IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 Crl.Rev.Pet.No. 3727 of 2007() ------------------------------ CRA.118/2004 of ADDL.SESSIONS COURT (ADHOC)III, TRIVANDRUM SC.85/2000 of ASSISTANT SESSIONS COURT, NEYYATTINKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------ RAJAN, S/O.KUNJUKRISHNAN NADAR, PANNANINNAKIZHAKKARIKU VEEDU, CHOVVARA, KOTTUKAL DESOM, KOTTUKAL VILLAGE. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.SHAJIN S.HAMEED RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REP. BY THE CIRCLE INSPECTOR OF POLICE, VIZHINJAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 4/2 /2009 THE COURT ON 04/02/2009 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3727 OF 2009 =========================== Dated this the 4th day of February,2009 ORDER Revision petitioner is the accused in S.C.85/2000 on the file of Assistant Sessions Court, Neyyattinkara. He was convicted and sentenced for the offence under section 323,452 and 307 of Indian Penal Code. Conviction and sentence were confirmed by Additional Sessions Judge, Thiruvananthapuram in Crl.A.118/2004. Revision is filed challenging the conviction and sentence. 2. Prosecution case is that revision petitioner, husband of PW1 was ill-treating PW1 and they were living separately and on 8.8.1998 at about 7 p.m while PW1 and their minor child aged 7 years by name Sukanya were inside the room, revision petitioner criminally trespassed into the room with the CRRP 3727/2007 2 intention to cause their death and using M01 chain strangulated PW1 and the minor daughter and caused hurt to them and thereby committed offences under section 323, 452 and 307 IPC. Revision petitioner pleaded not guilty. On the evidence of Pws. 1 to 13 and Exts.P1 to P9, Sessions Judge found the revision petitioner guilty of the offences under section 307, 323 and 452 IPC. For the offence under section 307 revision petitioner was sentenced to rigorous imprisonment for five years and for the offence under section 452 rigorous imprisonment for three years apart from a fine of Rs.10,000/- and Rs.5000/- respectively. He was also sentenced to rigorous imprisonment for one year for the offence under section 323 of IPC. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence. It is challenged in the revision. In the revision, revision petitioner filed Crl.M.A.11960/2008 under section 482 of Code of Criminal Procedure seeking permission to compound the offence based on the compromise CRRP 3727/2007 3 entered into with the wife PW1. An affidavit of PW1 was filed wherein she also stated that they have settled all the disputes including the cases pending before the Family Court and they have agreed to compound the offence involved in this case . 3. Learned counsel appearing for the revision petitioner and learned counsel who appeared for PW1 the injured and Public Prosecutor were heard. 4. Learned counsel for the revision petitioner as well as the learned counsel for his wife PW1 submitted that there were several cases pending before the Family Court for dissolution of the marriage, for maintenance and for return of the amount and all those cases were settled and pursuant to the settlement their marriage was dissolved by Family Court, Thiruvananthapuram in O.P 1015/1997. It was also submitted that one of the terms of the settlement was settlement of this case and PW1 and minor daughter had already been compensated by the revision petitioner. It is CRRP 3727/2007 4 therefore submitted that the offence may be permitted to be settled and eventhough an offence under section 452 and 307 IPC are not compoundable in view of the decision of the Apex Court in Madan Mohan Abbot v. State of Punjab (2008(2) KHC 589), Jagdish Chanana and others v. State of Haryana and another (2008(2) KHC 403) and Nikhil Merchant v. Central Bureau of Investigation (2008(3) KLT 769) the conviction may be set aside under section 482 of the Code of Criminal Procedure. 5. The courts below convicted the revision petitioner for the offence under section 307 of IPC finding that revision petitioner strangulated PW1 with the intention to cause death. PW4 and PW8 the doctors who examined PW1 along with Exts.P2 and P5 wound certificate and treatment certificates were relied on to uphold the conviction for the offence under section 307 IPC. The wound certificate and the treatment certificate show that PW1 was examined by the doctor at 9.30 p.m on the CRRP 3727/2007 5 allegation that she was throttled at 7.30 p.m on that day and the patient was conscious and was admitted in the hospital. Ext.P5 treatment certificate with the evidence of PW8 establish that there was ligature mark present on the neck and she was discharged from the hospital on 14.8.1998. Though Pws. 4 and 8 were examined, they did not depose that the injuries sustained by PW1 were either sufficient to cause death or were likely to cause death. Courts below convicted the revision petitioner for the offence under section 307 relying on the evidence of PW1 that the intention was to cause death. On going through the evidence of Pws.4 and 8, it cannot be said that the injuries were grievous or were likely to cause death of PW1. The intention to cause death is also not conclusively proved by the evidence of PW1. Pws. 2 and 3 though corroborated the evidence of PW1, did not depose that revision petitioner inflicted the injuries noted in Exts.P2 and P5 with the intention to cause her death or with the knowledge that the CRRP 3727/2007 6 injuries are likely to cause death. Therefore conviction of the revision petitioner for the offence under section 307 is not sustainable. It could only be said that revision petitioner committed an offence under section 324 of Indian Penal Code. If that be so, at best the conviction could only be for the offence under section 324 IPC. The offence under section 324 is compoundable under sub section (2) of Section 320 of Code of Criminal Procedure, as the amended Act deleting Section 324 has not come into effect. When PW1 the injured herself stated that they have settled the dispute and sought permission to compound the offence, permission can be granted to compound the offence under section 324 IPC under sub section (2) of Section 320 of Code of Criminal Procedure. The offence under section 323 is compoundable. Under sub section (1) of Section 320, even permission of the court is not necessary. What remains is only the offence under section 452 of IPC. Though an offence under CRRP 3727/2007 7 section 452 of IPC is not compoundable under section 320 of Code of Criminal Procedure, as settled by the Apex Court when an offence is committed due to the family dispute between the husband and wife which was purely personal and subsequently settled by getting a decree for divorce from the Family Court and both the husband and the wife submitted that they have settled all the disputes and PW1 was compensated for all injuries sustained by her, considering the fact that the offence committed is personal and not public, in the interest of justice exercising the power under section 482 of Code of Criminal Procedure conviction for the offence under section 452 of Indian Penal Code is quashed. Criminal Revision Petition is allowed. Conviction of the revision petitioner for the offence under section 307 IPC is set aside. Though the offences committed by the revision petitioner is under section 323 and 324 of IPC, the said offences are compounded under section 320 of Code CRRP 3727/2007 8 of Criminal Procedure. The conviction for the offence under section 452 is set aside exercising the extra ordinary inherent power under section 482 of the Code of Criminal Procedure. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006