IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 Crl.Rev.Pet.No. 2373 of 2009() ------------------------------ CRA.489/2005 of ADDL. SESSIONS COURT (FAST TRACK COURT NO.II-ADHOC), THRISSUR CC.734/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED ---------------------------------------------------------- INDRAN @ CHANDRAN @ SHABU, S/O.RAGHAVAN, PUDUPPULLI HOUSE, RANDAMKALLU, CHENGALLOOR, THRISSUR DISTRICT. BY ADV. SRI.M.N.UNNIKRISHNAN SRI.P.K.MOHANAN(PALAKKAD) RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL.RESPONDENT NO.2/DEFACTO COMPLAINANT: 2. MOHANAN, S/O.THEYYUNNI, RESIDING AT PUTHUPPULLI HOUSE, CHAENGALORE DESOM, MUKUNTHAPURAM TALUK, TRISSUR DISTRICT. (ADDL.RESPONDENT NO.2 IS IMPLEADED VIDE ORDER DATED 13.8.2009 ON CRL.M.A.NO.7762/2009) PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R1 SRI.K.C.KIRAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2373 of 2009 -------------------------------------- Dated this the 13th day of August, 2009. ORDER Heard both sides. 2. This revision is in challenge of judgment of learned Additional Sessions Judge, Fast Track Court No.II (Adhoc), Thrissur in Crl.Appeal No.489 of 2005 arising from C.C.No.734 of 2000 of the court of learned Judicial First Class Magistrate, Irinjalakuda. Petitioner, nephew of additional respondent No.2 faced trial for offence punishable under Section 326 of the Indian Penal Code (for short, “the Code”). Case is that on 13.2.2000 at about 7 p.m. in front of the shop of one Manjali Jose petitioner voluntarily caused grievous hurt to additional respondent No.2 assaulting him with a sword. Learned magistrate found that petitioner committed offence as alleged and sentenced to undergo simple imprisonment for three months and payment of fine of Rs.5,000/- with a default sentence. Appellate court confirmed the conviction and sentence. It is contended by learned counsel that conviction and sentence of petitioner are not legal and proper. It is submitted that petitioner and additional respondent No.2 have settled the dispute. They have filed Crl.M.A.No.7761 of 2009 supported by an affidavit of additional respondent No.2 sworn before his counsel. Crl.R.P.No.2373/2009 2 3. That, additional respondent No.2 suffered grievous hurt is proved by Ext.P4 and evidence of PW8. Additional respondent No.2 has given evidence as PW1 and stated that on the relevant day, time and place petitioner assaulted him with a sword and inflicted injuries on him. According to PW1, he was immediately taken to the hospital. PWs 2 to 4 did not support the prosecution. According to PW1 it was PWs 3 and 4 who took him to the hospital. Ext.P2 is the mahazar for scene of occurrence prepared by PW5. PW6, head constable recorded first information statement of additional respondent No.2 on 14.02.2000 while the latter was undergoing treatment in the hospital and registered the case. PW7 investigated the case. 4. It is true that the weapon of offence has not been recovered by the Investigation Officer. But absence of weapon of offence is not by itself sufficient to find against the case of prosecution. That, additional respondent No.2 suffered grievous hurt is proved by prosecution. It is seen from Ext.P4 and evidence of PW8 that he examined additional respondent No.2 at about 10 p.m., ie. just after three hours of the incident. It is also seen from Ext.P4 that additional respondent No.2 had told PW8 that he suffered injury due to assault with sword. It is not shown that evidence of additional respondent No.2 is not trustworthy for any reason whatsoever. Courts below have accepted evidence of additional respondent No.2 and found petitioner guilty. There is no reason to interfere with that finding. Crl.R.P.No.2373/2009 3 5. So far as the request for composition is concerned, offence punishable under Section 326 of the Code is not compoundable with or without permission of the court. Hence that request cannot be allowed. Consequently Crl.M.A.No.7761 of 2009 will stand dismissed. 6. What remained for consideration is whether sentence awarded to the petitioner required interference. It is admitted that petitioner is the nephew of additional respondent No.2. Learned counsel for petitioner submits that the dispute having been settled between the parties, they are living peacefully with mutual co-operation and that now it is petitioner who is looking after additional respondent No.2. It is submitted by counsel on both sides that additional respondent No.2 has no children and hence petitioner is looking after him. 7. Though I found that offence punishable under Section 326 of the Code is not compoundable and hence dismissed Crl.M.A.No.7761 of 2009, fact of composition can be taken into account while considering the sentence. Civil dispute is said to have been the motive for the incident. It is not shown that petitioner is involved in any other case. Petitioner is now aged about 30 years and has a family to look after. Parties have settled the dispute. The incident did not in any way affect public tranquility and peace. Considering these aspects I am inclined to think that it is not necessary to send petitioner behind bars and that simple imprisonment till rising of the court is sufficient in the ends of justice. 8. At the same time, additional respondent No.2 who suffered grievous hurt at the hands of petitioner cannot be forgotten. He must be Crl.R.P.No.2373/2009 4 compensated for the injuries suffered by him. He had to undergo treatment in and out of the hospital for sometime. Having regard to the nature of injuries suffered, I am inclined to think that Rs.20,000/- will be sufficient compensation for additional respondent No.2. Petitioner has to pay that amount to additional respondent No.2. Resultantly, this revision petition is allowed in part to the following extent: i. Substantive sentence awarded to petitioner is modified as simple imprisonment till rising of the court. ii. Sentence of fine is set aside. Instead petitioner is directed to deposit in the trial court Rs.20,000/- (Rupees Twenty thousand only) for payment to additional respondent No.2 by way of compensation under Section 357(3) of the Code of Criminal Procedure on or before 13.10.2009 failing which petitioner has to undergo simple imprisonment for three months. iii. It is made clear that it will be sufficient compliance of the direction for deposit of compensation if petitioner paid compensation to additional respondent No.2 and additional respondent No.2 filed a statement in the trial court acknowledging receipt of compensation within the above said period. Crl.R.P.No.2373/2009 5 Petitioner shall appear in the trial court on 14.10.2009 to receive the sentence. Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks