Allowed

Rajan v. State of Kerala

Kerala HC19 Mar 2013CRL.A/917/2005

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for offences under Sections 143, 147, 148, 452, 324, and 427 IPC, the Court upheld the quashing of proceedings based on an out-of-court settlement between the accused and the injured party, deeming it contrary to the interest of justice to continue strict prosecution despite non-compoundable charges.

What did the court decide?

Judgment of 31/05/2005 set aside; appellants acquitted; bail bond cancelled and they set at liberty.

Rajan Vs State of Kerala — Quashing and FIR | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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TUESDAY, THE 19TH DAY OF MARCH 2013/28TH PHALGUNA 1934

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CRL.A.No. 917 of 2005 (F)

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AGAINST THE ORDER/JUDGMENT IN SC.245/2004 of ADDL.SESSIONS COURT (ADHOC)-II, THODUPUZHA DATED 31-05-2005

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AGAINST THE ORDER/JUDGMENT IN CP.18/2003 of J.M.F.C.,ADIMALI

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APPELLANTS : ACCUSED :

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RAJAN, S/O.SANKARAN PILLAI,

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KAKKANADU HOUSE, KANDIYAMPARA BHAGAM, KALLAR KARA, PALLIVASAL VILLAGE.

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ASOKAN, S/O.SANKARAN PILLAI,

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KAKKANADU HOUSE, KANDIYAMPARA BHAGAM, KALLAR KARA, PALLIVASAL VILLAGE.

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SANIL KUMAR, S/O. SANKARAN PILLAI, KAKKANADU HOUSE, KANDIYAMPARA BHAGAM, KALLAR KARA, PALLIVASAL VILLAGE.

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SIBY, S/O.PADMANABHA PILLAI, VAIAMBOORU, KUNCHITHANNY, DESIYA VAYANASALA, PALLIVASAL VILLAGE.

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BHASKARA PILLAI, S/O.NARAYANA PILLAI, CHERKKOTTU VEEDU, CHANGANACORY, KADA BHAGOM, BAISONVALLEY KARA, BAISONVALLEY VILLAGE.

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BY ADV. SRI.N.MURALEEDHARAN

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CRL.A.No. 917 of 2005 (F)

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RESPONDENTS:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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ADDL. 2nd RESPONDENT : VENUGOPAL, S/O.RAMAKRISHNA PILLA, KAKKANADU HOUSE, BAISON VALLEY, P.O.BAISON VALLEY VILLAGE, IDUKKI, NOW RESIDING AT LEKSHMY NIVAS, NORTH FORT GATE, TRIPUNITHURA.

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(ADDL.R2 IMPLEADED AS PER ORDER DATED 19/03/2013 IN CRL.M.A.No.2206/2013)

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R1 BY PUBLIC PROSECUTOR SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.917 of 2005

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Dated this the 19^th day of March, 2013

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JUDGMENT

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The appellants are accused Nos.1 to 5, who faced prosecution for the charges, for the alleged commission of offences punishable under Sections 143, 147, 148, 452, 308, 324 and 427 read with Section 149 of I.P.C.

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The prosecution allegation is that, on 20/03/2003 between 1 & 2 a.m. the accused trespassed into the house of PW.1, one Venugopal and caused injury to him by hitting with stone, beating with iron rods and cutting with sword and they also beat and kicked him. When PW.2, who is no more, intervened, the accused beat her with iron rods and the accused destroyed the household utensil and also caused loss of `10,000/- which was kept in an almirah in the room of PW.1. According to the prosecution, the accused by their act attempted to cause the death of PW.1 and thereby committed the said offences. When PW.1 was taken to Community Health

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Crl.A.No.917 of 2005

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Centre at Adimaly for treatment, on getting information police arrived in the hospital and recorded the F.I. Statement of PW.1, based upon which Crime No.68 of 2003 was registered in the Rajakkadu Police Station for the said offences and on completing investigation a report was filed. When PW.1 was admitted in the hospital, he was treated by PW.5 who issued Ext.P4 wound certificate. The trial court finally by its judgment dated 31/05/2005 in S.C.No.245 of 2004 has found that the accused five in numbers had only intention to manhandle PW.1 and hence only offences disclosed against the accused are under Sections 143, 147, 148, 452, 427 and 324 of I.P.C.

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The accused are found not guilty with respect to the other charge particularly for the offence under Section 308 of I.P.C. and according to the learned Judge, the same offence is not attracted.

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The learned counsel appearing for the appellant after inviting my attention to paragraphs 15 and 16 of the trial court judgment submitted that, even as per Ext.P4,

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Crl.A.No.917 of 2005

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wound certificate, the injuries noted by PW.5 are only contusion injury of 10 c.m. length and 5 c.m. breadth back of the left side chest and abrasion injury on the right side of chest. So, according to the learned counsel, the above injuries noted by PW.5 in Ext.P4 were not considered by the learned Judge, according to its seriousness and implication. If gone by the said facts, PW.1 has to be disbelieved. According to the learned counsel, in order to reject the above contention, the learned Judge placed much reliance upon the body mahazar prepared by PW.7 as per Ext.P1(a) body mahazar. So, according to the learned counsel for the appellant, in support of the finding of the court below, to convict the accused for the said offences, the only evidence available is that of the body mahazar prepared by PW.7 and as such there is no medical evidence. So, according to the learned counsel, the entire prosecution case is liable to be rejected, since there is no reliable and acceptable evidence.

