CRL.M.C. NO.5364 OF 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** ## **THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944** ## **CRL.M.C. NO.5364 OF 2022** **S.C.NO.251 OF 2021 ON THE FILE OF THE ADDITIONAL SESSIONS COURT-III, PATHANAMTATHITTA.** **PETITIONERS/ACCUSED NOS.1 TO 3:** - **1 GOPALAKRISHNAN, AGED 66 YEARS, S/O RAMAN, EEZHAVAMADHOM VEEDU,** **NARANGANAM VILLAGE, PATHANAMTHITTA, PIN - 689641** - **2 RAJAMMA GOPAL, AGED 64 YEARS, W/O GOPALAKRISHNAN, EEZHAVAMADHOM VEEDU, NARANGANAM VILLAGE, PATHANAMTHITTA, PIN - 689641** - **3 XXX XXX** **BY ADVS. M.T.SURESHKUMAR** **R.RANJITH,SC,KOOVAPPADY GRAMA PANCHAYAT SMITHA PHILIPOSE P.R.JAYASANKAR DARSAN SOMANATH MANJUSHA K. SREELAKSHMI SABU** ## **RESPONDENTS/STATE/DE FACTO COMPLAINANT/INJURED WITNESS:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031** - **2 P.D. PRASAD, AGED 66 YEARS, S/O DIVAKARAN,** **POOVAKKATTIL HOUSE, MUTTATHUKONAM, CHENNEERKARA VILLAGE, PATHANAMTHITTA, PIN–689 625.** -2- ## **CRL.M.C. NO.5364 OF 2022** **3 VISWESARAN, AGED 68 YEARS, S/O DIVAKARAN, POOVAKKATTIL HOUSE, MUTTATHUKONAM, CHENNEERKARA VILLAGE PATHANAMTHITTA, PIN - 689625** **4 PRABHA, AGED 64 YEARS, W/O VISWESARAN, POOVAKKATTIL HOUSE, MUTTATHUKONAM, CHENNEERKARA VILLAGE, PATHANAMTHITTA, PIN - 689625** **5 THANKAMMA, AGED 87 YEARS, W/O DIVAKARA PANICKER, KINATTUVILAIL (PRABHA SADANAM), MUTTATHUKONAM, CHENNEERKARA VILLAGE, PATHANAMTHITTA, PIN - 689625** ## **R2-R5 SRI. N. BIJA KRISHNA NARAYAN** **R1 SRI. P.G. MANU, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** -3- **CRL.M.C. NO.5364 OF 2022** ## **ORDER** This Crl.M.C. has been filed to quash all further proceedings in S.C. No.251 of 2021 on the file of Additional Sessions Court-III, Pathanamthitta. 2. The petitioners are the accused Nos.1 and 2. It is reported that altogether, there are three accused. The 3[rd] accused is a Juvenile. Hence, final report has been laid before the court below only against the accused Nos.1 and 2. The offences alleged are punishable under Sections 307, 323 read with Section 34 of the Indian Penal Code. 3. The accused and the injured are closely related. The 3[rd] accused is the de facto complainant’s brother’s wife’s brother. The accused Nos.1 and 2 are the grandparents of the 3[rd] accused. The house of the de facto complainant, the house of the 5[th] respondent and the house of the 3[rd] respondent are situated nearby. The alleged incident was taken place on 13.12.2018 at about 10.30 p.m. at the sit out of the house of the 5[th] respondent. It is alleged that the 1[st] petitioner called the 2[nd] and 3[rd] respondents to -4- ## **CRL.M.C. NO.5364 OF 2022** the house of the 5[th] respondent and when they reached there, the petitioners and the 3[rd] accused, who were there in the house of the 5[th] respondent, assaulted 3[rd] and 4[th] respondents and when the 2[nd] respondent intervened, the 1[st] petitioner stabbed on his abdomen with an intention to kill, causing serious injury and thereby committed the offence. 4. The Crl.M.C. has been filed to quash the proceedings on the ground of settlement between the parties. The respondents 2 to 5 have entered appearance through counsel and they have sworn in separate affidavits. 5. I have heard Sri. M.T. Sureshkumar, the learned counsel for the petitioners, Sri. N. Bija Krishna, the learned counsel for respondents 2 to 5 and Sri.P.G. Manu, the learned Senior Public Prosecutor. 6. The averments in the petition as well as the affidavit sworn in by the respondents 2 to 5 would show that the entire disputes between the parties have been amicably settled and respondents 2 to 5 had decided not to -5- ## **CRL.M.C. NO.5364 OF 2022** proceed with the criminal proceedings further. The learned Prosecutor, on instruction, also submits that the matter was enquired into through the investigating officer and a statement of the _de facto_ complainant was also recorded wherein he reported that the matter was amicably settled. 