IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 Crl.MC.No. 3135 of 2009() ----------------------------------- CRA.353/2001 of ADDL.SESSIONS COURT, KOTTAYAM CC.857/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHANGANACHERRY .................... PETITIONERS/ACCUSED ----------------------------------- 1. SURESH @ SURA, S/O.PADMANABHAN, CHANAKAPOIKAYIL HOUSE, KANGAZHA KARA, KANGAZHA VILLAGE. 2. DIVAKARAN, S/O.NEELAKANDAN ACHARI, IDAVETTAL HOUSE, KANGAZHA KARA, KANGAZHA VILLAGE. 3. PRASANNAKUMARAN @ RAJAPPAN, S/O.KESAVAN, THEKKIDAYIL, KANGAZHA KARA, KANGAZHA VILLAGE. 4. JAMES ANTONY @ JAMES, S/O.ANTONY, CHATHENPARA, KANGAZHA KARA, KANGAZHA VILLAGE. BY ADV. MR.K.GOPALAKRISHNA KURUP RESPONDENTS/STATE AND DEFACTO COMPLAINANT ------------------------------------------------------------------------------ 1. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JOSEPH CHACKO, S/O.JOSEPH, AGED 52 YEARS, POIKAKARAYIL HOUSE, IDAVETTAR BHAGOM, KANGAZHA, KOTTAYAM DISTRICT. R1 BY PUBLIC PROSECUTOR MR.AMJAD ALI. R2 BY ADV. MR.N.RAGHURAJ, SMT.K.AMMINIKUTTY. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/10/2009, ALONG WITH CRRP NO.1777 OF 2002, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.3135/2009 & Crl.R.P. 1777 OF 2002 =========================== Dated this the 5th day of October,2009 ORDER Petitioners were the accused in C.C.857/1996 on the file of Judicial First Class Magistrate Court,Changanacherry. Under Annexure -I judgment they were found guilty and convicted for the offence under sections 323, 324 and 326 read with section 34 of Indian Penal Code and were sentenced to rigorous imprisonment for one year and a fine of Rs.2000/- each for the offence under section 326 IPC. No separate sentence was awarded for the offence under sections 323 and 324 IPC. They challenged the conviction and sentence before the Additional Sessions Court, Kottayam in Crl.A.353/2001. Under Annexure 2 judgment confirming the conviction and sentence the appeal was dismissed. Crl.R.P. 1777/2002 is filed challenging the conviction and sentence. When the revision was pending, there was settlement of the disputes with the de facto complainant, who is the injured. Crl.M.A.9429/2009 is filed in the Crl.R.P for permission to compound the offences under sections 323 Crl.M.C.3135/09 & Crl.R.P.1777/2002 2 and 324 of Indian Penal Code as provided under section 320 (8) of Code of Criminal Procedure and Crl.M.A.9430/2009 is filed to compound the offence. As an offence under section 326 of IPC is not compoundable under section 320 of Code of Criminal Procedure and as it is not possible to compound the offence, petitioners filed Crl.M.C.3135/2009 under section 482 of Code of Criminal Procedure to quash the conviction and sentence for the offence under section 326 of Indian Penal Code based on the composition relying on the decision of the Apex Court in Madan Mohan Abbot v. State of Punjab (2008(3) KLT 19) and Manoj Sharma v. State (2008(4) KLT 417). The second respondent therein is the de facto complainant who is the injured. He appeared through a counsel. 2. Though the de facto complainant who is the injured is not a party to Crl.R.P.1777/2002, along with Crl.M.A.9429/2009 and Crl.M.A.9430/2009 the de facto complainant has filed a vakalath and also sought composition of the case along with the accused. 3. Crl.M.A.9429/2009 and 9430/2009 along with the submission of the learned counsel appearing for the de facto complainant, establish that there was a complete settlement of the dispute with the petitioners. In such circumstance, considering the fact that the major offence Crl.M.C.3135/09 & Crl.R.P.1777/2002 3 involved is section 326 IPC and that too by causing fracture on the leg, as held by the Apex Court in Madan Mohan Abbot's case (supra) and Manoj Sharma's case (supra) it is not in the interest of justice to sustain the conviction when the matter has been settled between the parties. Crl.M.C. 3135/2009 is allowed. Conviction and sentence of the accused in C.C.857/1996 as confirmed in Crl.A.353/2001 by Additional Sessions Court, Kottayam for the offence under section 326 IPC is quashed, based on the composition between the parties. Crl.R.P.1777/2002 is allowed granting permission to the injured de facto complainant and the petitioners, to compound the offence under section 323 and 324 of Indian Penal Code. Offences under section 323 and 324 are compounded. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006