V.C. Thomas and Others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE B.P.RAY** ## **TUESDAY, THE 18TH DAY OF FEBRUARY 2014/29TH MAGHA, 1935** ## **CRL.A.No. 804 of 2011** ## **-------------------------------** ## **AGAINST THE JUDGMENT IN SC 290/2009 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM** **--------** ## **APPELLANT(S)/ACCUSED:** **--------------------------------------** **1. V.C.THOMAS, S/O.LATE CHACKO, VADAKKECHIRAYATH HOUSE, MELAMPRA.P.O, THALAPPALAM VILLAGE, MEENACHIL TALUK.** **2. SHAJI THOMAS, S/O.THOMAS, MANNOOCHERILAYA MANNAMPARAMBIL HOUSE, KADAPPATTOOR KARA, PALA.** **3. JOJO XAVIER,S/O.XAVIER,KANNAMPUZHA HOUSE LALAM KARA, LALAM VILLAGE, PALA.** **4. VINCENT, S/O.PHILIPPOSE, ARACKAL HOUSE, MELAMPRA KARA, THALAPPALAM VILLAGE.** **5. BABU JOSEPH, S/O.JOSEPH, MECHILLATHU HOUSE, PONNATTU KARA, PARUMALAKKUNNU COLONY, LALAM VILLAGE.** **6. SUNNY JOSEPH, S/O.JOSEPH, PUTHUVELLITHARAYIL HOUSE, PARUMALAKKUNNU COLONY, PONNATTU KARA, LALAM VILLAGE.** **7. SIJO @ VAANTROO,,S/O.JOSE,,CHAMAKKALAYIL HOUSE, PADINJATTIN KARA, PULIYANNOOR VILLAGE.** **8. LIBIN,S/O.SUNNY, PARATHOTTU HOUSE, VALLICHIRA KARA, THAMARAKKULAM BHAGOM, VALLICHIRA VILLAGE.** **9. ANIL KUMAR,,S/O.KARUNAKARAN, VADAKKUMPARAMBIL HOUSE, KIZHATHADIYOOR KARA, LALAM VILLAGE.** **10. BABU VARGHESE @ BABUKKUTTY, S/O.VARGHESE, VALLIATTU HOUSE, PONNATTUKARA, LALAM VILLAGE.** **PJ** **....2/-** **..2..** ## **CRL.A.No. 804 of 2011** ## **-------------------------------** ## **11. ROY, S/O.GOWRI, PALAMATTATHIL HOUSE, PARUMALAKKUNNU COLONY, PONNATTU KARA, LALAM VILLAGE.** ## **12. BINEESH, S/O.VISWANATHAN, MULAMTHANATHU HOUSE, PONNATTU KARA, LALAM VILLAGE.** **BY ADVS.SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN** ## **RESPONDENT(S)/COMPLAINANT:** **------------------------------------------------** ## **1. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** *** ADDL.R2 IMPLEADED** **2. ACHAMMA THOMAS, W/O.V.C.THOMAS,** - **AGED 61 YEARS, V ADAKKECHIRAYATH HOUSE, MALAMPARA P.O., THALAPPALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.** **IS IMPLEADED AS ADDL.2ND RESPONDENT VIDE ORDER DATED 13/2/2013 IN CRL.MA.1111/2013 IN CRL.A.804/2011** **R1 BY PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBUKAN R2 BY ADVS. SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.S.MANU SMT.K.DEEPA (PAYYANUR)** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **B.P. Ray, J.** ==================================== Crl.A.No.804/2011 ==================================== Dated this the 18[th] day of February, 2013. ## **JUDGMENT** 1.Heard the learned counsel for the petitioners, learned senior counsel Sri.K.Gopalakrishna Kurup for the second respondent and learned Public Prosecutor. 2.This appeal is directed against the judment of Additional Sessions Judge (Ad-hoc-I), Kottayam in S.C.No.290/2009. By the impugned judgment, the trial court found the appellants guilty under Sections 450, 395, 367 and 323 read with Section 34 I.P.C. and convicted them accordingly. Appellants 1 to 12 were sentenced to undergo rigorous imprisonment for five years and a fine of Rs.5,000/- each under Section 395 I.P.C. , rigorous imprisonment for five years and a fine of Rs.5,000/- each under Section 367 I.P.C. and rigorous imprisonment for three years and Crl.A.No.804/2011 -:2:- a fine of Rs.5,000/- each under Section 450 I.P.C. and imprisonment for a period of three months for the offence under Section 323 I.P.C. 3.The prosecution case is that the first accused and P.W.1 who are husband and wife and were residing together along with the mother of P.W.1, i.e. C.W.2 at Thalapalam in House No.TPIV/339. The first accused had decided to sell the house and property, ignoring the objections of C.Ws.1 and 2 as they have no other house, and first accused, in furtherance of the above intention, engaged accused 2 and 3 as brokers for sale of the property and on 31.8.2007, the first accused sold the house and property where C.W.s.1 and 2 were residing, to the fourth accused for an amount of Rupees fifty one lakh and since C.Ws.1 and 2 refused to move out of the house after the sale, accused Nos.1 to 4 had engaged accused Nos.5 to 12 for forcefully evicting C.Ws.1 and 2 for a sum of Rs.15,000/- to be Crl.A.No.804/2011 -:3:- paid to accused Nos.5 to 12 and in furtherance of the above agreement, accused Nos.1 to 12 had travelled in the Tata Sumo vehicles belonging to eighth and ninth accused (KL-5P 3068 and KL-12/b 4008) on 1.9.2007 at about 12.30 in the noon and reached the house and Accused Nos.1, 2, 3 and 5 had broke opened the front door of the house and entered into the house and Accused Nos.1 and 2 had voluntarily caused hurt to C.Ws.1 and 2 by beating with hand and kicking with legs and thereafter the accused in this case had forcefully brought out C.Ws.1 and 2 from inside the house and in the meanwhile Accused Nos.9, 10, 11 and 12 entered into the house and committed dacoity and extortion by taking away the bag belonging to C.W.1 containing gold chains, Rs.30,000/-, dollar, mobile phone and key of lockers. Thereafter Accused Nos.1 and 5 to 8 had together forcefully took C.Ws.1 and 2 in car KL-5 P 3068 driven by 8[th] accused towards Vezhanganam and while on travelling in the Crl.A.No.804/2011 -:4:- Sumo vehicle, the fifth accused had forcefully put waste cloths into the mouth of C.W.1 and 6[th] accused pushed waste cloth to the mouth of C.W.2 to avoid crying and they also committed dacoity by forcefully snatching the gold chain worn by C.Ws.1 and 2 and thereafter abandoned C.Ws.1 and 2 on the roadside at Vezhanganam and since all the accused were acting with the common intention and accused 1 to 4 had abetted the commission of offences by accused 5 to 12, all accused are commonly liable for offences alleged above. - 4.The evidence on record reveals that the issues which lead to the unfortunate incidents narrated above were essentially the outcome of a matrimonial dispute. - 5.There are other disputes pending between the defacto complainant wife and the 1[st] accused husband. Crl.R.P.2467/2012 filed by the 1[st] respondent pending before this court against the judgment in Crl.A.No.822010 of Additional Crl.A.No.804/2011 -:5:- Sessions Court, Kottayam (arising out of M.C.(D.V.)No.43/2007 of Judicial Magistrate of the First Class, Erattupetta and R.P.F.C.No.222/2007 of the Family Court, Kottayam were also settled between the parties. Parties appeared before court in person and filed joint statements and accordingly orders were passed as per the terms of settlement in the above said cases. Now the fourth accused/fourth appellant has executed a registered document granting a right of way over the property purchased by him to the property belonging to the son of the petitioner and first accused. 6.Now the parties have settled the disputes amicably. The defacto complainant (wife of the first accused) filed Crl.M.A.No.1172 of 2014 seeking to invoke the powers of this Court under Section 482 of the Code of Criminal Procedure to treat the offences as compounded and to quash the conviction and sentence passed against the appellants. Hence the question arises for Crl.A.No.804/2011 -:6:- consideration is: Whether the offences which are non-compoundable in nature can be compounded and if not, whether the High Court, in exercise of its power under Section 482 Cr.P.C., can quash the conviction and sentence passed against the appellants, in the circumstances of the case. 7.The position regarding the same is settled now after the decision of the Honourable Apex Court in a number of