Kerala HC Refuses Sentence Suspension to Convict in 2017 Actress Assault Case, Cites Bail Violations and Crime Gravity
The Kerala High Court dismissed accused No. 2's plea to suspend his 20-year sentence, finding prima facie evidence of conspiracy and noting he allegedly made defamatory videos against the victim while on bail.
A Division Bench of the Kerala High Court, comprising Justice Raja Vijayaraghavan V. and Justice K. V. Jayakumar, on 31 July 2026 dismissed an application filed by Martin Antony, convicted accused No. 2 in the 2017 actress assault case, seeking suspension of his sentence pending appeal. The court, after examining the trial court judgment and the materials placed on record, found that no exceptional circumstance had been made out to justify suspending execution of the sentence under Section 389 of the Code of Criminal Procedure. The bench also took note of allegations that the applicant had violated bail conditions imposed by the Supreme Court by making defamatory videos against the victim, and that a separate crime had been registered against him in this regard. The application was filed under Section 430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023.
The Conviction and Sentences Imposed by the Trial Court
Martin Antony was accused No. 2 in S.C. No. 118 of 2018 before the Principal Sessions Court, Ernakulam. By a judgment dated 12 December 2025, the Sessions Judge convicted him, along with accused Nos. 1 and 3 to 6, for offences punishable under Section 376D (gang rape), Section 120B read with Sections 342, 354, 354B, 357 and 376D of the Indian Penal Code, and Sections 66E and 67A of the Information Technology (Amendment) Act. He was also convicted under Section 109 read with Sections 342, 354, 354B, 357, 366 and 376D, and Section 201 of the IPC.
The sentences handed down were substantial. For the offence under Section 376D, the court imposed rigorous imprisonment for 20 years and a fine of Rs. 50,000. For the conviction under Section 120B read with the related provisions and the IT Act offences, another 20 years of rigorous imprisonment and a fine of Rs. 50,000 were imposed. For the offence under Section 366, the sentence was 10 years of rigorous imprisonment and a fine of Rs. 25,000. Sentences of one year each were imposed for the offences under Sections 342 and 357, three years of rigorous imprisonment and a fine of Rs. 25,000 for Section 201, all with default clauses. Accused Nos. 7, 8, 9, and 15 were acquitted by the Sessions Judge.
The Prosecution Case Against the Applicant
The prosecution alleged that accused No. 8 had hatched a criminal conspiracy with accused No. 1 to abduct, sexually assault, and record sexually explicit visuals of the victim — a leading actress — to defame and harass her. Accused No. 1 agreed to execute the plan for money. Earlier attempts on 4 and 5 January 2017, while the victim was shooting in Goa, failed. The conspirators then refined their plan.
On 17 February 2017, the applicant drove the victim from her residence in Thrissur towards Ernakulam in a Mahindra XUV bearing registration KL-39-F-5744. The prosecution alleged that, during this journey, the applicant continuously shared the vehicle's location with accused No. 1 via phone. Near Kottayi, a van bearing registration KL-60-9338 staged a fake accident by ramming the rear of the XUV. Accused Nos. 1, 3, and 4, who were waiting in that van, then entered the XUV at different points, abducted the victim, wrongfully confined her in the vehicle, and accused No. 1 committed rape. The visuals were recorded on a mobile phone in a manner that disclosed the victim's identity.
After dropping the victim at the residence of PW5, the applicant allegedly attempted to flee the scene and was brought back only through the intervention of PW5's driver, PW8. He then entered a bathroom and destroyed his SIM card by flushing it down the toilet, in an apparent attempt to erase his communication records. Police found his phone without a SIM card shortly thereafter.
The trial involved 261 prosecution witnesses, 835 exhibits, and 142 material objects. The defence examined three witnesses and marked 221 exhibits.
What the Applicant Argued
Dr. Alex Joseph, appearing for the applicant, contended that the Sessions Judge convicted the applicant without properly evaluating the evidence. He argued that the testimony of PW1, the victim, was unworthy of credence and that the court had failed to account for contradictions and omissions in the prosecution's case.
The central argument was that the applicant was merely a driver who was asked, at the last minute, to pick up the victim and had no knowledge of the criminal plan. The defence submitted that none of the witnesses, including PW1, had deposed to any active role played by the applicant. No motive or mens rea was attributed to him, and the conspiracy meeting allegedly held at the residence of PW12 on 11 February 2017 did not involve the applicant, with PW12 himself not mentioning him.
The defence also argued that the applicant was not present at the time of the sexual assault, was not a witness to it, and was in fact removed from the vehicle by the other accused during the commission of the crime. Unlike the other accused, he did not conceal his identity. He also submitted that the applicant was subjected to physical abuse by the other accused.
On sentence, the counsel pointed out that the applicant was arrested on 17 February 2017 and had undergone more than five years as an undertrial prisoner before being enlarged on bail by the Supreme Court on 9 March 2022. He had been serving the sentence from 12 December 2025. The defence argued that the Sessions Judge's acquittal of accused No. 8, who allegedly initiated the conspiracy, undermined a major part of the charge.
The State and Victim's Opposition
The Special Public Prosecutor, Sri V. Ajakumar, opposed the application vigorously. He submitted that the applicant played a role equal to or greater than that of accused No. 1 in the conspiracy, preparation, and execution of the crime. Evidence of PW45 established that the applicant was appointed as the victim's driver on the specific recommendation of accused No. 1. Call detail records (CDRs) showed that accused Nos. 1 and 2 were in contact throughout. Between 18:13 and 19:23 hours, they contacted each other six times. Immediately before the staged accident near Kottayi, accused No. 1 sent a message to the applicant: “phonil allengil signal.”
