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2016 DIGILAW 746 (KER)

Rajeevan v. State of Kerala

2016-08-31

P.D.RAJAN

body2016
ORDER : 1. This revision petition is filed by the accused against the judgment in Crl.A.62 of 2003 of Sessions Court, Kozhikode. They were charge sheeted by the Judicial First Class Magistrate II, Perambra under Section 448, 323, 324, 506(ii) read with 34 IPC. Both of them were convicted under the above section and sentenced to simple imprisonment for two months under Section 448 IPC, simple imprisonment for one month under Section 323 IPC, simple imprisonment for three months under Section 324 r/w 34 IPC. They were found not guilty and acquitted under Section 506(ii) IPC. Against that, they preferred Crl.A.62 of 2003 before Sessions Court, Kozhikode where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, they preferred this revision petition. 2. The charge against the accused is that on 1.7.1999 at 6 pm, the accused trespassed into the house of PW1 and A1 caused hurt to PW2 with a chopper. When A2 ward off the chopper, it hit on the head of PW1. A1 also caused hurt by beating with his hands, A2 inflicted injury to PW1 with a cycle chain and also caused hurt to PW3 by kicking and thereby committed the offence. Balussery police registered a crime and after completing investigation, SI, laid charge in the trial court. To prove the offence, prosecution examined PW1 to PW13 and marked Ext.P1 to P10. MO1 and MO2 were admitted as evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence. 3. When the matter came up for hearing, learned counsel appearing for revision petitioners submitted that they have settled the matter out of court and filed Crl.M.A.5450 of 2016 & 5449 of 2016. During pendency of this revision petition, the injured (PW4) died. Therefore the legal representatives are impleaded as additional respondents. PW1 to PW3 were the legal representatives of PW4. Hence Crl.M.A.5475 of 2016 is allowed. Leave granted. Revision petitioner and additional respondents submitted that they have settled the matter through the intervention of mediators and the legal representatives of the injured submitted that they have no further grievance. According to Section 320(4)(b) Cr. PW1 to PW3 were the legal representatives of PW4. Hence Crl.M.A.5475 of 2016 is allowed. Leave granted. Revision petitioner and additional respondents submitted that they have settled the matter through the intervention of mediators and the legal representatives of the injured submitted that they have no further grievance. According to Section 320(4)(b) Cr. P.C, when the person who is otherwise to compound the offence under the section dies, the legal representative as defined in the Code of Criminal Procedure, 1908 (5 of 1908) of such person may, with the consent of the court, compound such offence. 4. The question therefore in this case is whether there was valid composition under Section 320(4)(b) of the Code ?According to section 320(1) Cr. P.C, the offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that table. According to Section 320 (2) Cr. P.C, the offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that table. In Pritam Singh C State of Haryana & others (2006) 2 SCC (crl) 120), it was held that during the pendency of the present appeal, the complainant (Gurnam Singh) is reported to be dead. One of the sons (Janak Raj) of the deceased complainant is present in this Court. The parties state that in order to restore good relationship between them, they have compromised the matter. They request this Court that the offence be permitted to be compounded. In Dajiba Ramji Patil v. Emperor (1927 (28) Crl. L.J 581), it was held that any person may set the criminal law in motion, but it is only the person specified in S.345 (old act), who can compound the offence. In Chottalal v. Nathabhai (1900) 25 Bom.151, (2 Bom.LR 665) (FB) it was held that “It, therefore, follows that it is not necessarily the person who has filed a complaint that can compound the offence, but it is only the person mentioned in S.345(old Act) who can lawfully compound the offence”. In Chottalal v. Nathabhai (1900) 25 Bom.151, (2 Bom.LR 665) (FB) it was held that “It, therefore, follows that it is not necessarily the person who has filed a complaint that can compound the offence, but it is only the person mentioned in S.345(old Act) who can lawfully compound the offence”. In Marray v. The Queen Empress (1893) 21 Cal 103), it was held that where an accused person alleges that an offence with which he is charged has been compounded, the onus is on him to show that there is a real and valid composition with the person against whom the offence is committed. Therefore it is seen that an offence specified under Section 320 column 1 and 2 of the table can be compounded by the person specified in the third column of the table. It is immaterial whether such a person was a complainant or not or whether the case was instituted upon a police report or on a private complaint. It may be noted that after conviction of the accused the permission of the court is necessary, even in case of offence covered under Section (1). If the specified person referred to in column 3 is dead, sub-section 4(b) provides that the legal representatives of the deceased may compound the offence after obtaining permission of the court. In the light of the compromise between parties permission is granted for compounding the offence. Where hurt was caused to one person, the surviving legal representatives could lawfully compound the offence. When there is real and valid composition with the legal representatives, the order of acquittal is not invalid. 5. Offence under Section 448, 323 and 324 r/w 34 IPC are compoundable offences. When these offences are compoundable, and is compounded between the parties, it shall have the effect of acquittal of the accused under Section 320(8) Cr. P.C. In view of the composition, the conviction and sentence passed by the trial court under Section 323, 324 448 r/w 34 IPC are set aside. The accused are acquitted and set at liberty under Section 320(8) Cr. P.C. The revision petition is disposed of as above.