from Sexual Offences Act, 2012 (the PoCSO
Act). The applicant/accused has been sentenced to varying terms of
imprisonment for the aforesaid offences. The sentences have been
directed to run concurrently. Therefore, the maximum period of
imprisonment he will have to undergo is for a period of twenty
years.
2. The learned counsel for the applicant/accused points out
in
&
that from the allegations it can be seen that the offence under Section
3 of the PoCSO Act will not be made out. At best the offence that
would attracted is only under Section 7 of the PoCSO Act and 511 of
376 IPC. The applicant/accused has already undergone
imprisonment for a period of two years and hence a lenient view
may be taken and the sentence may be suspended.
3. The application is opposed by the learned Public
Prosecutor who submits that these are matters that will have to be
considered and decided at the time of the final hearing.
4. Heard both sides.
5. The prosecution case is that on 14/03/2013 between
11:45 a.m. and 12:30 p.m. the applicant/accused enticed PW1, the
victim, a minor girl aged 6 years, promising to give her guava and
took her to the bathroom situated near her house, undressed her and
rubbed his penis on her breasts and vagina. As per the final report
the applicant/accused is alleged to have committed the offences
punishable under Section 7 read with Section 8 and Section 9(m)
in
&
read with Section 10 of the PoCSO Act and Section 511 of 376 IPC.
6. The trial court by the impugned judgment found no
evidence of penetrative sexual assault or attempt to commit rape.
Hence acquitted him for the offence under Section 511 of 376, but
then proceeded to convict him for the offence punishable under
Section 3(a) read with Section 4(2) and also for the offence
punishable under Section 7 read with Section 8 of the PoCSO Act.
Going by the testimony of PW1 the victim and PW2 her mother,
though prima facie an offence under Section 3 may not be made out,
the offence under Section 7 of PoCSO punishable under Section 8
and attempt to commit rape, that is, 511 of 376 IPC are clearly made
out. The offence under Section 7 PoCSO Act is punishable with
imprisonment for a term which shall not be less than three years and
which may extend to five years. Attempt to commit rape is
punishable with a minimum sentence for seven years which may
extend to life. The applicant/accused has inter alia been sentenced to
rigorous imprisonment for a period of twenty years and to a fine of
in
&
₹2,00,000/- and in default to undergo rigorous imprisonment for six
months for the offence punishable under Section 3(a) read with
Section 4(2) of the PoCSO Act. The applicant/accused has
undergone imprisonment for a period of two years. Hence, in these
circumstances the substantive sentence of imprisonment is
suspended till the disposal of the appeal subject to the following
conditions:-
i) The applicant/accused shall be released on bail on
executing a bond for ₹50,000/- (Rupees fifty
thousand only) with two solvent sureties each for the
like sum to the satisfaction of the trial court;
ii) He shall deposit ₹1,00,000/- out of the entire fine
amount within a period of two months from the date
of receipt of a copy of this order;
iii) The applicant/accused shall not in any way
contact or intimidate the witnesses in any manner;
iv) He shall not commit any offence(s) while on bail;
in
&
v) He shall not enter the police station limits of
Vellikulangara police station until further orders.
vi) If the conviction and sentence of the applicant is
upheld or even modified, the time during which he
is so released shall be excluded in computing the
term of his sentence as provided in Section 389(4)
Cr.P.C;
vii) It is also made clear that if any of the
conditions are violated, the bail shall stand
cancelled.
Post on 03/04/2025.
Sd/-
C.S.SUDHA
JUDGE
ak
10-01-2025 /True Copy/ Assistant Registrar