The prosecution pointed out that PW1 categorically deposed about the applicant's involvement, including his use of one hand to drive while constantly sending messages communicating their location. After the fake accident, the applicant got out of the vehicle and re-entered along with accused Nos. 3 and 4 without offering any resistance. He stopped the vehicle at multiple pre-planned points to facilitate the entry and exit of other accused.
The Special Public Prosecutor further submitted that the Supreme Court had granted the applicant bail solely due to the prolongation of the trial, subject to stringent conditions, but the applicant violated those conditions by making defamatory videos against PW1. A crime was registered against him as Crime No. 77/2025 for offences under Sections 72, 75(1)(iv), and 79 of the Bharatiya Nyaya Sanhita and Section 67 of the Information Technology Act by the Cyber Crime Police Station, Thrissur, and the investigation was ongoing.
The State had also preferred Crl. A No. 295/2026 seeking enhancement of the applicant's sentence. The Special Public Prosecutor submitted that the applicant had not yet served even half of the 20-year sentence and that Section 374(4) of the Code mandates disposal of appeals arising from convictions under Section 376D within six months of filing, with the prosecution ready for final hearing at any time.
Smt. Vrinda Grover, appearing for the victim, characterised the offence as diabolic and macabre, submitting that once conviction is recorded the presumption of innocence ceases to exist. She relied on Preet Pal Singh v. State of Uttar Pradesh (2020) 8 SCC 645, Omprakash Sahni v. Jai Shankar Chaudhary (2023) 6 SCC 123, Shivani Tyagi v. State of U.P. 2024 SCC OnLine SC 842, and Khem Singh v. State of Uttaranchal 2025 SCC OnLine SC 1778. She also indicated the victim's intention to prefer an appeal against the acquittal of the other accused and to seek enhancement of sentence.
The Legal Framework Applied by the Bench
Justice K. V. Jayakumar, writing the order, extracted Section 389 of the Code of Criminal Procedure, the enabling provision for post-conviction bail and suspension of sentence, noting that Section 430 of the BNSS is the corresponding provision in the new code. The bench set out the principles governing the exercise of this power from a line of Supreme Court decisions.
In Vasant Tukaram Pawar v. State of Maharashtra (2005) 5 SCC 281, the Supreme Court had held that suspension of sentence should not be passed as a matter of routine and that the appellate court must record reasons in writing reflecting careful consideration of relevant aspects.
In Preet Pal Singh, the Supreme Court drew a clear distinction between pre-conviction bail, where “bail is the rule and jail is the exception,” and post-conviction bail under Section 389, where the presumption of innocence no longer operates. The court held that there must be strong and compelling reasons for granting bail by way of suspension of sentence, and those reasons must appear in the order.
In Omprakash Sahni, the Supreme Court reiterated that once an accused is convicted, the presumption of innocence is erased, and the benefit of suspension of sentence can be granted only in exceptional cases. Relevant factors include the nature of the accusation, the manner of commission of the crime, the gravity of the offence, and the desirability of releasing the accused on bail after conviction for a serious offence.
In Shivani Tyagi, which arose from an acid attack conviction, the Supreme Court stressed that the mere fact of prolonged incarceration cannot, by itself, be a ground for invoking Section 389 without reference to the other relevant factors. The court also cautioned that treating delay in appeal disposal as a sufficient reason for suspension would make the provision's invocation almost inevitable in every serious case, which cannot be the legislative intent.
Synthesising these decisions, the bench held that the appellate court must objectively evaluate the nature of the offence, the manner of commission, the gravity of the crime, the sentence imposed, and the larger considerations of public interest, societal impact, and preservation of public confidence in criminal justice. The requirement to record reasons in the order is not a formality but flows from the legislative intent that a judgment of conviction carries a presumption of correctness unless set aside in appeal.
The Bench's Assessment of the Evidence and the Applicant's Conduct
Reviewing the materials placed before it, the Division Bench found that the trial court records had been called for but were yet to be received, and that some co-accused had not yet filed appeals. The State's appeal against the acquittal of certain accused was also pending.
On the merits, the bench found PW1's testimony to be detailed, consistent, and coherent, covering the entire sequence of events from the moment of the staged collision to the time she reached PW5's residence. The Sessions Judge had analysed her evidence alongside the CDRs (Ext. P236 series and Ext. P237), the location data, and the testimony of PW45, PW8, and other witnesses, and found her account natural, credible, and reliable. Minor contradictions highlighted by the defence were held to be immaterial.
The bench was unable to accept the argument that the applicant was merely a driver with no active role. Prima facie, it found sufficient evidence of a conspiracy among accused Nos. 1 to 6, executed with precision, and that the applicant had shared the common intention of the conspirators. His constant communication with accused No. 1 throughout the journey, stopping the vehicle at pre-planned points, failing to resist the entry of other accused, attempting to flee after dropping the victim, and destroying his SIM card before the police arrived were all taken into account.
On the question of incarceration, the bench acknowledged the applicant's submission that he had served over five and a half years but held that, given the nature and manner of the offence and its broader societal dimensions, this did not constitute a ground for suspension under Section 389. The bench also noted the allegations of bail condition violations — the defamatory videos against PW1 and the registration of Crime No. 77/2025 — as further factors weighing against relief.
The bench recorded that it could not find any patent infirmity, manifest illegality, or perversity in the Sessions Judge's judgment at this interlocutory stage, and that the findings were not so unreasonable or perverse as to justify suspension of sentence.
Order
Crl. M.A. No. 1 of 2026 in Crl. A No. 4 of 2026 was dismissed. The application seeking suspension of sentence under Section 430(1) of the BNSS filed by Martin Antony, accused No. 2, was refused. The Division Bench held that no exceptional or sufficient grounds had been made out warranting suspension of the execution of the sentence imposed by the Principal Sessions Court, Ernakulam.