ORDER
V.K. Mohan, J.
1. Cri.A. No. 572 of 2009
Admit. The Public Prosecutor takes notice. Cri. M.A. No. 3031 of 2003
The Public Prosecutor takes notice.
2. This is an application under Section 389(1) read with Section 357(2) of the Code of Criminal Procedure (for short 'the Cr.P.C.') filed along with the above appeal with a prayer to suspend the execution of sentence passed against the petitioner/appellant in S.C. No. 79 of 2007 on the file of the Additional District and Sessions Judge (Special), Kottayam dated 25.2.2009.
3. When the above matter came up for consideration on 20.3.2009., Sri. V.G. Govindan Nair, the learned Public Prosecutor and the Director General of Prosecution sought time to file objection on the basis of the proviso to Section 389(1) of the Cr.P.C. and accordingly, the matter was adjourned and stood posted for consideration on 2.4.2009. In the mean while, they have filed their objection on 31st March, 2009. Thus, i have heard Mr. John. S. Ralph, learned Counsel appearing for the petitioner/appellant and also Sri. V.G. Govindan Nair, learned Public Prosecutor and the Director General of Prosecution.
4. The petitioner/appellant is the third accused in S.C. No. 79 of 2007 on the file of the Additional Sessions Judge (Special), Kottayam. By judgment dated 25.2.2009, the court below convicted accused Nos. 1 to 3 for the offences under Sections 342, 354, 366, 366A, 376(2)(g) and 506(ii) read with Section 34 of I.P.C. and Section 4 of the Kerala Prohibition of Ragging Act, 1998 read with Section 34 of I.P.C. Accused Nos. 4 to 9 were acquitted as per the same judgment.
5. On conviction of accused Nos. 1 and 2, the court below under Section 376(2)(g) of I.P.C. sentenced them to undergo rigorous imprisonment for a term often years each and also for a fine of Rs. 20,000/- each and in default of payment of fine, they are directed to undergo rigorous imprisonment for one year each. Under Sections 342 and 354 of I.P.C., accused Nos. 1 and 2 are sentenced to undergo rigorous imprisonment for a term of six months each for each of the offences and under Sections 366, 366A and 506(ii), they are sentenced to undergo rigorous imprisonment for two years each for each of the offences. Under Section 4 of the Kerala Prohibition of Ragging Act, 1998, accused Nos. 1 and 2 are sentenced to undergo rigorous imprisonment for a term of one year each.
6. But, in the case of the petitioner/appellant, who is the third accused, though he is convicted under Section 376(2)(g) of I.P.C., he is sentenced to undergo rigorous imprisonment only for a period of three years and to pay a fine of Rs. 5000/- and in default of payment of tine, to undergo rigorous imprisonment for a further period of three months. Along with accused Nos. 1 and 2, similar sentences are imposed against the petitioner/appellant for the offences under Sections 342, 354, 366, 366A and 506(ii) of I.P.C. and also under Section 4 of the Kerala Prohibition of Ragging Act, 1998. The trial court also ordered that the sentences shall run concurrently. It is also ordered that a sum of Rs. 25,000/- out of the fine, if paid or recovered, shall be given to PW2 as compensation as provided by Section 357(1)(b) of the Cr.P.C.
7. Thus, it can be seen that the maximum sentence of imprisonment awarded against the petitioner/appellant is only for a period of three years rigorous imprisonment and a fine of Rs. 5000/-. The execution of the above sentence is sought to be suspended by invoking the powers of this Court under Section 389(1) read with Section 357(2) of the Cr.P.C.
