IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 Crl.Rev.Pet.No. 1449 of 2001() -------------------------------------------- CRA.NO. 53/1999 of IIND ADDL. SESSIONS COURT, PALAKKAD CC.NO. 99/1996 of JUDICIAL MAGISTRATE OF FIRST CLASS, PATTAMBI .................... REVN. PETITIONER/ APPELLANT/ ACCUSED:NO.1 ------------------------------------------------------------------------ MUHAMMEDKUTTY, S/O. KUNJHAPPU, CHAKKINGALTHODI VEEDU, CHERUKODU, VALLAPUZHA, OTTAPALAM TALUK. BY SRI.P.VIJAYA BHANU (SENIOR ADVOCATE) BY ADV. SRI.P.M.RAFIQ RESPONDENT/ RESPONDENT/ COMPLAINANT: -------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts V.K.MOHANAN, J ------------------------------- Crl.R.P.No.1449 of 2001 ---------------------------------------- Dated this the 24th day of May, 2011 ORDER This revision petition is directed against the conviction and sentence imposed on the revision petitioner, who faced prosecution for the offence under Section 326 of IPC. 2. The prosecution case is that due to the previous enmity of the accused against PW1, on account of the petition filed by him before the RDO, Ottappalam connected with the property dispute and obstruction caused to the free flow of water through a water channel, on 11.01.1996 at about 11.30 hours, when PWs. 1 and 2 were going to see the water channel by walking, along with the foundation laid by the accused in their paramba, the revision petitioner/first accused beat PW1 with a spade handle on his left leg and he sustained a fracture on his left leg. According to the prosecution PW1 was again beat by the accused by the same spade handle and cause injury on his head. Thus, according to the prosecution the accused has committed the offence punishable under Section 326 r/w Crl.R.P.No.1449 of 2001 2 Section 34 of IPC. Based upon the above incident, Crime No.14/96 was registered in Pattambi Police Station for the said offences and after investigation the Police preferred a report against the accused. Since the second accused was absconding the case against split up and refiled as C.C.No.32/1999. During the trial PWs 1 to 11 were examined from the side of the prosecution and produced Ext.P1 to P7. MO1 and MO2 were identified and marked as material objects. Finally, the learned Magistrate came into the conclusion that the prosecution has succeeded in proving the case against the revision petitioner beyond reasonable doubt and he is found guilty under Section 326 of IPC and accordingly convicted him thereunder. On such conviction, the learned Magistrate sentenced him to undergo rigorous imprisonment for 2 ½ years under Section 326 of IPC. 3. Aggrieved by the above order of conviction and sentence, the first accused/revision petitioner had preferred Crl. Appeal No.33/1999 before the Sessions Court, Palakkad Crl.R.P.No.1449 of 2001 3 and by judgment dated 29.10.2001 in Crl.Appeal No.53/99, the learned Sessions judge allowed the appeal only in part. Thus, while confirming the conviction, the sentence ordered by the trial court is altered and sentenced the revision petitioner to undergo rigorous imprisonment for a period of 6 months for the offence under Section 326 of IPC instead of 2 ½ years as awarded by the trial court. It is the above conviction and sentence challenged in this revision petition. 4. I have heard the learned Senior counsel appearing for the revision petitioner and also the learned Public Prosecutor for the State. I have also perused the judgments of the trial court as well as the appellate court. 5. At the outset, it is to be noted that during the pendency of the above revision petition, an unnumbered petition is filed before this Court under Section 320(2) and (6) of Cr.P.C, to alter the conviction to Section 324 IPC and grant permission to compound the offence and according to compound the case and acquit the revision petitioner. The said petition is supported by an affidavit filed by one Crl.R.P.No.1449 of 2001 4 Viswanathan who is the defacto complainant the injured in the above case. In the said affidavit it is categorically stated by him that the incident arose out of a civil dispute and subsequently, the matter has been settled out of court between the revision petitioner as well as the defacto complainant at the instance of the mediators. As such, the defacto complainant has no grievance against the revision petitioner especially they being neighbors, they want to live in peace and harmony. 6. On merit, from the evidence it can be seen that the prosecution has proved the allegation against the revision petitioner beyond any doubt. The evidence of PW1 and PW2 positively prove the prosecution case. PW1 is the injured whose evidence is corroborated by the medical evidence that consist of Ext.P7 wound certificate and deposition of PW11. It is also relevant to note that even according to the prosecution the incident was taken place when PW1 was leading PW2 the Village Officer to see the water channel which was blocked by the accused and thus the incident Crl.R.P.No.1449 of 2001 5 was taken place in the presence of an independent official witness namely PW2 the Village Officer who was conducting inspection as directed by the RDO, on the date of incident. So the evidence of PW1 regarding the incident and the injury sustained by him is fully corroborated by the evidence of PW2 who is the independent witness. So, I find no reason to interfere with the findings arrived on the trial court as well as the appellate court. 7. The incident was taken place on 11.1.1996 and thereafter 15 years are over. During the pendency of the revision petition as evident from the petition filed by the parties which, I indicated earlier the matter has been settled out court. But Section 326 of IPC for which the petitioner stand convicted is an offence which is not compoundable. But considering the fact that the matter has been settled out court and the incident was taken place 15 years back and following the decision of the Hon'ble Apex court in 2011(3) SC 209. I am of the view that the sentence of imprisonment ordered by the trial court which modified Crl.R.P.No.1449 of 2001 6 by the appellate court can be again modified and be confined to one day simple imprisonment i.e., till the rising of the court. In the result, this revision petition is disposed of confirming the conviction of the revision petitioner under Section 326 of IPC but the sentence of imprisonment is modified and reduced into one day simple imprisonment i.e., till the rising of the court. Accordingly, the revision petitioner is directed to appear before the trial court on 24.06.2011 to receive the modified sentence. If there is any failure on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence. The revision petition is disposed of accordingly. V.K.MOHANAN, JUDGE pm/