Crl. Appeal No.117 of 2006 & Crl. Rev.Pet. No.2552 of 2007

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938** **CRL.A.NO. 117 OF 2006 ( )** **--------------------------** **AGAINST THE JUDGMENT IN SC NO.171/2004 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC-I), KOZHIKODE DATED 12-01-2006 -----------------------** **APPELLANT(S)/ACCUSED:** **--------------------** **1. ANIL, S/O.RAGHAVAN, PALLIVALAPPIL, AZHIYOOR, KOZHIKODE DISTRICT.** **2. AJITH KUMAR, S/O.RAGHAVAN, PALLIVALAPPIL, AZHIYOOR, KOZHIKODE DISTRICT.** **3. NIXON, S/O.EASHOTTI, ERIKKINCHALIL, AZHIYOOR, KOZHIKODE DISTRICT.** **4. SURESH, S/O.SUBRAMANIAN, ERIKKINCHALIL, AZHIYOOR, KOZHIKODE DISTRICT.** **5. PRAMOD, S/O.RAMASWAMI, PUTHENVALAPPIL, AZHIYOOR, KOZHIKODE DISTRICT.** **6. PRADEEPAN, S/O.NARAYANAN, ERIKKINCHALIL, AZHIYOOR, KOZHIKODE DISTRICT.** - **BY ADVS.SRI.P.S.SREEDHARAN PILLAI SRI.C.S.SUNIL SMT.C.G.PREETHA SRI.M.PRAVEESH** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. D.CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-08-2016, ALONG WITH CRRP. No.2552/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **------------------------Crl. Appeal No.117 of 2006 & Crl. Rev.Pet. No.2552 of 2007 ---------------------------------Dated this the 23[rd] day of August, 2016** ## **J U D G M E N T / O R D E R** Criminal Appeal No.117 of 2006 is preferred by the accused against the judgment in S.C. No.171 of 2004 of the Additional Sessions Judge, Fast Track (Adhoc-I), Kozhikode. They were charge sheeted under Secs.143, 147, 148, 324, 341 and 307 read with Sec.149 IPC. The charge against the accused is that, on 27.01.2002 at 23.30 hours the accused, in furtherance of their common object, formed themselves into an unlawful assembly, armed with deadly weapons like iron rod, wrongfully restrained CW1 and CW2 (PW1 and PW3) while they were proceeding in a motor bike from Kunhipallithazham to Kunhippalli area. They beat on the left hand of PW1 and stabbed on the left side of abdomen of PW3 and made a cut injury on the left leg below the knee and all over the body and caused grievous injury to him and thereby the accused attempted to kill them. The Crl. Appeal No.117 of 2006 & Crl. Rev.Pet. No.2552 of 2007 2 appellants are the followers of RSS and the injured are the sympathizers of CPM. The injured persons were removed to Thalassery Co-operative Hospital. Nadapuram Police registered a crime and after completing investigation, Sub Inspector, laid charge in the trial court. 2. Crl. Rev.Pet. No.2552 of 2007 is filed by the accused in C.C. No.29 of 2003 against the order in Criminal M.P. No.5525 of 2006 of the Judicial First Class Magistrate Court, Vadakara. The above petition was filed under Sec.321 of the Cr.P.C. for withdrawing from the prosecution. Assistant Public Prosecutor, Judicial First Class Magistrate Court, Vadakara filed a petition that the Government has considered its case vide its order No.41473/13/06/Home dated 01.11.2006 and sanctioned to withdraw the above case. The case was a politically motivated case and the accused are prominent leaders of a political party. In order to preserve law and order situation in the locality withdrawal is necessary. The trial court gave notice to the defacto complainant and the accused. The defacto complainant filed a statement that he sustained serious injuries in the accident. The charge Crl. Appeal No.117 of 2006 & Crl. Rev.Pet. No.2552 of 2007 3 against the accused is that on 27.01.2002 at 19.30 hours, the accused wrongfully restrained the defacto complainant and thereby committed the offences punishable under Secs.341 and 324 read with Sec.34 of IPC. Prosecution examined PW1 to PW8 and marked Exts.P1 to P8. Incriminating circumstances brought out in evidence were denied by the accused while questioning them. They also examined DW1 and marked Ext. D1 as documentary evidence. After considering the rival contentions, the learned Magistrate dismissed the application on the ground that granting of consent to withdraw from prosecution is held to be causing injustice to the victim and the learned Assistant Public Prosecutor has not applied the mind in right perspective. Being aggrieved by that, they preferred Crl.R.P. No.2552 of 2007. 3. During hearing of the above Crl.R.P., the learned counsel appearing for the revision petitioners submitted that the 3[rd] revision petitioner sustained serious injuries in the connected case which is pending as Criminal Appeal No.117 of 2006 and he submitted that Crl. Appeal No.117 of 2006 & Crl. Rev.Pet. No.2552 of 2007 4 both cases are settled. In the light of the submission, I summoned the records in Criminal Appeal No.117 2006. Both parties are present. The learned counsel appearing for the revision petitioner contended that both parties have settled the matter out of court and seek permission to compound the offence. He also contended that no offence under Sec.307 IPC was committed, the trial court failed to appreciate that fact and convicted the accused also under Sec.307 IPC. The learned Public Prosecutor submitted that the offence under Sec.307 IPC is non compoundable and it is not possible to compound the offence. 4. According to Sec.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 Sec.320(6) Cr.P.C., a High Court or Court of Session acting in the exercise of its powers of revision under section 401 may allow any person to compound any offence which such person is competent to compound Crl. Appeal No.117 of 2006 & Crl. Rev.Pet. No.2552 of 2007 5 under this section. When the composition of offence under the section is made, it shall have the effect of an acquittal of the accused under Sec.320(8) Cr.P.C., with whom the offence has been compounded. The offences under Secs.341 and 324 are compoundable and the offences under Secs.143, 147, 148 and 307 read with Sec.149 IPC are non compoundable. 