Sivakumar vs The State Rep. By The Inspector Of Police

The Criminal Appeal challenges the Judgment passed in Spl.SC.No.14 of 2022 by the learned Sessions Judge, Special Court, Exclusive Trial of Cases under POCSO Act, Tiruvannamalai, by holding the petitioner guilty of the offence under Sections 366, 354 of IPC and Section 9(m) r/w 10 of the POCSO Act, 2012 and Section 323 of the IPC and sentenced him to undergo 5 years of RI and to pay a fine of Rs.10,000/- in default to undergo SI for a period of six months for the offence under Section 366 of the IPC and sentenced to undergo 5 years of RI and to pay a fine of Rs.10,000/- in default to undergo SI for a period of six months for the offence under 354 of IPC and Section 9(m) r/w 10 of the POCSO Act, 2012 and sentenced to 6 months of SI. The sentences are ordered to run concurrently.

Aggrieved by the same, the petitioner has preferred Crl.A.No.1146 of 2026 before this Court along with the instant criminal miscellaneous petition.

The case of the prosecution is that the petitioner is the neighbour of the victim child aged about 11 years; that on 16.09.2021, the victim informed her mother (P.W.1) that the petitioner had committed sexual assault by making her sit on his lap and groping her breast on 15.09.2021 and thus committed the aforesaid offences.

The learned counsel for the petitioner/appellant/accused would submit that the evidence of the victim cannot be believed; that there are arguable points in the above appeal which requires consideration; and that out of the sentence of 5 years, the petitioner has already served more than 1 year imprisonment and prayed for suspension of sentence pending disposal of the appeal.

The learned Additional Public Prosecutor, for the respondent, per contra, would submit that the petitioner is a habitual offender and five previous cases have been registered against him and had given the list of cases.

It is seen from the list that apart from the case in question, the petitioner is said to have been involved in five cases. Out of the five cases, two cases have been referred, and one case has been disposed of. The fourth case is registered for the offences under Sections 25(1)(a) of the Arms Act, 7(1)(a) of the Criminal Law Amendment Act and 126(2) of BNS is pending trial, and the other case is said to have been registered in the year 2016. (The list says it is registered for Section 41(2) of Cr.P.C., which is not an offence).

This Court finds that the petitioner has raised substantial grounds in the above appeal, which requires consideration. The appeal is not likely to be taken up in the near future. The petitioner has served almost one year of imprisonment out of 5 years of imprisonment imposed by the trial Court. Since most of the cases are disposed of and the other cases are petty offences, this Court is inclined to grant the relief of suspension of sentence to the petitioner.

Accordingly, this criminal miscellaneous petition stands allowed, and the sentence imposed on the petitioner is suspended till the disposal of the above criminal appeal, and the petitioner is ordered to be released on bail on the following conditions:

(a).The petitioner shall execute a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only), with two sureties, each for a like sum to the satisfaction of the learned Sessions Judge, Special Court, Exclusive Trial of Cases under POCSO Act, Thiruvannamalai;

(b). The petitioner and the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the Trial Court may obtain a copy of their Aadhar card or Bank pass Book and mobile numbers to ensure their identity; and

(c).The petitioner shall appear before the Trial Court on the first and third working day of every month at 10.30 a.m. until the disposal of the appeal and if he is not able to appear before the Trial Court on any day, he shall make arrangements to file an application under Section 317 Cr.P.C. and shall appear before the Trial Court on any other day in lieu of the date of his absence, as directed by the Trial Court.