Kerala High Court
Madhu K G vs State Of Kerala on 21 March, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
Friday, the 21st day of March 2025 / 30th Phalguna, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO. 2020 OF 2024
SC 537/2023 OF FAST TRACK SPECIAL COURT, ALUVA, ERNAKULAM
APPLICANT/APPELLANT:
MADHU K G AGED 49 YEARS S/O GOPINATHAN NAIR, AGED 49 YEARS,
KALAMPLAYIL HOUSE, EDATHALA, ERNAKULAM DIST , PIN - 683561
RESPONDENT/RESPONDENT:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
Application praying that in the circumstances stated therein the
High Court be pleased to suspend the execution of sentence passed against
the petitioner by the judgment in SC No. 537/2023 on the file of Fast
Track Special Court(POCSO),Aluva,Ernakulam district dated 19/10/2024,till
the final disposal of the above Criminal Appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M.J.SANTHOSH, ANTONY PAUL, HASEENA T.,
Advocates for the petitioner and PUBLIC PROSECUTOR for the respondent, the
court passed the following:
C.S.SUDHA, J.
--------------------------------------------------------------
Crl.M.Appl. No.1 of 2024
in
Crl. Appeal No.2020 of 2024
---------------------------------------------------------------
Dated this the 21st day of March 2025
ORDER
This application under Section 430(1) of the Bharatiya
Nagarik Suraksha Sanhita, 2023, has been filed seeking suspension
of sentence of the applicant/accused in S.C.No.537 of 2023 on the
file of the Court of Session, Ernakulam. He has been found guilty of
the offences punishable under Sections 376(2)(j), 354A(1)(i) IPC
and Sections 4,6 8 and 10 of the PoCSO 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.
in
2. It is submitted by the learned counsel for the
appellant/accused that the appellant/accused had a huge financial
liability and therefore his relationship with his wife, who is none
other than the maternal aunt of PW1, the victim was strained.
PW1 was in a relationship with a boy named Adithyan. PW1 in
the box initially denied the relationship. However, when she was
confronted with Ext.D1 letter written by her, she admitted to the
relationship. Therefore, it is pointed out that PW1 is not a credible
witness. It is also pointed out that there was an earlier instance in
which a case under PoCSO Act was registered against the
aforesaid Adithyan on the basis of the complaint by the victim in
this case. It is also pointed out that the victim never disclosed the
name of the accused though she was taken before a psychiatrist
several times. The finding of the trial court that PW1 has given
an explanation for not disclosing the incident is incorrect as no
such explanation was given by PW1 which is evident from her
testimony. It is also pointed out that the prosecution case is
improbable because the incident is alleged to have taken place in
in
a house with just two rooms. At the time of the alleged incident,
there were other people present in the adjacent room which
includes the son of the applicant/accused also. Due to the strained
relation that existed between the appellant/accused and his wife
and also because PW1 did not want to disclose her relationship
with Adithyan, the former has been made a scapegoat and a false
complaint given. Hence, it is submitted that 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 the applicant/accused has criminal
antecedents, and that following are the crimes registered against
him-
"1. Crime no.231/2024 U/s 498A IPC of Edathala Police station
2. Crime no.50/2023 U/s 151 Cr.P.C. of Edathala Police station
3. Crime no.365/2013 U/s 498A & 34 IPC of Aluva Police station
4. Crime no.63/2011 U/s 308 IPC of Thadiyitta Parambu Police
station.
5. Crime no.117/2009 U/s.294(b), 506 IPC of Thadiyitta
Parambu Police station."
My attention was also drawn to the testimony of PW20, the doctor
to show that there is clear medical evidence to prove the offence
of rape. The Prosecutor also draws my attention to paragraph
in
nos.34 and 35 of the impugned judgment in which the trial court
has discussed the arguments presently advanced and rejected the
same for cogent reasons. Hence, she submits that no special
circumstances are made out to suspend the sentence.
4. Heard both sides.
5. Admittedly, the applicant/accused in this case is the
maternal uncle, that is, the husband of the maternal aunt of PW1,
the victim. The prosecution case is that the victim was only 15
years at the time of the incident. On 14/01/2023 at 01:30 PM the
applicant/accused is alleged to have sexually abused PW1 and
also committed digital rape on her. As pointed out by the learned
Public Prosecutor the medical evidence supports the prosecution
case. The argument that PW1 is not a credible witness is seen
answered in paragraph nos.34 and 35 of the impugned
judgment. Prima facie, I do not find any infirmity or illegality in
the said finding.
It is well settled that in considering an application for
suspension of sentence, the appellate court is only to examine if
in
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 for suspension of
sentence 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. Taking
into account the gravity of the offence committed by the
appellant/accused, who is none other than the maternal uncle of
PW1, I am not inclined to suspend the sentence as prayed for.
Hence the application is dismissed.
Post on 25/11/2025.
Sd/-
C.S.SUDHA
JUDGE
ak
21-03-2025 /True Copy/ Assistant Registrar
