Poulose v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **WEDNESDAY, THE 1ST DAY OF JUNE 2016/11TH JYAISHTA, 1938** ## **CRL.A.No. 2522 of 2009 (A)** ## **-----------------------------------------** ## **S.C.NO.486/2008 OF ADDITIONAL SESSIONS COURT, SPECIAL COURT (NDPS ACT CASES), THODUPUZHA** ## **---------------------------** ## **APPELLANT(S)/ACCUSED :** **-----------------------------------------** **POULOSE, S/O.KURIAKOSE, KALLARACKAL VEEDU, MUTHUVANKUDY KARA, KUNHITHANNI VILLAGE, IDUKKI.** ## **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT(S)/STATE :** **----------------------------------------** ## **1. STATE OF KERALA,** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.108 OF 2008 OF VELLATHOOVAL POLICE STATION.)** ## *** ADDITIONAL R2 IMPLEADED** ## **2. NANCY, AGED 39 YEARS, W/O.POULOSE, KALLARACKAL HOUSE, CHEMKULAM P.O. MUDUVANKUDY, IDUKKI DISTRICT.** - **ADDITIONAL R2 IS IMPLEADED AS PER ORDER DATED 01.06.2016 IN** **CRL.M.A.NO.3137 OF 2016.** ## **R1 BY PUBLIC PROSECUTOR SMT.HYMA R2 BY ADV. SRI.VINOD KUMAR.C** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **CRL.A.No. 2522 of 2009 (A)** **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE I: NOTARIZED AFFIDAVIT DATED 25.05.2016 SWORN BY THE 2ND RESPONDENT.** ## **RESPONDENT(S)' ANNEXURES :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE** Msd. ## **B. KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` Crl. Appeal No.2522 of 2009 ````````````````````````````````````````````````````````````` _Dated this the 1[st] day of June, 2016_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Appellant is the accused in SC No.486/2008 of the Additional Sessions Court/Special Court for NDPS Act Cases, Thodupuzha, who stands convicted for the offences under Sections 498A and 326 IPC. The court below has sentenced him to undergo rigorous imprisonment for two years and to pay a fine of ₹3,000/-, in default to undergo rigorous imprisonment for two more months under Section 498A IPC, and to undergo rigorous imprisonment for five years and to pay a fine of ₹20,000/-, in default to undergo rigorous imprisonment for six more months under Section 326 IPC. Crl.A.2522/2009 : 2 : 2. Initially, the final report was filed in the matter by alleging offences punishable under Sections 498A and 511 of 306 IPC. The court below has framed charges for the offences under Sections 498A and 116 of 306 IPC. Subsequently, the court below has altered the charge under Section 116 of 306 IPC to 326 IPC. 3. The additional 2[nd] respondent was given in marriage to the appellant on 05.05.1997. Two daughters were born in the wedlock. It is alleged that the appellant had treated the additional 2[nd] respondent with cruelty, tortured her, and harassed her mentally as well as physically. Consequently, she had no other go than to make an attempt to commit suicide. On 16.04.2008 at 8.30 p.m., the additional 2[nd] respondent allegedly poured kerosene on her dress and ignited it whereby she sustained 40% burns on her neck, chest, abdomen, hands and legs. She was hospitalised. She was under treatment as inpatient till 03.05.2008. Crl.A.2522/2009 : 3 : 4. The court below was sticking on to the facts detailed above in the case. Even then, the court below has gone to the extent of altering the charge under Section 116 of 306 IPC to one under Section 326 IPC, on the ground that fire, water, gas, etc. also can be treated as dangerous weapons. According to the court below, the injuries sustained by the additional 2[nd] respondent will squarely fall under the category of Section 320 _Eighthly_ and, therefore, it is a grievous hurt. 5. On the side of the prosecution, PWs 1 to 12 were examined. Exts.P1 to P8 were marked and MOs 1 to 3 were identified. On the side of the accused, a contradiction in the statement of CW2 under Section 161 Cr.P.C. is marked as Ext.D1. The appellant was examined under Section 313 Cr.P.C. No defence evidence was adduced. The court below found the appellant guilty of the offences under Sections 498A and 326 IPC, convicted him thereunder and sentenced him as aforesaid. Crl.A.2522/2009 : 4 : 6. Heard learned counsel for the appellant, learned counsel for the additional 2[nd] respondent and learned Public Prosecutor. 7. The learned counsel for the appellant and learned counsel for the additional 2[nd] respondent have pointed out that presently the additional 2[nd] respondent is happily residing with the appellant along with their daughters. The elder daughter is about to be given in marriage. Presently, there are no disputes between the parties. Both the learned counsel for the appellant and the learned Public Prosecutor have pointed out that at any stretch of imagination, an offence under Section 326 IPC will not lie in the matter. The appellant has filed Crl.M.A. No.3138/2016 in order to get the conviction and sentence passed by the court below, quashed. Annexure-I affidavit sworn in by the additional 2[nd] respondent has also been produced. According to the additional 2[nd] respondent, during the pendency of this appeal, the disputes between Crl.A.2522/2009 : 5 : the appellant and the additional 2[nd] respondent have been amicably settled and solved and they are residing together as husband and wife. She has affirmed that hey are leading a peaceful matrimonial life and residing happily with their daughters. The additional 2[nd] respondent has also prayed for getting the conviction and sentence against the appellant, quashed. 