7. The Apex Court in _**Gian Singh v. State of Punjab**_ [2012 (4) KLT 108 (SC)], _**Narinder Singh and Others v. State of Punjab and Others**_ [(2014) 6 SCC 466] and in _**State of Madhya Pradesh v. Laxmi Narayan and Others**_ [(2019) 5 SCC 688] has held that the High Court by invoking Section 482 of Cr.P.C can quash the criminal proceedings in relation to non compoundable offence where the parties have settled the matter between themselves notwithstanding the bar under Section 320 of Cr.P.C. if it is warranted in the given facts and circumstances of the case or to ensure the ends of justice or to prevent abuse of process of any Court. However, it has been made clear that the criminal cases involving heinous and serious offences of mental depravity or -6- ## **CRL.M.C. NO.5364 OF 2022** offences like murder, rape, dacoity, etc. which have a serious impact on the society cannot be quashed in exercise of the power under Section 482 of Cr.P.C. In _**Laxmi Narayan and Others**_ (supra), in paragraph 15(4), it has been specifically stated that the offence under Section 307 of IPC would fall within the category of heinous and serious offences, and therefore, are to be treated as crime against the society and not against the individual alone and therefore, the criminal proceedings for the offence under Section 307 cannot be quashed in exercise of the power under Section 482 of Cr.P.C. on the ground that the parties have resolved their entire dispute amongst themselves. However, it has been further held that the High Court would not rest its decision merely because there is a mention of Section 307 of IPC in FIR or the charge is framed under that provision. It is clarified that it would be open to the High Court to examine as to whether incorporation of Section 307 of IPC is there for the sake of it or the prosecution has collected sufficient evidence, -7- ## **CRL.M.C. NO.5364 OF 2022** which if proved, would lead to framing the charge under Section 307 of IPC. It has further clarified that for this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. 8. I went through the FI Statement, the statement of the witnesses recorded during investigation under Section 161 of Cr.P.C., the wound certificate as well as the entire materials collected during investigation. True, the injuries are on the vital part of the body and the weapon used is also a dangerous weapon, which is a knife. However, the offence under Section 307 can at best be said to be attributed prima facie against the 1[st] accused only. It was the 1[st] accused who allegedly stabbed the de facto complainant on his abdomen. The overt act alleged against the 2[nd] petitioner is that she only beat the de facto complainant as well as CW1, 2[nd] respondent and the 3[rd] respondent with her hand. There is absolutely no allegation -8- ## **CRL.M.C. NO.5364 OF 2022** against the 2[nd] petitioner that any weapon has been used. There is no allegation against the 3[rd] accused also that he has used any weapon. Therefore, there is no question of attracting Section 307 of IPC as against the 2[nd] petitioner or the 3[rd] accused. 9. A person can be said to commit an offence under Section 307 of IPC when he has intention to commit murder and in execution of that intention does an act towards its commission, irrespective of the fact whether that is penultimate act or not. The court has to see the intention behind the act to come to the conclusion whether an offence under Section 307 of IPC is attracted or not. It is settled that to bring a case under Section 307 of IPC, the prosecution has to make out the facts and circumstances envisaged by Section 300 of IPC. If the ingredients of Section 300 of IPC are wholly lacking, there is no question of attracting Section 307 of IPC. The act committed by the accused must be an act capable of causing death in the natural and ordinary course of nature; and if the act -9- ## **CRL.M.C. NO.5364 OF 2022** complained of is not that description, the offence under Section 307 of IPC cannot be attracted. 