Kerala High Court
Xxxxx vs State Of Kerala on 3 March, 2025
Author: V 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 P. V. BALAKRISHNAN
Monday, the 3rd day of March 2025 / 12th Phalguna, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.502 OF 2021
SC 387/2015 OF ADDITIONAL SESSIONS COURT - I, KOTTAYAM
APPLICANT/APPELLANT/ACCUSED:
XXX
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682031.
Application praying that in the circumstances stated therein the
High Court be pleased to issue an interim order suspending the execution
of the sentence passed against the applicant/accused in S.C.No.387 of 2015
by the Court of Additional Sessions Judge - I, Kottayam and directing him
to be released on bail pending disposal of the appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.ABRAHAM THOMAS, THOMAS ABRAHAM
(NILACKAPPILLIL), RESSIL LONAN, Advocates for the petitioner and of the
PUBLIC PROSECUTOR for the respondent,the court passed the following:
P.T.O.
RAJA VIJAYARAGHAVAN V.,
&
P.V.BALAKRISHNAN, JJ.
-------------------------------
Crl.A.No. 502 of 2021
-------------------------------
Dated this the 3rd day of March 2025
ORDER
Raja Vijayaraghavan V., J.
The instant application is filed under Section 389 of the Cr.P.C., seeking
suspension of the sentence and for grant of Bail.
2. The applicant herein is the accused in S.C. No. 387 of 2015 on the
file of the Additional Sessions Judge-I, Kottayam. He was charged with the
commission of offences punishable under Sections 363, 366, 368, 376 (2)(j) and
376(2)(n) of the IPC and Section 6 r/w. Section 5(1) of the Protection of Children
from Sexual Offences Act, 2012 (POCSO Act). By the impugned judgment dated
17.08.2024, the applicant was found guilty and sentenced to undergo:
(i) imprisonment for life and to pay a fine of ₹50,000, with a default clause,
for the offence under Section 6 of the POCSO Act and;
(ii) Rigorous imprisonment for 10 years and to pay a fine of ₹25,000, with a
default clause, for the offence under Section 366 of the IPC.
3. The applicant at the time of occurrence was a 42-year-old man. The
survivor in the instant case is a girl aged 17 years. The prosecution case is that the
applicant herein enticed, threatened, and seduced the survivor, who was a
neighbour, and committed penetrative sexual intercourse with her on multiple
occasions. This was on the assurance given by the applicant that he would marry
her. He is also alleged to have threatened the girl, stating that he would commit
suicide if she did not come forward and marry him.
4. Sri. Ananth Krishna K.S., the learned counsel appearing for the
applicant, contended that the learned Sessions Judge arrived at a finding of guilt
solely based on the uncorroborated testimony of the survivor. According to the
learned counsel, omissions and contradictions were brought out by the defence
while cross-examining the witness made her evidence untrustworthy. He further
submitted that there were significant discrepancies regarding the dates on which
the offences were alleged to have been committed, and these inconsistencies were
ignored by the learned Sessions Judge as trivial. It was also urged that the
prosecution failed to provide any explanation for the inordinate delay in setting the
law in motion, which casts serious doubt on the veracity of the allegations. The
learned counsel highlighted that the testimony of PW1 was inconsistent,
contradictory in material particulars, and completely at variance with her earlier
statements before the police and the statement recorded under Section 164 of the
Cr.P.C. Furthermore, it was pointed out that the learned Sessions Judge failed to
properly appreciate the medical evidence, which did not reveal any injuries on the
body of the child. The learned counsel further submitted that the conviction was
entered on 17.08.2020, and the applicant has already served five years of
imprisonment.
5. The learned Public Prosecutor has vehemently opposed the
submissions. She would refer to the evidence of PW1, who was 21 years old at the
time of tendering the evidence. According to the learned Public Prosecutor, the
accused was her neighbour and a married man with a wife and children. On
multiple occasions, the accused had seduced and enticed the minor to go with
him, and had subjected her to penetrative sexual assault. She would also refer to
the medical evidence and submit that the medical evidence also substantiated her
case that she was subjected to penetrative sexual abuse. It is submitted that the
minor omissions and contradictions which were brought out on defence, were
trivial and were rightly taken note of by the learned Sessions Judge.
6. We have carefully considered the submissions advanced and have
gone through the records.
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 Sessions court have been outlined by the Apex Court in Preetpal Singh v.
State of U.P1. The Apex Court has held that there is a difference between the
grant of bail under Section 439 Cr.P.C in cases of pre-trial arrest and the
suspension of sentence under Section 389 Cr.P.C, along with the grant of bail
post-conviction. In the former, there may be a presumption of innocence, which is
a fundamental postulate of criminal jurisprudence, and courts may be liberal,
depending on the facts and circumstances of the case, based on the principle that
(2020) 8 SCC 645
bail is the rule and jail is the exception, as held by this Court in Dataram Singh
v. State of U.P2. However, in the case of post-conviction bail, there is already a
finding of guilt and the question of presumption of innocence does not arise. Nor
does the principle that bail is the rule and jail the exception apply once a
conviction has been rendered after trial. Rather, the court considering an
application for suspension of sentence and grant of bail must assess the prima
facie merits of the appeal, along with other factors. There should be strong and
compelling reasons for granting bail, notwithstanding an order of conviction,
through the suspension of sentence. It was held that while considering an
application for suspension of sentence, the appellate court must only examine
whether there is such a patent infirmity in the conviction order that renders it
prima facie erroneous. Where the trial court has considered evidence, the court
hearing an application under Section 389 Cr.P.C /430 of BNSS cannot reassess or
reanalyze the same evidence to take a different view and suspend the execution of
the sentence to release the convict on bail.
8. In light of the principles above, we have carefully evaluated the
contentions. We have also gone through the evidence tendered by PW1. It
appears that the incident came to light when PW1 went missing and her father
approached the police and registered the crime under Section 57 of the Cr.P.C.
Later, it was brought out that the child was taken to the house of PWs 9 and 10,
the relatives of the accused. We have carefully gone through the evidence of PW1
[(2018) 3 SCC 22]
and it cannot be said that the appreciation of the evidence is perverse or any
infirmity in the judgment. We also find that the evidence of the mother of the
survivor as well as the wife of the accused corroborates the version of the child.
Having considered the nature of the evidence let in by the prosecution to
bring home the guilt against the applicant, the specific role attributed to the
appellant, the age of the victim, the evidence of the doctor, and the certificate
issued by him after examining the child, the effect of the embellishments,
discrepancies, and inconsistencies projected by the applicant, we are of prima
facie of the considered opinion that the applicant has not made out any strong or
compelling reasons for grant of bail after suspension of the sentence
This application is dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V.
JUDGE
Sd/-
P.V.BALAKRISHNAN
APM JUDGE
03-03-2025 /True Copy/ Assistant Registrar
