Ramesh Vs. State - Court Judgment

Excerpt:
criminal procedure code, 1973 - sections 320, 482--compounding of non-compoundable offence--permissibility--offence under section 326, ipc--victim girl aged 5 years lost her eye sight in her left eye--compromise between the parties through the intervention of common relatives and friends--application dismissed with a lenient view to reduce the sentence of imprisonment to one year and direction issued to pay a fine of rs. 30,000/- out of which rs. 28,000/- would be paid to the victim by way of compensation. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. manju goel, j.1. although the revision petition was fixed for hearing on 25.1.2005 it is taken up today on account of crl. mis. no. 3/2005 for prepaymentof the date and for disposal of the crl. mis. no. 1473/04 for bail and suspension of sentence. in the meantime, an application under section 482 cr.p.c. has also been filed for compounding the offence.2. the revision petitioner, ramesh @ pappey, was tried and convicted for an offence under section 326 ipc by the court of m.m. and the conviction was upheld in appeal by the court of sessions. as per the two judgments the petitioner on 10.11.1988 despite being warned by the father of the victim proceeded to burn the crackers in the courtyard where children were playing and the victim girl aged 5 years was sleeping on a cot and threw a burning cracker on the victim thereby injuring her left eye. the victim lost her eye sight in her left eye. after examining the witnesses the learned trial court convicted the accused and after hearing the accused on the quantum of sentence imposed a penalty of three years ri and a fine of rs. 2,000/-. the appellate court of additional sessions judge has not interfered with the penalty. 3. in the application under section 482 cr.p.c. (crl. m. no. 2/2005) it is contended on behalf of the victim that she has attained the age of majority, that she is closely related to the accused and that through the intervention of common relatives and friends her family and the family of the accused have compromised. it is further contended that since two families are now living in harmony, no useful purpose would be served by punishing the accused and, thereforee, she may be granted permission to compound the offence of the accused.4. admittedly, section 326 ipc is not a compoundable offence. learned counsel for the accused referring to a judgment reported in recent criminal reports titled as kailash & ors. vs. state of haryana reported as 1992 (1) rcr 198 argues that the compounding is permissible even in a case under section 326 ipc. having gone through the judgment i find that in that case although the conviction was under section 326 ipc the injury was simple and the high court of punjab & haryana did not actually compound the offence. it only reduced the penalty. 5. i find no force in the application for compounding the offence and the same is accordingly dismissed.6. on merit of the revision petition, learned counsel for the petitioner has nothing to submit except praying for reduction of sentence particularly in view of the compromise arrived at between the parties. he prays that the accused be released with a sentence of the period already undergone by him in custody which seems to be of only four months. i find from the copy of the order of the learned m.m. that the magistrate had turned down request to take a lenient view in the matter. i think the magistrate took a very appropriate view as per the situation which then obtained but since now the injured having reached the age of majority has compromised with the accused and is willing to forget and forgive and since it may not be conducive to the friendly relations of the neighbours to impose such a long sentence of imprisonment, it will be appropriate to reduce the substantive sentence and instead compensate the victim for the damage caused to her left eye by the offence. i, thereforee, invoke the provisions of section 357 cr.p.c. and alter the sentence as under:the petitioner shall undergo ri for one year and shall pay a fine of rs. 30,000/- out of which rs. 28,000/- would be paid to the victim by way of compensation. in default of payment of fine, the accused shall undergo si of 15 months. the accused shall be entitled to the benefit of section 428 cr.p.c. the period of detention undergone by him during investigation, inquiry or trial shall be set-off against the sentence.7. copy of this order be sent to the court of concerned m.m. and to the superintendent of tihar jail for necessary compliance.