IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 Crl.Rev.Pet.No. 2381 of 2003() ------------------------------ CRA.235/2000 of ADDL.SESSIONS COURT-III, KOZHIKODE SC.185/1998 of II ADDL.ASSISTANT SESSIONS COURT, KOZHIKODE .................... REVISION PETITIONER(S): APPELLANT:ACCUSED: --------------------------------------------------------------------------- M.SIDDIQUE, S/O.MUHAMMED, MANHORAMMAL HOUSE, MADAVOOR AMSOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENT/COMPLAINANT/STATE: ------------------------------------------------------------------------------------ STATE OF KERALA, REP.PUBLIC PROSECUTOR, HIGH COURT OF KERALA. *ADDL.R2 IMPLEADED: R2. SHEREEFA, W/O.SIDDIQUE, MANHARAMMAL HOUSE, MADAVOOR AMSOM, KOZHIKODE TALUK. (*ADDL.R2 IS IMPLEADED AS PER ORDER DTD. 8/09/2010 IN CRL.M.A.NO.1425/2010) R1 BY PUBLIC PROSECUTOR SRI. B.JAYASURYA R2 BY ADV. SRI.K.A.SALIL NARAYANAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2381 of 2010 ---------------------------------------- Dated the 8th day of September, 2010 ORDER The sole accused in a Sessions Case, i.e., S.C.No.185/1998 of the court of II Addl. Asst. Sessions Judge, Kozhikode, is the revision petitioner as he is aggrieved by the order of conviction and sentence imposed against him under sections 450 and 376 of IPC. 2. The case of the prosecution is that at about 11.30 a.m. on 22.6.1997, the accused with the intention of committing sexual intercourse with the de facto complainant, trespassed into the house No.VII/75 of Madavoor Panchayat wherein the de facto complainant and others were residing, and caught hold of her an took her to the western room and committed rape on her. On the basis of the above allegation, crime No.124/97 was registered in the Kunnamangalam police station and after investigation, a report was filed whereupon cognizance was taken and consequently, instituted S.C.No.185/1998. During the trial , PWs 1 to 12 were examined and marked Exts.P1 to P17 from the side of the prosecution. M.Os 1 to 4 were identified and marked. CRL.R.PNo.2381/03 :-2-: After trial, the learned Sessions Judge found that the accused is guilty for the offences charged against him. 3. I have gone through the judgments of the trial court as well as the lower appellate court. On such perusal of the judgments impugned in this revision Petition, and the evidence and materials on record, it can be seen that the incident was taken place on 22.6.97 and at that time, the de facto complainant was at the age between 16 - 18 years. The accused as well as the de facto complainant are not strangers and the revision petitioner is the son of aunt of the de facto complainant. 4. This court by a separate order, allowed Crl.M.A. NO.1425/2010 impleading the de facto complainant as additional 2nd respondent. In the affidavit filed in support of the above petition, the de facto complainant has stated that the revision petitioner is the son of her aunt and she had married the revision petitioner subsequently. It is also stated in paragraph 2 of the affidavit that the de facto complainant and the accused were in love and after the incident, they got married and are living together as man and wife for the last 12 years. It is also stated CRL.R.PNo.2381/03 :-3-: that her father expired and she is now residing with the revision petitioner and at present she has no grievance against the accused. It is also her apprehension, which expressed in paragraph 2 that, if the revision petitioner is sent to jail in connection with the above case, there is nobody to look after her. It is also stated in the said affidavit that after the death of her father, her only sister who was looking after her got married and her brother is living separately and he has his own family. 5. Both the counsel for the revision petitioner as well as the additional 2nd respondent submitted that as the revision petitioner and the de facto complainant are now residing as husband and wife for the last 12 years, by invoking the jurisdiction of this court under section 482 Cr.P.C, the revision petitioner may be let off of all the charges levelled against him. 6. The offences alleged against the revision petitioner are very serious in nature and that too taken place during the year 1997, 13 years ago. I am conscious that the offences alleged against the revision petitioner are not compoundable and CRL.R.PNo.2381/03 :-4-: normally, even the aggrieved persons in such offneces condone the guilt of the accused, that is not a ground to acquit the accused whose guilt is established during the process of investigation and trial . But in the light of the facts which I mentioned earlier, about which there is no dispute at all, the victim of the offence is now residing along with the offender after regularizing their relationship and as on today, the victim has no other person to look after her other than the revision petitioner who is her husband. Her father already expired, her brother and sister are residing separately establishing their own separate families. Under the above factual backgrounds, a Devision Bench decision of this Court in Thankamma v.State of Kerala (2006(3)KLT 846) become relevant wherein, after discussing various authorities including the decision of the Apex Court, this Court has held in paragraph 13 of the said decision: “ Courts have however, to be guarded that s.482 is not misused so as to compound the offence under S.498- A which is otherwise non-compoundable. The court should examine whether request is bona fide and not intended to get out of the clutches of law. Each case has to be decided on the facts and circumstances of that case. Courts must see that the power of the court under S.482 is not misused. We are therefore of the view that this CRL.R.PNo.2381/03 :-5-: court cannot exercise the powers under S.397 Cr.P.C. so as to compound a non-compoundable offence under S.320 Cr.P.C. and in appropriate cases the courts could exercise its inherent powers under S.482 to save the institution of marriage.” In the light of the factual circumstances involved in the case, I am of the view that the dictum laid down by this Court in the above decision squarely applicable in the present case and by exercising the inherent power of this Court under section 482 Cr.P.C., the revision petitioner as well as the de facto complainant can be permitted to continue their married life, especially under the particular pathetic family background of the de facto complainant. In the light of the above facts and circumstances and the decision of the Division Bench of this Court cited supra, this Crl.R.P. is allowed setting aside the judgments dated 24.5.2000 in S.C.No.185/98 of the II Addl.Asst.Sessions Judge, Kozhikode and the judgment dated 30.6.2003 in Crl.A.No.235/2000 of the III Addl. Sessions Judge, Kozhikode and accordingly, the conviction and sentence imposed against the revision petitioner are also set aside and the revision petitioner is acquitted of all the charges CRL.R.PNo.2381/03 :-6-: levelled against him and he is set at liberty and the bail bond if any executed by him stands cancelled. This Crl.R.P. is allowed accordingly. V.K.MOHANAN, JUDGE kvm/-