8. Brief facts of the prosecution case are as follows. PW2 was a student of School of Medical Education.. Gandhinagar, Kottayam who had just joined for the 1st Year B.Sc. Nursing course in the said institution. The classes for the 1st Year course started on 5.9.2005 and initially, she was a day scholar till 18.9.2005 and on 19.9.2005, she joined in the Santhinikethan hostel situated adjacent to the School of Medical Education. According to the prosecution, PW2 was in need of leave on 22.10.2005 and thus, on 21.10.2005 at about 4 p.m., she met accused No. 7, the Principal at her office in the second floor of the institution and submitted the leave application and while she was coming down, she found accused Nos. 1 to 6 standing on the steps. It is the specific case of the prosecution that when PW2 passed the accused, accused No. 1 called her back and asked whether she did not know that junior would wish the seniors whenever they see them and thereupon accused Nos. 1 to 6 ridiculed, humiliated and ragged her at the steps and then accused No. 1 told her to come to nearby room and after wishing them, she can go. Thus, according to the prosecution, accused Nos. 1 to 3 including the petitioner/appellant took her to the Histo-pathology lab situated at the first floor of S.M.E., the School of Medical Education. Thereafter, accused No. 1 bolted the door from inside and directed PW2 to sit on a chair. Thereafter, he gave a laddu like item mixed with a stupefying substance and told her to eat the same. Obliging the direction, PW2 ate the same and became physically and mentally exhausted. Then, they directed her to remove her dress and when she refused, they forcibly removed her dress and laid her on a work bench. Thereafter, accused Nos. 1 to 3, after undressing, looked at her and made insinuating comments. Thereafter, accused Nos. 1 and 2 committed rape on her. According to the prosecution, the petitioner/appellant, who is accused No. 3, did not commit rape on her, but he kissed on her face and chest and fondled her body parts and thus outraged her modesty. By this, PW2 was terribly shocked and exhausted and was unable to object or react. Further, after such sexual assault, the accused told her to wear her dress, but she was unable to do so. Thus, they dressed her up and first accused then criminally intimidated her by saying that if she divulged the incident to anybody, they will pour acid on her face. Then they opened the door and PW2 came out of the room. At that time, accused Nos. 4 to 6 were standing outside and guarding the Histo-pathology lab to ensure that nobody entered the lab room and thereby they rendered aid and support to A1 to A3 in accomplishing their illegal acts.
9. On the basis of the above allegation, Crime No. 513 of 2005 was registered in the Gandhi Nagar Police Station for the said offences and investigation was undertaken which culminated in filing the report. During the trial, PWs.l to 27 were examined and Exts.Pl to P108 documents were marked from the side of the prosecution. Material objects such as MOs.1 to 30 were also identified and marked. The incriminating circumstances, which emerged during the evidence of prosecution, when put to the accused under Section 313 of the Cr.P.C, they denied the same. The accused took a defence of total denial and maintained the plea of innocence. During the defence evidence, DWs. 1 to 7 were examined and Exts.DI to D4 and C1 series (a to s) were marked. Based upon the rival pleadings and the materials on record, the trial court formulated 13 points for its consideration and finally, pronounced the above judgment, which is being challenged in this appeal.
10. In support of the fervent plea for release of the petitioner on bail after suspending the execution of the sentence, Mr. John. S. Ralph, the learned Counsel for the petitioner submitted that though the petitioner has been found guilty for the offences by extending Explanation 1 of Section 376(2)(g) of I.P.C., the trial court had specifically found that accused No. 3 has not committed rape on PW2 and hence, he is sentenced to undergo rigorous imprisonment for only three years and a fine of Rs. 5000/- and thus, according to the learned Counsel, the case of the third accused is a different one and the same deserves a separate treatment from that of accused Nos. 1 and 2. It is also argued by the learned Counsel that the trial court has not formulated any issue with regard to the complication of accused No. 3, being a member of the gang who committed the rape and therefore, the conviction under Section 376(2)(g) of the I.P.C. against the petitioner/appellant is illegal and incorrect. Learned Counsel, inviting my attention to page No. 62 of the deposition of PW2, submits that PW2 was not prepared to undergo lie detecting test or brain mapping test and such stand of PW2 itself is sufficient to reject her evidence and consequently, the entire prosecution case has to be disbelieved. On the basis of the admission of PW2, as contained in page Nos. 1 and 9 of her deposition, the learned Counsel submits that subsequent complaint and prosecution case, itself are unbelievable and made only as an afterthought, since PW2 herself has stated that she did not raise any complaint at any forum. On the strength of the statement of PW2, recorded under Section 164 of Cr.P.C, it is the case of the counsel that even the victim has miserably failed to establish the identity of the petitioner/appellant. Relying upon the discussion contained in page 86 of the judgment, the counsel submits that the prosecution has miserably failed to establish that the incident had taken place as a result of premeditation. On the other hand, if the finding of the court below is accepted as such, it happened so accidentally. Based upon the finding of the trial court, which is contained in page 117 of the impugned judgment, the learned Counsel submits that even according to the trial court, there is no evidence to show that the accused administered any stupefying substance or drug on PW2 and therefore, even if sexual intercourse had taken place, the same was with the consent of PW2/the victim and hence Section 376(2)(g) of I.P.C. is not attracted. Inviting my attention to para 52 of the judgment and the evidence discussed thereon, the learned Counsel submits that there is no medical evidence to show that PW2 was subjected to sexual intercourse and assault and the available evidence would show that she is virgin and therefore, no offence under Section 376(2)(g) of I.P.C. is attracted. It is also the case of the learned Counsel that if the entire prosecution case regarding the rape is admitted as true, not conceded, the petitioner/accused No. 3 could have committed rape on the victim, but he did not attempt for it as correctly found by the court below and therefore, it can be safely concluded that the petitioner/appellant has no intention to commit rape on PW2 and hence, the appellant/accused No. 3 cannot be convicted with the aid of Section 34 I.P.C. or on the allegation that he is a member of the gang who committed rape. Finally, the learned Counsel submits that since the maximum sentence awarded against the petitioner/appellant is only three years imprisonment, the petitioner is entitled to get suspended the execution of sentence and to be released on bail, especially in the light of the fact that the trial court suspended the execution of the sentence and released him on bail in exercise of its powers under Section 389(3) of Cr.P.C. In support of the above submission, the learned Counsel very much placed reliance upon the decision of the Honourable Apex Court reported in Bhagwan Rama Shinde Gosai v. State of Gujarat : 1999CriLJ2568 .