5. In the light of the above argument, I have examined whether any offence under Sec.307 IPC has been committed by the accused. I have perused the oral evidence of PW3, the medical evidence and Ext.P4 wound certificate of the injured Rajan. The oral evidence of PW3 shows that the appellants wrongfully restrained him and assaulted him with dangerous weapons. He also sustained injury with the attack of iron rod on the left hand as a result, he fell down from the motor bike they also attacked him with a knife and sword. The accused also attacked PW1. Analysing the evidence of PW1 and PW3, it is clear that the accused assaulted with dangerous weapons and they identified them. 6. The medical evidence shows that the injuries Crl. Appeal No.117 of 2006 & Crl. Rev.Pet. No.2552 of 2007 6 are not fatal. The doctor who treated PW1 was examined as PW4, his evidence shows that on 27.01.2002 at 11.30 a.m., he examined one PW1 and he noticed abrasion on the left forearm, abrasion on the back of left leg, abrasion and hematoma on right buttock. X-ray of the left forearm shows no bone injury. PW6 examined PW3 and issued Ext.P4 certificate. He deposed that on 28.01.2002 at 2.00 a.m., he examined PW3 and issued Ext.P4 certificate at Medical College Hospital, Kozhikode in which he noticed an obliquely placed 5x0.5 sized incised penetrating wound over the left flag, an incised wound over the lateral aspect of the left knee 8x1 c.m. exposing the knee joint, 3x.5x1 c.m. incised wound over the lateral aspect of left thigh, 5x1x1 c.m. incised wound over the lateral aspect of left leg, chest no abnormality detected, laprotomy done, 3c.m. long wound over peritoneal aspect, 1x3 c.m perforation. There was nerve injury and it was treated by an orthopedic surgeon. He was also shifted to the orthopedic ward on 05.02.2002. These injuries are sufficient to cause death of the patient. But the doctor never observed which injury is fatal and likely to cause Crl. Appeal No.117 of 2006 & Crl. Rev.Pet. No.2552 of 2007 7 death. 7. In an offence under Sec.307 IPC the intention referred under Sec.300 has to be established. It means intention to cause death. Secondly, the intention to cause bodily injury when the offender knows that it is likely to cause death. The intention to cause such bodily injury is sufficient in the ordinary course of the nature to cause death. Therefore, in order to attract the offence, the intention to cause death is the essence of the offence of attempt to murder. Intention is something which precede from the actual attempt or it has been provided independently by the act of the accused. If intention to commit murder is established, the ultimate result of attempt will be immaterial. If such intention is not proved, then the accused cannot be convicted under Sec.307 IPC. In **Sarju Prasad v. State of Bihar [AIR 1965 SC 843]** it was held that while accepting the proposition no injury need to be caused in order to sustain a conviction under Sec.307 IPC, but the prosecution lead no evidence from which it inferred that the accused had an intention to kill the victim or the Crl. Appeal No.117 of 2006 & Crl. Rev.Pet. No.2552 of 2007 8 requisite knowledge that the injuries caused by him are sufficient in the ordinary course of nature to cause death. In the circumstance, Supreme Court held that the offence will come under Sec.324 IPC alone. This view was followed by the Supreme Court in **State of Rajasthan v. Ani @ Hanif and others [AIR 1997 SC 1023]** and in another decision **Antony @ Appachan v. State of Kerala [AIR 1995 SC 2450]** . From the nature of injury, it is found that the accused committed an offence under Sec.324 IPC. Accordingly, conviction under Sec.307 IPC is set aside and the accused is convicted under Sec.324 IPC. 8. Sec.320 of the Code of Criminal Procedure reads as follows: **Compounding of offences** : (1) 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 Sec.320(2) Cr.P.C. the offences punishable under the sections of the Indian Penal Code (45 of 1860) specified Crl. Appeal No.117 of 2006 & Crl. Rev.Pet. No.2552 of 2007 9 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. According to Sec.320(8) the composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. According to 320(9) no offence shall be compounded except as provided by this section. 9. The offence under Secs.341 and 324 IPC are compoundable. Therefore this court can allow to compound the offence under Sec.324 IPC. But the offences under Sec.143, 147 and 148 are non compoundable. The appellants submitted that they paid Rs.5,00,000/- to the victim as compensation by way of demand drafts. Sri.K.K. Rajan, PW3 shall deposit the amount at State Bank of India, Vadakara branch for a period of 5 years, he is at liberty to withdraw the interest and shall produce the fixed deposit receipt for verification. A1 (Anil), A2 (Ajith Kumar), A3 (Nixon), A4 (Suresh), A5 (Pramod) and A6 (Pradeepan) had already Crl. Appeal No.117 of 2006 & Crl. Rev.Pet. No.2552 of 2007 10 undergone imprisonment for 25, 20, 34, 45, 34 and 45 days respectively. Apex Court in **Ram Pujan and others** **v. State of Uttar Pradesh [1973 (2) SCC 456]** discussed the impact of compromise in cases of non compoundable offences that it would meet the ends of justice if the sentence of imprisonment awarded to the appellant is reduced to the period already undergone and fine of Rs.1,000/- (Rupees thousand only) each under sections 143, 147 and 148 read with Sec.149 IPC, in default, imprisonment for three months. PW3 shall produce the fixed deposit receipt in the trial court. The revision petitioners are directed to pay the fine amount forthwith in the trial court. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS P.A. To Judge