Biju Eappen Vs. State of Kerala

Biju Eappen vs State of Kerala

Disposition Petition allowed Court Kerala Decided Dec 21, 2009

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https://sooperkanoon.com/case/849208

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Citation: sooperkanoon.com/849208
Court: Kerala High Court
Judge: M. Sasidharan Nambiar, J.
Decided On: Dec 21, 2009
Case Number: Crl. M.C. No. 3695 of 2009
Subject: Criminal
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- What remains to be seen is as to whether Pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. If these ingredients are proved by the prosecution then the conviction of th...

Key legal issue: Criminal
Outcome / disposition: Petition allowed
Acts & sections: Indian Penal Code (IPC), 1860 - Section 498A; ;Code of Criminal Procedure (CrPC) - Section 482

Parties & Advocates

Appellant / Petitioner

Biju Eappen

Advocate K. Mohanakannan, Adv.

Respondent

State of Kerala

Advocate P.A. Salim, Public Prosecutor,; V.S. Chandrasekhar and;

Legal References

Acts: Indian Penal Code (IPC), 1860 - Section 498A; ;Code of Criminal Procedure (CrPC) - Section 482
Cases Referred: B.S. Joshi v. State of Haryana
Reported In: 2010(1)KLT289

Excerpt

- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16]orderm. sasidharan nambiar, j.1. petitioner is the first accused and second respondent the de facto complainant in c.c. no. 73/2007 on the file of judicial first class magistrate's court, nilambur. by annexure-a1 judgment, accused 2 and 3, were acquitted and petitioner/first accused was convicted for the offence under section 498a of indian penal code and sentenced to simple imprisonment for five months and a fine of rupees five thousand. challenging the conviction and sentence, crl. a. no. 57/2009 was filed before sessions court, manjeri and it is pending. meanwhile, entire matrimonial disputes between the petitioner and second respondent, his wife, the de facto complainant, were settled in respect of all the cases pending between them. consequent to the settlement and in view of the agreement entered into by the petitioner and second respondent, to settle all the disputes, this petition is filed under section 482 of code of criminal procedure to quash the conviction and sentence now pending in crl.a. no. 57/2009, annexure-a3 affidavit/joint statement of the petitioner and second respondent was produced, which shows that there has been a complete settlement of all the matrimonial disputes.2. learned counsel appearing for the petitioner, second respondent and learned public prosecutor were heard.3. learned public prosecutor submitted that statement of the second respondent, the de facto complainant was subsequently recorded and it shows that entire matrimonial disputes were amicably settled.4. annexure-a1 judgment of the learned magistrate shows that petitioner was convicted for the offence under section 498a of indian penal code finding that petitioner treated second respondent with cruelty as provided under section 498a of indian penal code. joint-statement (annexure-a3) filed by the petitioner and second respondent establishes that o.p. no. 25 8/2007 was filed by the second respondent for realisation of money and gold, ornaments from the petitioner and o.p. no......

Full Judgment

ORDER

M. Sasidharan Nambiar, J.

1. Petitioner is the first accused and second respondent the de facto complainant in C.C. No. 73/2007 on the file of Judicial First Class Magistrate's Court, Nilambur. By Annexure-A1 judgment, accused 2 and 3, were acquitted and petitioner/first accused was convicted for the offence under Section 498A of Indian Penal Code and sentenced to simple imprisonment for five months and a fine of Rupees Five thousand. Challenging the conviction and sentence, Crl. A. No. 57/2009 was filed before Sessions Court, Manjeri and it is pending. Meanwhile, entire matrimonial disputes between the petitioner and second respondent, his wife, the de facto complainant, were settled in respect of all the cases pending between them. Consequent to the settlement and in view of the agreement entered into by the petitioner and second respondent, to settle all the disputes, this petition is filed under Section 482 of Code of Criminal Procedure to quash the conviction and sentence now pending in Crl.A. No. 57/2009, Annexure-A3 affidavit/joint statement of the petitioner and second respondent was produced, which shows that there has been a complete settlement of all the matrimonial disputes.

2. Learned Counsel appearing for the petitioner, second respondent and learned Public Prosecutor were heard.

3. Learned Public Prosecutor submitted that statement of the second respondent, the de facto complainant was subsequently recorded and it shows that entire matrimonial disputes were amicably settled.

4. Annexure-A1 judgment of the learned Magistrate shows that petitioner was convicted for the offence under Section 498A of Indian Penal Code finding that petitioner treated second respondent with cruelty as provided under Section 498A of Indian Penal Code. Joint-statement (Annexure-A3) filed by the petitioner and second respondent establishes that O.P. No. 25 8/2007 was filed by the second respondent for realisation of money and gold, ornaments from the petitioner and O.P. No. 21/2007 was filed by the petitioner for restitution of conjugal rights and M.C. No. 693/2006 was filed by the second respondent for her maintenance as well as for the maintenance of the child and though maintenance was awarded by Family Court, Malappuram, it was challenged before this Court in R.P.(FC) No. 425/2007. It is also clear that when these disputes were pending, there was intervention by mediators and entire matrimonial disputes were amicably settled and consequent to the settlement, second respondent has no subsisting grievance against the petitioner. It is, in such circumstances, quashing of the conviction and sentence has been sought for.

5. An offence under Section 498A of Indian Penal Code is not a compoundable offence. In such circumstances, learned Sessions Judge cannot be directed to permit the parties to compound the offence in Crl. A. No. 57/2009. In the light of the settlement arrived at between the parties, as held by the Apex Court in B.S. Joshi v. State of Haryana : 2003 (2) KLT 1062 (SC) : (2003)4 SCC 675, it is not in the interest of justice to continue the prosecution. Therefore, though the Sessions Judge cannot set aside the conviction based on the settlement arrived at between the parties, this Court, exercising the extraordinary inherent power under Section 482 of Code of Criminal Procedure, could, definitely, set aside the conviction and quash the proceedings, when due to the settlement of all the matrimonial disputes, conviction passed by the learned Magistrate under Annexure-Al, is necessarily to be interfered with, to secure justice, exercising the powers under Section 482 of Code of Criminal Procedure.

The petition is allowed. The conviction and sentence passed by Judicial First Class Magistrate, Nilambur in C.C. No. 73/2007 is set aside and Crl. A. No. 57/2009 pending before Sessions Court, Manjeri as well as C.C. No. 73/2007 on the file of Judicial First Class Magistrate's Court, Nilambur are also quashed.

Same Court & Year Kerala · 2009 Same Parties Biju Eappen vs State of Kerala Same Subject Criminal Same Judge M. Sasidharan Nambiar, J. Acts & Sections Indian Penal Code (IPC), 1860 - Section 498A; ;Code of Crimin...

Criminal