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2015 DIGILAW 1193 (KER)

REJU v. STATE OF KERALA

2015-08-21

BHASKARAN PILLAI SUDHEENDRA KUMAR, K.T.SANKARAN

body2015
ORDER : K.T. SANKARAN, J. 1. The petitioner, who is the appellant in the Crl. Appeal No. 767 of 2015 was first accused before the Court below. The second accused was the mother of the 15 year old girl, who was allegedly raped by the first accused. The petitioner/appellant was found guilty for the offences punishable under Sections 376(2)(i) and (n) of the Indian Penal Code, Sections 5(1) and (n) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. The petitioner/appellant was sentenced to undergo rigorous imprisonment for life, which shall mean imprisonment for the remainder of his natural life, and also to pay a fine of Rs. 10,000/- under Section 376(2)(i) and (n) of the IPC. He was also sentenced to undergo rigorous imprisonment for six months under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. The conviction and sentence are under challenge in the Crl. Appeal filed by the first accused. 2. Crl. MA No. 4238 of 2015 is filed by the appellant to suspend the execution of the sentence passed by the Court below. The application is opposed by the learned Public Prosecutor. 3. The learned counsel for the appellant submitted that the sentence is liable to be suspended by the Appellate Court unless the presence of the accused in the society would be detrimental to the interests of the general public. It was also submitted that during trial, the petitioner was on bail and there was no allegation against him that during that period, he was involved in any prejudicial activity. The learned counsel also submitted that the tendency to commit crime is an ailment and it has to be treated and cured. In ground No. (H) of the memorandum of appeal, it is stated thus: "In reformative theory of punishment, the tendency to commit crime is treated as an ailment and the punishment given is treated like medicine to cure the ailment. So the punishment/medicine should be the minimum and not the maximum. Over dosage in medication will provide only negative result. The Court below greatly erred in this regard." 4. So the punishment/medicine should be the minimum and not the maximum. Over dosage in medication will provide only negative result. The Court below greatly erred in this regard." 4. The learned counsel for the appellant submitted that since the appeal against conviction and sentence is pending, it is to be treated that the matter has not become final as against the appellant and his application for suspension of sentence and grant of bail should be the rule and not the exception. The learned counsel submitted that if the appellant is detained in prison, it would violate Article 21 of the Constitution of India. A question was posed by the counsel that if ultimately the petitioner/appellant is acquitted, who will compensate for the hardship caused to him? 5. The learned Public Prosecutor submitted that the petitioner committed a very heinous crime against a minor girl aged 15 years and he does not deserve any sympathy. That bail was granted during trial is not a ground to suspend the execution of the sentence at the appellate stage. The learned Public Prosecutor also relied on the decisions in Suzanne Lousie Martin Vs. State of Rajasthan and Another, , Gomti Vs. Thakurdas and Others, , Sidharth Vashisht @ Manu Sharma Vs. The State (N.C.T. of Delhi), State of Haryana Vs. Hasmat, and Shefiq Youseph Vs. State of Kerala. 6. There is no dispute that the victim girl was aged only 15 years. Her mother is the second accused. It has come out in evidence that the father of the victim girl died when she was only three months old. The victim's mother goes for coolie work. The first accused (petitioner) was her co-worker. He started living with the mother of the victim. The allegation is that exploiting the situation, the petitioner had forceful sexual intercourse with the victim girl on several occasions. 7. The victim girl was examined as PW 3. The Trial Court considered the oral and documentary evidence in the case and came to the conclusion that both the accused are guilty. The medical evidence available in the case and the F. S.L. Report would corroborate the oral evidence in the case. 8. 7. The victim girl was examined as PW 3. The Trial Court considered the oral and documentary evidence in the case and came to the conclusion that both the accused are guilty. The medical evidence available in the case and the F. S.L. Report would corroborate the oral evidence in the case. 8. In Suzanne Louise Martin v. State of Rajasthan and Another (cited supra), the High Court suspended the execution of the sentence passed against the accused in a case where a British journalist and business woman was raped by the accused. The Supreme Court held that the High Court was not justified in suspending the sentence and granting bail to the accused. In Shefiq Youseph v. State of Kerala (cited supra), a learned Single Judge of this Court rejected the plea of the accused for suspension of the execution of the sentence of three years of imprisonment on the ground that the relevant consideration while dealing with a prayer for release on bail by a convicted person is the seriousness of the offence alleged and the manner of commission of the crime. In that case, the allegation was that a girl studying in a school was raped by the accused under the guise of ragging. The appellant in that case was sentenced only for three years. Still, execution of the sentence was not suspended. In Gomti v. Thakurdas (cited supra), the Supreme Court held thus: "The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view." 9. In Sidhartha Vashisht alias Manu Sharma, the Supreme Court held: "29. The other consideration, however, is equally important and relevant. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view." 9. In Sidhartha Vashisht alias Manu Sharma, the Supreme Court held: "29. The other consideration, however, is equally important and relevant. When a person is convicted by an Appellate Court, he cannot be said to be an "innocent person" until the final decision is recorded by the superior Court in his favour. 30. Mr. Gopal Subramanium, learned Addl. Solicitor General invited our attention to Akhilesh Kumar Sinha v. State of Bihar, Vijay Kumar v. Narendra, Ramji Prasad v. Rattan Kumar Jaiswal, State of Haryana v. Hasmat, Kishori Lal v. Rupa and State of Maharashtra v. Madhukar Wamanrao Smarm. In the above cases, it has been observed that once a person has been convicted, normally, an Appellate Court will proceed on the basis that such person is guilty. It is no doubt true that even thereafter, it is open to the Appellate Court to suspend the sentence in a given case by recording reasons. But it is well settled, as observed in Vijay Kumar that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider all the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the desirability of releasing the accused on bail after he has been convicted for committing serious offence of murder, etc. It has also been observed in some of the cases that normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted. 31. In Hasmat, this Court stated : (SCC p. 176, para 6)" 6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the applicant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the Appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the Appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said Court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine." (emphasis supplied) 32. The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What is really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail." 10. In State of Haryana v. Hasmat, the Supreme Court laid down the following principles in the matter of suspension of execution of the sentence. "6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the Appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said Court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. 7. The Appellate Court is duty bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighted with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the period the accused-respondent was granted parole." 11. In the instant case, the only factor which seems to have weighted with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the period the accused-respondent was granted parole." 11. The learned counsel for the petitioner submitted that if bail is not granted to the petitioner, that would result in negation of his fundamental right under Article 21 of the Constitution of India. Article 21 of the Constitution of India says that no person shall be deprived of his life or personal liberty except according to procedure established by law. Trial and conviction of the accused in a criminal case are according to the procedure established by law. A convict in a criminal case cannot say that his detention pursuant to conviction and sentence would offend the protection given under Article 21 of the Constitution of India. If the theory put forward by the learned counsel for the petitioner is accepted, no convict in a criminal case could be jailed pending appeal. We are not inclined to accept the submission made by the learned counsel or the appellant. 12. The submission by the learned counsel for the petitioner that unless and until the Appellate Court confirms the conviction and sentence, the petitioner shall be deemed to be innocent, is also a theory which cannot be accepted in view of the principles of law laid down by the Supreme Court in Sidhartha Vashisht alias Manu Sharma (cited supra). We have gone through the judgment passed by the Court below and the materials available in the case as discussed in the judgment. The Court below believed the version of PW 3 victim girl. There is other supporting evidence also. The medical evidence corroborates the evidence of PW 3. Prima facie, we are not inclined to accept the contention put forward by the learned counsel for the petitioner that there is no material to arrive at the conclusion that the petitioner is not guilty of the offences. For the aforesaid reasons, we do not find any ground to grant the reliefs prayed for in the application. The application is accordingly dismissed. For the aforesaid reasons, we do not find any ground to grant the reliefs prayed for in the application. The application is accordingly dismissed. It is made clear that the observations made above shall not be treated as finding on the merits of the case with respect to the guilt of the accused and those observations would not be relevant for the purpose of the final disposal of the appeal.