IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Crl.Rev.Pet.No. 1181 of 2001() ------------------------------ CRA.21/1999 of II ADDL.SESSIONS COURT, ERNAKULAM CC.80/1996 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED --------------------- 1. JUDE THATHEVOOS, S/O.JOSE, PUTHENVEETTIL, KUMBALANGI, KUMBALANGI VILLAGE, ERNAKULAM DISTRICT. 2. PETER S/O.FRANCIS, VELIPARAMBIL, KUMBALANGI, KUMBALANGI\ VILLAGE, ERNAKULAM. BY ADV. SRI.M.L.SAJEEVAN RESPONDENT(S):/REPSONDENT/COMPLAINANT --------------- STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BYPUBLIC PROSECUTOR SHRI AMJAD ALI ADV. SRI.VINEETH KURIAKOSE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1181 of 2001 -------------------------------------- Dated this the 13th day of November, 2008. ORDER Heard both sides. 2. Petitioners are the accused in C.C.No.80 of 1996 of the court of learned Judicial First Class Magistrate-I, Kochi. They faced trial in that court for offences punishable under Sections 323 and 326 read with Section 34 of the Indian Penal Code. Charge is that on 10.12.1995 at about 1.30 p.m. revision petitioners voluntarily caused hurt/grievous hurt to PW1. Learned magistrate convicted the revision petitioners on both counts and sentenced them to undergo rigorous imprisonment for two years each under Section 326 read with Section 34 of the Code and rigorous imprisonment for 3 months under Section 323 read with Section 34 of the Code. Aggrieved, revision petitioners preferred Crl.Appeal No.21 of 1999. Learned II Additional Sessions Judge, Ernakulam confirmed the conviction and sentence. Revision petitioners are in this Court challenging the conviction and sentence. 3. Revision petitioners and PW1 filed Crl.M.A.No.10384 of 2008 reporting settlement and seeking permission of this Court under Section 320 (6) of the Code of Criminal Procedure (for short, ‘the Code’). PW1 has appeared in this Court through counsel. That application is also heard along with the revision. Crl.R.P.No.1181/2001 2 4. Following points arose for consideration:- (1) Whether the conviction of revision petitioners is legal and proper? (2) Whether the composition entered between revision petitioners and PW1 could be accepted? (3) Whether sentence awarded is excessive. 5. Perused the records. Point No.1. 6. Prosecution examined PWs 1, 2, 4 and 7 to prove the alleged incident. Of them, PWs 2 and 7 did not support prosecution. According to PW1, defacto complainant, the incident occurred while he was talking to PWs 2 and 7. PWs 2 and 7 however only stated that PW1 suffered injury. PW4 supported the prosecution. PWs 1 and 4 have given evidence that at the relevant time, day and place, revision petitioners attacked PW1, revision petitioners beating PW1 with iron rod. PW1 was not able to identify the iron rod. He stated that he does not know whether MO1 is that iron rod. PW4 identified MO1. According to the prosecution, MO1 was produced by the second revision petitioner which was taken to custody by PW10 as per Ext.P2. Ext.P6 is the mahazar for place of occurrence prepared by PW10. That PW1 suffered grievous hurt is proved by the evidence of PWs 6 and 8 and Exts.P4 and P4. 7. One contention raised is that none of the neighbours at the place of occurrence has been cited as witnesses and examined by the prosecution. Non-examination of neighbours is no reason to disbelieve PWs 1 and 4. Crl.R.P.No.1181/2001 3 According to the prosecution by the time neighbours reached the scene of occurrence the revision petitioners had gone away. There is evidence of PWs 1 and 4 regarding the offence. Courts below have accepted their evidence and found revision petitioners guilty under Section 326 read with Section 34 of the Penal Code. There is no illegality or irregularity committed by the courts below in entering that finding, requiring interference in revision. Conviction of revision petitioners under Section 326 read with Section 34 of the Penal Code therefore, does not require any interference. Point No.2. 8. In Crl.M.A.No.10384 of 2008 it is stated by revision petitioners and PW1 that the matter stands settled between them out of court and that PW1, defacto complainant has no grievance against the revision petitioners and do not want to proceed with the case further. There is no reason to think that the settlement is not voluntarily. 9. So far as the acceptance of the composition is concerned, courts below have found the revision petitioners guilty of the offence under Section 326 read with Section 34 of the Code as well. That offence is not compoundable. It has been held by the Hon’ble Supreme Court that the provisions of Section 482 of the Code has to be used sparingly and with utmost circumspection . There is no prayer to quash the charge against revision petitioners under Section 482 of the Code. Therefore, prayer for compounding the offence under Section 326 of the Penal Code cannot be accepted. But, offence under Section 323 of the Crl.R.P.No.1181/2001 4 Penal Code is compoundable even without permission. Hence the application to the extent it concerned with Section 323 of the Penal Code will stand allowed. Point No.3. 10. What remained for consideration is whether sentence awarded to the revision petitioners for the offence under Section 326 of the Penal Code is excessive. While answering point No.2, I found that offence under Section 323 read with Section 34 of the Penal Code stands lawfully compounded. That should have the effect of acquittal of the revision petitioners for that offence under Section 320 (8) of the Code. So far as sentence awarded for the offence punishable under Section 326 of the Penal Code is concerned, though I found while answering point No.2 that the composition to the extend it concerned Section 326 of the Penal Code cannot be accepted, the fact of composition between revisions petitioners and PW1 is certainly a matter to be taken into account while considering whether the sentence awarded for that offence is required to be interfered. It is submitted by learned counsel for revision petitioners and admitted by learned counsel for PW1 also that while settling the dispute between the parties, revision petitioners have paid Rs.15,000/- as compensation to PW1. Revision petitioners have been fighting this case from 1995 onwards. In these circumstances, I am inclined to think that sentence for the offence under Section 326 of the Penal Code can be modified as simple imprisonment till rising of the court. No other point arose for consideration. Resultantly, this revision is allowed in part in the following lines:- (1) The composition entered between revision petitioners and PW1 to Crl.R.P.No.1181/2001 5 the extent it concerned the offence under Section 323 read with Section 34 of the Penal Code is accepted and that shall have the effect of acquittal of revision petitioners for that offence under Section 320(8) of the Code. Crl.M.A.No.10384 of 2008 is allowed to that extent. (2) Sentence awarded to the revision petitioners for the offence under Section 326 of the Penal Code is modified as simple imprisonment till rising of the court. Revision petitioners shall surrender in the trial court on 15.12.2008 to receive the sentence. Bail bonds are cancelled. Crl.M.P No.5634 of 2001 will stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.1181/2001 6 THOMAS P.JOSEPH, J. CRL.R.P.No.1181 of 2001 ORDER 13th November, 2008