10. Coming to the facts of the case, it is true that the injuries are on the abdomen, the vital part of the body. It is also true that the wound certificate would show that the abdominal fat pad of the de facto complainant was precluded and there was a penetrating stab injury of dimensions 3x1 cm over anterior abdominal wall 8 cm above umbilicus in umbilical-epigastric region. But the crucial question is, from the materials on record it could be gathered whether the 1[st] petitioner had definite intention to cause death of the de facto complainant. As stated already, the parties are close relatives. The statement of the de facto complainant as well as the remaining respondents would show that initially, there was some altercations between the petitioners and the respondents 3 and 4 and the petitioners beat them. During the altercations, the 1[st] petitioner asked the 3[rd] petitioner to get a knife and the 3[rd] petitioner brought a knife to the 1[st] petitioner who used the -10- ## **CRL.M.C. NO.5364 OF 2022** knife and stabbed the 3[rd] respondent but he evaded it. At that juncture, the de facto complainant and the 2[nd] respondent came to the spot and the 1[st] petitioner stabbed the de facto complainant with the very same knife. So, it is a case where the de facto complainant who sustained stab injury was not at all in the scene of occurrence. He came to the spot during altercation between the 1[st] petitioner and the respondents 2 and 3 and thereafter, the 1[st] petitioner stabbed the de facto complainant. So, it cannot be said that there was a requisite intention on the part of the 1[st] petitioner to cause death of the de facto complainant. It cannot be said that the act of the 1[st] petitioner was a pre determined one. There are no other supporting materials to show that the 1[st] petitioner had any intention to cause death of the de facto complainant. Therefore, I am of the view that the offence under Section 307 of IPC is not attracted. However, the materials on record would clearly show that the offence under Section 308 of IPC is attracted against the 1[st] petitioner. The offence under Section 308 of -11- ## **CRL.M.C. NO.5364 OF 2022** IPC is not included in the category of heinous and serious offence in none of the decisions of the Apex Court cited above. That apart, the petitioners do not have any criminal antecedents and the dispute between the parties is purely personal in nature. 11. For the reasons stated above, I am of the view that no purpose will be served in proceeding with the matter any further. Accordingly, all further proceedings in S.C. No.251 of 2021 on the file of Additional Sessions Court-III, Pathanamthitta against the petitioners hereby stand quashed. The Crl.M.C. is allowed as above. Sd/- **DR. KAUSER EDAPPAGATH JUDGE** bpr -12- ## **CRL.M.C. NO.5364 OF 2022** ## **APPENDIX** ## **PETITIONER'S ANNEXURES** ## **Annexure 1** **CERTIFIED COPY OF FIR IN CRIME NO.2861 OF 2018 OF PATHANAMTHITTA POLICE STATION DATED 14.12.2018.** - **Annexure 2** - **CERTIFIED COPY OF FINAL REPORT IN S.C.NO.251 OF 2021 ON THE FILE OF THE ADDITIONAL SESSIONS COURT-III, PATHANAMTATHITTA DATED 14.05.2019.** - **Annexure 3** - **A TRUE COPY OF THE AFFIDAVIT DATED 30.07.2022, DULY SIGNED BY THE 2ND RESPONDENT IN THE CRL.M.C.** - **Annexure 4 A TRUE COPY OF THE AFFIDAVIT DATED 30.07.2022, DULY SIGNED BY THE 3RD RESPONDENT IN THE CRL.M.C.** - **Annexure 5 A TRUE COPY OF THE AFFIDAVIT DATED 30.07.2022, DULY SIGNED BY THE 4TH RESPONDENT IN THE CRL.M.C.** - **Annexure 6 A TRUE COPY OF THE AFFIDAVIT DATED 30.07.2022, DULY SIGNED BY THE 5TH RESPONDENT IN THE CRL.M.C.**