IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 Crl.MC.No. 2930 of 2009() ------------------------------------ SC.153/1993 of PRL. ASSISTANT SESSIONS COURT, THALASSERY .................... PETITIONER/ACCUSED --------------------------------- RATHEESAN,S/O.GOPI, AGED 34 YEARS,RESIDING AT MEEPADIYATH PULIKKAMBETH,CHELORA AMSOM,THILANOOR. BY ADV. MR.K.GOPALAKRISHNA KURUP RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. JAYARAJAN,S/O.KUMARAN, AGED 69 YEARS,RESIDING AT KUNNANOTH MOTTAMMEL, MELARA AMSOM,THILANUR, KANNUR. R1 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. R2 BY ADV. MR.N.RAGHURAJ, MR.O.K.SASINDRAN. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/09/2009, ALONG WITH CRRP NO. 2600 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 2930 OF 2009 and CRL.R.P.NO.2600 OF 2009 ------------------------------------------ Dated 14th September 2009 O R D E R Petitioner is the first accused in S.C.153/1993 on the file of Principal Assistant Sessions court, Thalassery. Prosecution case is that on 8/2/1993 at about 7.45 p.m five accused formed themselves into an unlawful assembly with the common object of committing murder of Jayarajan, the second respondent in Crl.M.C.2930/2009 and in furtherance of the common object, armed with deadly weapons committed riot and trespassed into the residential house of second respondent and inflicted injuries with the intention to cause his death and thereby committed offences under Sections 143, 147, 148, 323, 457 and 307 read with Section 149 of Indian Penal Code. All the accused pleaded not guilty. Learned Sessions Judge, as per judgment dated 17/12/1994, acquitted the accused. State filed Crl.Appeal 658/1995 challenging the order of acquittal. As per judgment CRMC 2930/09 & CRRP 2600/09 2 dated 8/2/1993, the order of acquittal was set aside and the case was remitted for deciding afresh whether the accused committed the offence after considering the impact of Section 149 of Indian Penal Code. Learned Assistant Sessions Judge thereafter, as per judgment dated 15/3/2003, acquitted accused 2 to 4 and found the petitioner guilty. He was convicted and sentenced for the offences under Sections 452 and 324 read with Section 149 of Indian Penal Code. Petitioner challenged the conviction and sentence before Sessions court, Thalassery in Crl.A.300/2003. Learned Additional Sessions Judge after re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. Crl.R.P.2600/2009 is filed challenging the conviction and sentence. Revision was admitted. Petitioner along with the second respondent in Crl.M.C.2930/2009, filed Crl.M.A.8534/2009, an application under Section 320 read with Section 482 of Code of Criminal Procedure in the Crl.R.P to compound the offence under Section 324 as offence under Section 324 is compoundable with the leave of the court stating that they have amicably settled the dispute. Crll.M.A.8535/2009 is filed for permission to compound CRMC 2930/09 & CRRP 2600/09 3 the offence under Sub Section 8 of Section 320 of Code of Criminal Procedure with the injured, as second respondent in the application. Crl.M.C.2930/2009 is filed to quash the offence under Section 452 of Code of Criminal Procedure contending that in view of the settlement arrived at with PW1, conviction for the offence under Section 452 read with Section 149 of Indian Penal Code is to be quashed. 2. Second respondent has appeared in Crl.M.C.2930/2009 and submitted that in view of the settlement of the disputes second respondent has no objection for quashing the conviction and sentence for the offence under Section 452 of Indian Penal Code. Learned Public Prosecutor was heard. 3. As is clear from the judgment of the learned Assistant Sessions Judge, as well as the learned Additional Sessions Judge, petitioner was convicted only for the offences under Sections 452 and 324 of Indian Penal Code, with the aid of Section 149 of Indian Penal Code based on a finding that PW1 sustained hurt and the petitioner was present at the place of occurrence throughout encouraging the co- assailants to inflict injuries. An offence under CRMC 2930/09 & CRRP 2600/09 4 Section 324 of Indian Penal Code is compoundable with the leave of the court, by the injured. Crl.M.A.8534/2009 and 8535/2009 establish that entire disputes with the petitioner and second respondent, the injured was settled and they have compounded the offences. In such circumstances, permission is to be granted to the second respondent, the injured, to compound the offence under Section 324 read with Section 149 of Indian Penal Code. Though conviction was confirmed in appeal Sub section 8 of Section 320 of Code of Criminal Procedure enables the revisional court to permit compounding the offences. Conviction for the offence under Section 324 read with Section 149 of Indian Penal Code is permitted to be compounded and hence compounded. 4. Offence under Section 452 of Indian Penal Code is not compoundable. But when it is established that there was complete settlement of the disputes with petitioner and second respondent whose house was trespassed upon by the members of the unlawful assembly, based on which petitioner was convicted for the offence under Section 452 of Indian Penal Code, as held by the Apex court in Madan Mohan CRMC 2930/09 & CRRP 2600/09 5 Abbot v. State of Punjab (2008 (3) KLT 19 (SC), in the interest of justice when the offence is purely personal against the injured it is to be quashed. It is proved that all disputes with second respondent has been settled. In such circumstances, in the interest of justice the conviction for the offence under Section 452 of Indian Penal Code is to be quashed taking into consideration the settlement arrived at with second respondent, in view of the decision of the Apex court in Madan Mohan's case (supra). 5. Crl.M.C.2930/2009 is allowed. Conviction and sentence for the offence under Section 452 in S.C.153/1993 on the file of Principal Assistant Sessions Judge, Thalassery as confirmed by Sessions Judge, Thalassery in Crl.A.300/2003 is quashed. Crl.R.P.2600/2009 is allowed permitting the injured to compound the offence under Sections 324 and 149 of Indian Penal Code as sought for in Crl.M.A.8535/2009 and 8534/2009, as provided under Sub Section 8 of Section 320 of Indian Penal Code. M.SASIDHARAN NAMBIAR, JUDGE. uj.