8. True that the hurt sustained by the additional 2[nd] respondent will squarely fall within the ambit of Section 320 _Eighthly_ IPC. It is true that fire can also be treated as means by which grievous hurt can be inflicted within the meaning of Section 326 IPC. At the same time, the accused must have made use of such means to inflict grievous hurt. Then only, he can be said to have committed the offence under Section 326 IPC. Here, in this particular case, there is no allegation that the appellant ignited the additional 2[nd] respondent. There is no allegation that he poured kerosene over her body. There is no allegation that he has made use Crl.A.2522/2009 : 6 : of any means to inflict grievous hurt on the additional 2[nd] respondent. The only allegation is that he wanted to get the additional 2[nd] respondent avoided. Allegations are also there to the effect that he had directed her to commit suicide. 9. From all the above, it is evident that the conviction and sentence passed by the court below on the appellant for the offence under Section 326 IPC are _per se_ illegal and, therefore, the same are liable to be set aside. In order to invite an offence under Section 306 IPC, it is a prerequisite that the victim should have committed suicide. If suicidal death is not there, there is no application of the provision under Section 306 IPC. If abetment in this particular case is alleged, it can only be abetment of an abetment. It cannot be an abetment of an abetment also because of the fact that death has not occurred. 10. When the conviction and sentence passed by the court below for the offence under Section 326 IPC are illegal Crl.A.2522/2009 : 7 : and the same are liable to be set aside, what remains is the conviction and sentence under Section 498A IPC. 11. When the parties have reunited and they are leading a happy matrimonial life, and looking after their daughters, it is only just and proper in the interest of justice to quash the conviction and sentence passed by the court below for the offence under Section 498A IPC. It is true that there are very serious allegations against the appellant. It is further true that those allegations are not at all justifiable also. Therefore, this Court has called the appellant as well as the 2[nd] respondent to this Court. They have appeared. Even from the body language of the additional 2[nd] respondent, it is evident that she is leading a happy life with the appellant. She has stated that the appellant has stopped drinking and presently, he is not an alcoholic. It has been further stated that presently she is not being harassed, tortured or threatened. The appellant also submitted that he has not been presently consuming liquor. When the matter Crl.A.2522/2009 : 8 : has been amicably settled between the parties and they are residing together happily, going by the decision in _**B.S.Joshy v. State of Haryana** [(2003) 4 SCC 675],_ it is not in the interest of justice to continue the prosecution. In _**Biju Eappen v. State of Kerala** [2010 (1) KLT 289]_ and _**Bijukumar v. State of Kerala and Another** [2013 (2) KHC 569]_ , this Court has held that in appropriate cases of this nature, the conviction and sentence for the offence under Section 498A IPC can be quashed. 12. When matters have been amicably settled between the parties and they have resumed their marital life, it is in the interest of justice to quash the conviction and sentence on the appellant for the offence under Section 498A IPC. Matters being so, Crl.M.A. No.3138/2016 can be allowed and the conviction and sentence passed by the court below on the appellant under Section 498A IPC can be quashed. In the result, this Criminal Appeal is allowed in part and Crl.A.2522/2009 : 9 : the conviction and sentence passed by the court below for the offence under Section 326 IPC are set aside. Crl.M.A. No.3138/2016 is allowed and the conviction and sentence passed by the court below for the offence under Section 498A IPC are quashed. When the conviction and sentence passed for the offence under Section 498A IPC are quashed, the latter part of the appeal has become infructuous. The appellant stands acquitted. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/01/06 _// True Copy //_ _PA to Judge_