Kerala High Court
Shaji K @ Binu vs State Of Kerala on 7 March, 2025
Author: 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 VIJU ABRAHAM
Friday, the 7th day of March 2025 / 16th Phalguna, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.1812 OF 2024
SC 745/2018 OF FAST TRACK SPECIAL COURT, PATHANAMTHITTA
APPLICANT/APPELLANT:
SHAJI K @ BINU, AGED 48 YEARS,
S/O. THANKAPPAN, KOCHEETHRAYIL VEEDU, KARUVALLIPPARA, NEAR
MANACKACHIRA, JAGADAMBIKA TEMPLE, VALLAMKULAM WEST MURI, ERVAIPEROOR
VILLAGE, PATHANAMTHITTA DISTRICT.
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 pass an order, suspending the execution of the
sentence imposed on the petitioner by the Fast Track Special Court,
Pathanamthitta as per judgment dated 23.08.2024 in S.C.No.745/2018 and
release the petitioner on bail, pending final disposal of the above
Criminal Appeal.
This Application coming on for orders upon perusing the application
and upon hearing the arguments of M/S.P.T.SHEEJISH, A.ABDUL RAHMAN
(A-1917), Advocates for the petitioner and of the PUBLIC PROSECUTOR for
the respondent, the court passed the following:
P.T.O.
RAJA VIJAYARAGHAVAN V & VIJU ABRAHAM, JJ.
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Crl. A No. 1812 of 2024
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Dated this the 7th day of March 2025
ORDER
Raja Vijayaraghavan, J.
Crl. M.A. No. 1 of 2024
The applicant herein is the accused in S.C. No. 745 of 2018 on the file of
the Fast Track Special Judge, Pathanamthitta. In the said case, he was charged
for having committed offences punishable under Sections 366, 376(2)(f) and (n)
of the Indian Penal Code (IPC), and Section 6 r/w. 5(l),(m) and (p) of the
Protection of Children from Sexual Offences Act, 2012 (POCSO Act). By the
impugned judgment dated 23.08.2024, the applicant was found guilty and
sentenced to undergo:
(i) rigorous imprisonment for a period of 10 years and to pay a fine of
₹50,000/-, with a default clause, for the offence under Section 366 of
the IPC and;
(ii) imprisonment for life which shall mean imprisonment for the remainder
of this natural life and to pay a fine of ₹1,00,000/-, with a default
clause, for the offence under Section 6 r/w. 5(l) of the POCSO Act and;
(iii) imprisonment for life which shall mean imprisonment for the remainder
of this natural life and to pay a fine of ₹1,00,000/-, with a default
clause, for the offence under Section 6 r/w. 5(m) of the POCSO Act and;
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(iv)imprisonment for life which shall mean imprisonment for the remainder
of this natural life and to pay a fine of ₹1,00,000/-, with a default
clause, for the offence under Section 6 r/w. 5(p) of the POCSO Act.
3. The case of the prosecution is that the applicant herein was the
driver of an autorickshaw in which the survivor, a 9-year-old child, used to be
taken to the school. On 15.08.2017, the applicant is alleged to have placed the
child on his lap and subjected her to sexual abuse. This was allegedly repeated
by the applicant on the succeeding day as well. It is further alleged that on
09.03.2018, the applicant took the child to ‘Thiruvamanapuram’, and during the
journey, placed the child on his lap with the intent to sexually abuse her and
thereafter, subjected her to sexual assault.
4. Sri. Yoosaf Safwan, the learned counsel appearing for the
applicant, submitted that the finding of guilt arrived at by the learned Sessions
Judge cannot be sustained under law. The learned counsel would urge that the
learned Sessions Judge has erred in placing reliance on the evidence of PW2, the
survivor, PW3, the mother of the child, and PW8, the aunt of the child, who had
witnessed the applicant herein travelling with the child by placing the child on his
lap. He would further urge that the learned Sessions Judge has not properly
appreciated Ext.P14 analysis report, prepared by the Forensic Science Lab, as
per which the presence of spermatozoa was detected in the clothes of the child.
He would urge that the failure of the Investigating Officer to seize the clothes of
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the applicant to ascertain the presence of any body fluid in them is fatal. This,
according to the learned counsel, is an error. Relying on the observations of the
Apex Court in Santosh Kumar Singh v. State through CBI 1, it is urged that
the seizure of samples was not in accordance with the law. He points out that
though the occurrence had taken place on 09.03.2018, the clothes of the child
were handed over by the mother only on 18.05.2018, and it was sent for
analysis much later. He would also refer to the Forwarding Note, and it is
submitted that the clothes of the survivor were not sealed at the time of
forwarding the same for the purpose of analysis. According to the learned
counsel, a proper evaluation of the entire records would reveal that the detection
of spermatozoa in the inner garments of the child was cooked up with a view to
falsely implicate the applicant herein.
5. The learned Public Prosecutor has vehemently opposed the
submissions. She would point out that immediately after the incident, the
applicant herein had submitted a letter of apology, wherein, he had admitted
that he had taken the survivor clandestinely to a place without any authority. She
submitted that the survivor who was examined as PW2 gave an intense and
graphic version of the abuse that she was subjected to. It is further submitted
that the minor omissions and embellishments pointed out by the learned counsel
in the evidence of PWs 2, 3, and 8, were trivial and did not affect the core of the
1
(2010) 9 SCC 747
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prosecution case. Finally, it is submitted that the report of DNA analysis
corroborated the version of the child, as the spermatozoa found on the clothes
were found to be that of the applicant.
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.P2. The Apex Court has held that there is a difference between
the grant of bail under Section 439 of the Cr.P.C in cases of pre-trial arrest and
the suspension of sentence under Section 389 of the 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 bail is the rule and jail is the exception, as held by this Court in
Dataram Singh v. State of U.P3. 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
2
(2020) 8 SCC 645
3
[(2018) 3 SCC 22]
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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. After evaluating the facts and circumstances, we are of the view
that the learned Sessions Judge has properly appreciated the evidence of PWs 2,
3, and 8, as well as the analysis report, and has arrived at the finding of guilt.
The minor omissions and embellishments pointed out by the learned counsel are
trivial and were not of such a nature as to sully the credibility of the testimony of
the survivor. The report of DNA analysis corroborates her version. 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. Furthermore, unless the applicant is able to establish
that the appreciation of evidence by the learned Sessions Judge is perverse or
that the finding of guilt could not have been arrived at based on the said
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evidence, this Court would not be justified in suspending the execution of the
sentence.
In view of the discussion above, we are of the view that the applicant has
not made out any grounds for suspending the execution of the sentence imposed
by the learned Sessions Judge.
This application is dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
VIJU ABRAHAM,
JUDGE
APM
07-03-2025 /True Copy/ Assistant Registrar