cases. The Apex Court held that though the High Court cannot compound the offences which are non-compoundable in nature, it can very well use its wide powers under Section 482 to quash the charge against accused even in pre-trial stage. The decision in Jitendra Raghuvanshi v. Babitha Raghuvanshi (2013 (2) K.L.T. 47 (S.C.) in which the Apex Court in paragraph 12 opined in unambiguous terms that even if the offences are non-compounmdable, if they relate to matrimonial disputes and the court is satisfied that the Crl.A.No.804/2011 -:7:- parties have settled the same amicably and without any pressure, the court can exercise its inherent power for quashing such FIR, complaint or subsequent criminal proceeding. Section 320 would not be a bar for exercising such power. 8.In another reeported decision, i.e. Shiji v. Radhika (2011 (4) KLT 682 SC) the Apex Court, in paragraph 13, held that a court, trying or hearing an appeal against conviction may not be competent to permit compounding of an offence based on settlement arrived at between the parties in cases where offences are non-compoundable under Section 320. The High Court may quash the prosecution even in cases where the offences with which accused stands charged are non-compoundable. The inherent powers of High Court under Section 482 Cr.P.C. are not for that purpose controlled by Section 320 Cr.P.C. By this decision the Apex Court widened the scope of Section 482 even to matters pending in appeal against conviction and sentence. Crl.A.No.804/2011 -:8:- The only word of caution from the Apex Court was that such powers need to use sparingly and cautiously and the same should not be used where the offences are grievous in nature and are against society at large. 9.This Court itself, while exercising its powers under Section 482, quashed a charge sheet filed under Sections 308 and 324 I.P.C. in which the proceedings were initiated at the instance of a complaint launched by the daughter in law noting the fact that disputes were amicably settled between the parties (Saliha v. Abdulla (2013 (2) KLT SN (C.No.5). 10.In Thankamma v. State of Kerala (2006 (3) KLT 846) this Court considered whether the power under Section 482 can be exercised in an appeal against conviction. In the said decision, this Court categorically stated that, though the appellate court cannot compound an offence which is non-compoundable in nature, the inherent powers under Section 482 can be used for Crl.A.No.804/2011 -:9:- quashing the proceedings against the accused/appellant and thus acquitted the accused/appellant. The said decision is squarely applicable in the present case, more so, considering the age of both the 1[st] appellant and defacto complainant. - 11.Now, in this case as stated above, all the disputes between the parties have been settled and joint statements are filed. Certain other disputes over the property are also settled. 12.Considering the facts and circumstances of the case, it would be appropriate to accept the request of the parties for compounding the offences and the insitution of marriage could be saved and the ends of justice would be met by exercising the powers under Section 482 as held by this Court in 2006(3) KLT 846. Therefore, Crl.M.A.No.1172 of 2014 is to be allowed and all offences alleged against the accused Nos.1 to 12/appellants are to be compounded and the criminal proceedings are to be quashed accordingly. The conviction and sentence passed Crl.A.No.804/2011 -:10:- against appellants 1 to 12 are to be set aside and the convicted persons are acquitted and set at liberty. All gold ornaments, currency notes and dollar marked as material objects in the case shall be returned to the defacto complainant. Crl.Appeal is disposed of accordingly. **B.P. Ray, Judge.** sl.