11. On the other hand. Sri. V.G. Govindan Nair, learned Public Prosecutor and the Director General of Prosecution vehemently opposed the prayer for suspending the sentence and submitted that the criteria to be adopted, when considering the question of suspending the sentence, is not the duration of the sentence of imprisonment awarded, but utmost regard should be given to the facts which constituted the allegation against the appellant/third accused and the proved offences against him. Along with the objection filed, the State has produced a true copy of the order of another learned Judge of this Court as Annexure R-1. Annexure-R1 is the order dated 4.3.2009 of this Court by which the similar prayer of accused Nos. 1 and 2 in the very same case was rejected. Relying upon the said order, the learned Public Prosecutor submits that this Court has to look into the proved allegations as per the impugned judgment. After considering the decisions reported in University of Kerala v. The Council of Principals of College in Kerala and Ors. : 2009(2)SCALE372 and Vishwa Jagriti Mission through President v. Central Government through Cabinet Secretary and Ors. AIR 2001 SC 2793, this Court has observed in the following way:
The petitioners have been, after a protracted trial, found guilty of ragging in the most savage form. If they were to be released on bail by this Court after suspending the sentence passed against them, this Court will be sending a wrong message to the peace -loving community at large. Once a court convicts an accused person, the presumption of innocence comes to an end.
It was also observed that the accused were allegedly hailing from wealthy families and the victim girl was said to be hailing from impecunious circumstances.
12. In support of the above submission, the learned Public Prosecutor invited my attention to the latest amendment brought to Section 389(1) of Cr.P.C. by adding a proviso. The said amendment was brought into force with effect from 23.6.2006 as per the notification S.O. 923(E) dated 21st June, 2006. The said proviso reads as follows:
(Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release.)
The learned Public Prosecutor, on the basis of the emphasised words contained in the proviso, submits that it is not actually the period of imprisonment imposed as sentence to be considered, but the nature of the allegations and the offences charged. Thus., according to the learned Public Prosecutor, even though the petitioner is sentenced to undergo only three years imprisonment, he is convicted for an offence wherein the punishment contemplated is of life or of a term which may extend to ten years, and the nature of the allegations and the gravity of the offences are to be considered while dealing a petition like present one at the instance of a convicted person for his release on bail. By introducing the said amendment, it is mandatory on the appellate court to give an opportunity to the Prosecutor for showing cause in writing against the release of such convicted person. According to the Public Prosecutor, the said proviso was brought into effect with abundant caution and to consider the objection of the Prosecutor for not releasing such convicted person wherein the offence alleged is punishable for the period mentioned earlier. Regarding the other points, the learned Public Prosecutor submits that all those factual questions are to be appreciated at the time of considering the appeal on merit and on the basis of materials and evidence. So, according to the learned Public Prosecutor the petitioner is not entitled to get an order as sought for considering the gravity of the allegations and heinous nature of the crime he committed.
13. I have carefully considered the arguments advanced by both the counsel for the petitioner/appellant as well as the learned Public Prosecutor.
14. At the outset, it is to be noted that the learned Counsel for the appellant/petitioner has raised several grounds in his vociferous plea for enlarging the petitioner on bail and except the legal ground, all other grounds are based upon facts, which are disputable and any finding based upon such contentions and counter arguments is likely to touch the merits of the case which causes prejudice against either of the party and hence I myself is restrained and constrained from entering into any such finding. But, at the very same time, this Court cannot reject those contentions outrightly. Therefore, I have considered the evidence and materials which were referred and discussed by the court below in its judgment. While considering the present petition, this Court also cannot ignore the order passed by another learned Judge of this Court with respect to the similar petition filed by accused Nos. 1 and 2 in the very same case and the observation made thereon as per Annexure R1 order. The trial court in its impugned judgment has observed that' Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self esteem and dignity.' The sentence policy of the trial court is discernible from its own words which runs as, 'It is settled law that even in ordinary criminal terminology a rape is a crime more heinous than murder as it destroys the very soul of helpless woman. The measure of punishment in a case of rape cannot depend upon the social status of the victim of the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act.' Thus, the trial court, who got the privilege to observe the demeanour of parties, finally found that the accused are guilty for the said offences. So, this petition is being considered at a stage after the finding of the trial court regarding the allegations raised against the accused and the appreciation of evidence and the finding of the court regarding the guilt of the accused. The criteria and the policy be adopted while considering the merit of the petition under Section 389(1) is entirely different while considering an application for bail filed under Sections 437, 438 and 439 of the Cr.P.C. As rightly observed by this Court, as per Annexure R1 order, once a court convicts an accused person, the presumption of innocence comes to an end. This Court made such observations on the basis of the decisions reported in B.R. Kapur v. State of Tamil Nadu : AIR2001SC3435 and Sidharthan Vashisht @ Manu Sharma v. State (NOT of Delhi) : 2008CriLJ3524 . So the factual ground raised by the petitioner deserves no consideration at this stage, especially when nothing is shown to come to a conclusion that no offence will lie against the petitioner, even if the allegations are admitted as such.
15. The contention that the petitioner is entitled to get bail, since he is sentenced to only three years imprisonment, especially when the trial court itself suspended the sentence, according to me, is not appealable. First of all, the order passed by the convicting court under Section 389(3) of Cr.P.C. is not a 'fitness certificate' for granting an order in favour of the convicted person upon a petition under Section 389(1) or 389(2) of the Cr.P.C. In view of the proviso brought to Section 389(1) of the Cr.P.C, in a petition to suspend the sentence where the conviction is for the offence punishable with life or a term which may extend to 10 years, it cannot be said that such convicted person is entitled to get bail as a matter of right, though the sentence imposed is only for a period of three years. As rightly pointed out by the learned Public Prosecutor, the criteria must be the nature of the allegations, the seriousness of the offences revealed and the manner of commission of the crime. If that be so, the petitioner is disentitled to get any such relief as prayed for.
16. On a reading of the proviso which is newly introduced to Section 389(1) of the Cr.P.C., it can be seen that the criteria to be adopted, while dealing with an application by the appellate court, at the instance of the convicted person is not the period of imprisonment awarded by the trial court, but the nature of the offences contemplated in that provisions. While introducing the proviso to Sub-section (1) of Section 389, the same legislative authority, who incorporated Clauses (i) and (ii) to Sub-section 3 of Section 389, in exercise of their legislative wisdom deliberately omitted to prescribe any such period of imprisonment awarded or the fact whether the offence is bailable or non-bailable one. By using the words 'punishable with' in the above provision, it is crystal clear that the legislative intention is to restrict the releasing of convicted person on bail, ignoring the period of imprisonment awarded and also ignoring the offence whether bailable or non-bailable. At that point of time, the only consideration must be the seriousness of the offence alleged and proved, especially the category of offences, which are 'punishable with' sentence of death or imprisonment for life or imprisonment for a term of not less than ten years. In other words, in order to attract the above restriction, the convicted person need not be punished with the entire period of imprisonment contemplated and awardable. So the contentions of counsel for the petitioner/appellant, that the appellant is sentenced only for three years and the trial court has granted bail, are untenable. Therefore, in view of the above new provision, though the sentence awarded is only for three years or less, on application of the above criteria while dealing with a petition under Section 389(1) of Cr.P.C., the petitioner is not entitled to get relief as sought for in this petition.
