Kerala High Court
Sanjay vs State Of Kerala on 17 January, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Friday, the 17th day of January 2025 / 27th pousha, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.1368 OF 2024
SC 106/2021 OF FAST TRACK SPECIAL COURT, ALUVA
APPLICANT/APPELLANT:
SANJAY, AGED 23 YEARS, S/O. SAJEEV, NEDIYARA HOUSE, NEAR
MOOPPANTHARA TEMPLE, CHERIYA PALLAMTHURUTH KARA, NORTH PARAVUR
VILLAGE, PIN - 683512.
RESPONDENTS/RESPONDENTS:
1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031.
2. INSPECTOR OF POLICE,VADAKKEKKARA POLICE STATION,PIN - 683516.
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of the sentence passed by
the Honourable Fast Track Special Judge, Aluva vide judgment dated
03.07.2024 in S.C.No.106 of 2021 till the disposal of the appeal and
enlarge the applicant on bail.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.JAISON JOSEPH, M.N.SANJITH, JIMMY
JOSEPH, VEENA VALLIKANTHAN, Advocates for the petitioner 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.M.Appl. No.1 of 2024
in
Crl. Appeal No.1368 of 2024
&
Crl. Appeal No.1368 of 2024
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Dated this the 17th day of January 2025
ORDER
This application under Section 430(1) of the BNSS has been filed
seeking suspension of the sentence of the applicant/accused in
S.C.No.106 of 2021 on the file of the Court of Session, Aluva. The
applicant/accused has been found guilty of the offences punishable under
Sections 376(3) IPC ; Section 4 of the Protection of Children from
Sexual Offences Act, 2012 (the PoCSO Act) and Section 77 of the
Juvenile Justice (Care and Protection of Children) Act, 2015 (the JJ Act).
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 twenty
years.
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2. The learned counsel for the applicant/accused submits that
though the trial court found the accused not guilty for the offence
punishable under Section 77 of the JJ Act, he has been convicted for
the said offence also. In addition to the said defect it is also pointed
out that the case of the prosecution is highly unbelievable/improbable
and in support of the said arguments reference is made to the defence
evidence especially to the testimony of DW1 who deposed that the
call details of the mobile phone of the applicant/accused were made
available to the investigating officer. It was pointed out that had this
material piece of evidence been produced before the Court, it would
have proved the prosecution case wrong as it would have established
his defence that he was not at the location where the incident of abuse
is alleged to have happened. It is also pointed that there was delay of
about six months in reporting the matter to the police. After the
alleged incident, the victim girl had attended school and it was after a
considerable long period of time the crime was registered. The
complaint was given only because the applicant/accused and the
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victim girl who were in a relationship broke up. Later when the
applicant/accused introduced his fiancee to the victim in this case, she
threatened that she would teach him a lesson. This prompted her to
give a false complaint to the police. In addition, certain
inconsistencies in the testimonies were referred to substantiate that the
incident is improbable and unlikely.
3. The application is opposed by the learned Public
Prosecutor who submits that the testimony of PW2 the father of the
victim may also be considered and the background in which the
offence was committed. The evidence on record is more than
sufficient to establish the case and that no special circumstances are
made out to suspend the sentence.
4. Heard both sides.
5. The prosecution case is that the accused with the intention
of committing rape on PW1, the victim girl aged 15 years, took her to
the house of another boy, where after forcibly administering liquor
and ganja and while she was not in her proper senses, committed rape.
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Hence, the accused as per the final report was alleged to have
committed the offences punishable under Sections 370(4), 366, 376(3)
IPC, Section 4 of the PoCSO Act as well as Section 77 of the JJ Act.
The learned counsel for the applicant/accused is right in pointing out
that the trial Court committed a mistake by sentencing him for offence
under Section 77 JJ Act though he was found not guilty for the same.
The applicant/accused has also been found guilty of the offence
punishable under Section 4 of the PoCSO Act and has been sentenced
to rigorous imprisonment for a period of 20 years. On going through
the impugned judgment, prima facie I do not find any gross infirmity
in or illegality in the finding regarding the offence under Section 3 of
the PoCSO Act.
6. Further, 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
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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. 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.
Post for hearing to 16/10/2025.
Sd/-
C.S.SUDHA
JUDGE
ak
17-01-2025 /True Copy/ Assistant Registrar