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Crl.A.No.917 of 2005

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In the alternative, the learned counsel for the appellant submitted that, during the pendency of the above appeal, the dispute between the accused and the injured are settled out of court and accordingly they have filed a joint compromise petition under Section 320(b) of Cr.P.C. and 482 of Cr.P.C. in which it is prayed that this Court be pleased to quash all the criminal proceedings in Crime No.68 of 2003 of Rajakkadu Police Station including the order of conviction and sentence in S.C.No.245 of 2004 of the Additional Sessions Judge (Ad hoc)-II, Thodupuzha and closed Crl.A.No.917 of 2005 pending before this Court allowing Criminal Miscellaneous Application.

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When the above petition came up for consideration before this Court on 15/03/2013, this Court directed the appellant to take steps to implead PW.1 the injured and consequently Crl.M.Appln.No.2206 of 2013 was filed and after hearing Adv.Sri.N.A.Muraleedharan, the learned counsel for the appellant/petitioner and

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Crl.A.No.917 of 2005

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Adv.Sri.B.Vinod, the learned counsel appearing for PW.1 sought to be impleaded and the learned Public Prosecutor, today by a separate order I have allowed the petition.

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Thus, I have heard the appeal in the above backdrops of the case including the fact and the recent developments about the settlement.

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The learned counsel for the appellant, besides pointing out the defect in the prosecution case, has submitted that, as the matter has been settled out of court, the interest of justice demands by allowing the petition filed under Section 482 of Cr.P.C. in view of the settlement arrived, this appeal can be disposed of setting aside the judgment in question especially in the light of the judgment of the Hon'ble Apex Court in Gian Singh Vs. State of Punjab [2012 (4) KLT Page 108(SC)], Biju Eappen Vs. State of Kerala [2010 (1) KLT 289] and Thankamma Vs. State of Kerala [ 2006 (3) KLT 846]. The learned counsel appearing for the additional second

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Crl.A.No.917 of 2005

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respondent has also submitted that, since the matter is settled out of court, PW.1 has no grievance against the accused and they are not interested in prosecuting against the appellant and allowing the petition, this appeal can be disposed of as sought for in the petition.

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On the other hand, the learned Public Prosecutor strenuously opposing the prayer submitted that one of the injured namely PW.2, who is the mother of PW.1, is no more and therefore, the settlement arrived now between the accused and PW.1 cannot be treated as a complete and perfect settlement and it is also pointed out that since the offences included are noncompoundable, the above petition cannot be allowed. It is also the contention of the learned Public Prosecutor that, all the decisions cited and relied on by the learned counsel for the appellant are with respect to the offence where much public interest are involved. Therefore, this appeal cannot be disposed of as prayed for.

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Crl.A.No.917 of 2005

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I have carefully considered all the arguments advanced by the learned counsel for the appellant and the additional second respondent as well as the learned Public Prosecutor for the State.

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The alleged incident took place on 20/03/2003 and as per the prosecution case it was occurred in the house of PW.1. It is beyond dispute that the father of accused A1 to A3 and the father of PW.1 are direct brothers. A4 is the son of mother's sister of A1 to A3 and A5 is the cousin brother of PW.1. Therefore, it can be seen that the parties to the dispute and the alleged incident are close relatives and the incident allegedly took place between 1 and 2 a.m. on 20/03/2003 in the house of PW.1 and it was not an incident that took place in the presence of the general public. As per medical evidence, consisting of Ext.P4, wound certificate and deposition of PW.5, the injuries sustained by PW.1 are only abrasion and contusion. Though there was a charge for the offence under Section 308 of I.P.C., the trial court

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Crl.A.No.917 of 2005

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finally found that no offence under Section 308 of I.P.C. is attracted against the accused and the trial court convicted the appellants for the offences, which I mentioned earlier, against which the present appeal is filed. According to me, the contentions advanced and the grounds urged by the learned Public Prosecutor against the composition of the offence, according to me, in the present case for the aforesaid facts are not relevant and applicable. Moreover, the Hon'ble Apex Court in the decision Gian Singh Vs. State of Punjab [2012 (4) KLT Page 108(SC)], has categorically held “In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the

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Crl.A.No.917 of 2005

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High Court shall be well within its jurisdiction to quash the criminal proceeding.” In the present case, as I indicated earlier, the parties to the dispute and the incident both the accused and the injured are close relatives and the incident took place during the year 2003 and irrespective of the findings, and its merits and demerits that contained in the judgments of the trial court, during the pendency of this appeal in this Court, PW.1 the injured came forwarded with a joined petition along with the accused to compound the offence and to put an end for the entire criminal proceedings, since the matter is settled out of court and as he is compensated. If that be so, according to me, this Court, while rendering Criminal justice is duty- bound to promote the settlement arrived between the parties without resorting to the hyper technical grounds, especially when much public interest are involved. According to me, in the aforesaid backdrops of the case and especially in the light of the decision of the Hon'ble Apex Court cited supra, approving

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Crl.A.No.917 of 2005

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the settlement arrived between the parties out of court, this appeal can be disposed of particularly in the light of the decision of this Court in Biju Eappen Vs. State of Kerala [ 2010 (1)KLT 289].

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In the result, this appeal is allowed setting aside the judgment dated 31/05/2005 in S.C.No.245 of 2004 of the court of the Additional Sessions Judge (Adhoc)-II, Thodupuzha and the appellants/accused are acquitted of all the charges levelled against them and the bail bond, if any, executed by the appellants stands cancelled and they are set at liberty.

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V.K.MOHANAN, JUDGE

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skj

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True copy

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P.A. to Judge

Rajan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rajan v. State of Kerala

Case brief

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What did the court decide?

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