17. Even otherwise on a reading of Sub-section (1) of Section 389, it can be seen that in an appeal, suspension of execution of sentence and bail cannot be claimed as a matter of right and it can only be considered and granted in exercise of the discretionary power of the appellate court. It is also relevant to note that by employing the terms namely, 'for reasons to be recorded by it in writing', for issuing an order of suspension of sentence, the court must satisfy with the reasons for passing such orders. The proviso, introduced as per the amendment mentioned above, is only in consonance with the above stipulation contained in Sub-section (1) of Section 389. Before the amendment, giving of such an opportunity in favour of prosecution was not contemplated. Thus, it can be seen that before the amendment mentioned above, it was incumbent upon the appellate court to state the reasons for passing such order in favour of a convicted person. By introducing such proviso, the legislature specifically intended to impose duty on the prosecution to file a statement of objection in writing against the grant of such order where offences are found against the convicted person in such a nature and thus, it is heavily burdened with the appellate court to overrule such objection with adequate reason in granting an order in terms of Section 389(1) of the Cr.P.C. According to me. the above restriction is introduced through the above provisions for two reasons. First reason is in respect of consideration of the seriousness and gravity of the offences referred in that section and secondly, the fact that the trial court., being a fact finding authority, has come to a conclusion regarding the guilt of the accused. Thus, the presumption of innocence of the accused is replaced by said convictions and unless there are substantial reasons to be recorded, such convicted person cannot be released on bail.
18. In support of the plea of the petitioner, the counsel for the petitioner placed reliance upon the decisions of the Honourable Supreme Court reported in Bhagwan Rama Shinde Gosai's case (cited supra). In that case, the offence alleged and conviction against the accused was under Section 392 read with Section 397 of I.P.C. In that decision, the Honourable Apex Court has Observed that '...if for any reason the sentence of limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when motion for expeditious hearing the appeal is made in such cases' Here the appeal is only at the admission stage. In that decision, the Apex Court has also Observed that 'when a convicted person is sentenced to fixed period of sentence and when he files appeal under any statutory right., suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances.' (emphasis supplied) In this case, I have already referred to the entire factual allegations and finding arrived at by the court below. In view of the particular factual scenario and in view of the amendment brought by introducing new proviso to Section 389(1) of Cr.P.C, I am of the view that the present case would come under the category of such exceptional circumstances.
19. A Division Bench of this Court in the decision reported in Arunraj v. Kerala Agricultural University 2009 (1) KLT 682, after depreciating the incident of ragging, reiterated the necessity to strictly implement the provisions of the Prohibition of Ragging Act, 1998. Strict approach of the Hon'ble Supreme Court against the 'Ragging' a social evil, is manifest from the decision of the Apex Court in University of Kerala v. Council of Principals of Colleges in Kerala : 2009(2)SCALE372 . In the above decision, the Honourble Apex Court has held as follows:
12. Ragging in essence is a human rights' abuse. Ragging can be in various forms. It can be physical abuse or mental harassment In present times shocking incidents of ragging have come to the notice. Sometimes violence is used. The student is physically tortured or psychologically terrorized All human being should be free to clam, as a matter of right in the society in which they live, for life of dignity but when it is intentionally or recklessly damaged or departed then the person's human right is abused; in that sense ragging is the best example of human rights' abuse
15. Ragging is a form of systematic and sustained physical, mental and sexual abuse of fresh students at the college/university/any other educational institution at the hands of senior students of the same institution and sometime even by outsiders. Although some form of ragging is present in every educational institution but serious abuses of human rights take place generally in medical and engineering colleges and Armed Forces. The form and effect of ragging differ from institution to institution. It creates a sense of fear in the minds of first year students and they become apprehensive of unforeseen incidents which later comes true and culminates in actual form of action
In the present case, unless the finding of the trial court is reversed or set aside, what proved against the petitioner is that along with accused Nos. 1 and 2, he took the poor girl to the place of occurrence from where she was subjected to sexual intercourse, outraging her modesty and humiliated her. Therefore, at present. I find no reason to suspend the execution of the sentence and to release the petitioner on bail as contemplated by Sections 389 and (2). So, a heinous crime was committed under the guise of ragging - a social menace which has to be depreciated. Therefore, if the prayer is allowed, as observed by this Court in Annexure R1 order, a wrong message is being given to the society. Hence, according to me, in the light of the approach of the Honourable Apex Court and this Court against the ragging, a correct message can be given to the society, including the parents of students like the victim in this case, only by rejecting the prayer.
In the result, there is no merit in the petition and the petitioner's prayer is accordingly rejected.