IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 Crl.Rev.Pet.No. 2911 of 2009(D) ------------------------------ CRA.824/2006 of SESSIONS COURT, TRIVANDRUM CC.849/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA .................... REVISION PETITIONERS:APPELLANTS:ACCUSED 2 & 3 ------------------------------------------------------------------ 1. THULASI, S/O.JANARDHANAN NADAR, NEDIYAVILA VEEDU, VANDITHADOM, VELLAYANI P.O., MUTTUKADU DESOM. 2. SREEKUMAR @ KUMAR, S/O.KRISHNAN NADAR, PUNCHAKKARI, NO.III/514, KUZHIVILA PUTHEN VEEDU, THIRUVALLOM DESOM. BY ADV. SRI.M.SREEKUMAR RESPONDENTS: RESPONDENT:COMPLAINANT ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SREEDHARAN NADAR, PLAVILA VEEDU, MUTTUKKAD, VELLAYANI P.O., THIRUVANANTHAPURAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN ADV. SRI.SAJU.S.A FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.2911 of 2009 ------------------------------------- Dated this the 16th day of November, 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty and conviction under Sections 323, 324, 326 and 341 r/w 34 I.P.C and the modified sentence imposed by the appellate court. 2. The crux of the allegations is that the accused persons, 3 in number, had in furtherance of their common intention attacked PW1 and had caused grievous hurt to him. The prosecution alleged that a dangerous weapon was made use of for the commission of the offence and infliction of the injury on PW1. 3. Of the 3 accused persons who faced indictment, accused No.1 was not available for trial. The trial proceeded only against accused Nos.2 and 3. They were found guilty, convicted and sentenced by the courts below. 4. Before me when the matter came up for hearing, the counsel for the petitioners (accused Nos.2 and 3) and the counsel for the 2nd respondent/the defacto Crl.R.P No.2911 of 2009 2 complainant/victim/injured submitted that the parties have willingly and voluntarily settled all their outstanding disputes. The defacto complainant/victim/PW1 has compounded all the offences allegedly committed by the petitioners. In these circumstances, it is prayed that the requisite leave may be granted, composition may be accepted and the verdict of guilty, conviction and sentence imposed on the petitioners may be set aside. 5. Except the offence punishable under Section 326 I.P.C, all offences alleged are compoundable. The learned counsel for the petitioners contends that the conviction under Section 326 I.P.C would not stand at all. According to the learned counsel, there is absolutely no satisfactory evidence to show that the crucial injury (fracture) was suffered on account of any overt act with any weapon. The counsel points out that the wound certificate does not at all reveal any corresponding external injury to the crucial injury, ie. the fracture suffered on the right wrist. The learned counsel for the petitioners points out that the accused have a case that at the scene of the incident, the victim while trying to jump over a wall had fallen Crl.R.P No.2911 of 2009 3 and the injury had been suffered on account of this fall and not on account of infliction with any dangerous weapon. 6. The learned counsel for the petitioners submits that even if this Court were not inclined to accept the said contention now, it is very evident that the alleged injury has not been proved to have been inflicted with any dangerous weapon. The learned counsel for the petitioners submits that to attract punishment under Sections 324 and 326, injury must have been caused by dangerous weapons or means. Only when the grievous hurt is caused “by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow or to receive into blood, or by means of any animal”, can the punishment under Section 326 I.P.C be attracted. In the instant case it is crucial to note that the weapon of offence has not been traced or produced at all. The counsel strains to contends that the only relevant data is that the weapon, ie. the coconut (cudjan) stick, used for the commission Crl.R.P No.2911 of 2009 4 of offence has a length of 2 feet. The available indications are insufficient to conclude that the weapon used belongs to the category of weapons which can attract conviction under Section 326 I.P.C. In these circumstances, a lenient view may be taken and it may be held at any rate that the offence punishable under Section 326 I.P.C is not made out and at worst what is made out is only the offence punishable under Section 325 I.P.C which is only a compoundable offence with permission of the Court under Section 320(2) Cr.P.C. 7. I do take note of the fact that the weapon has admittedly not been produced and marked. The medical officer has not been questioned in detail about the possible nature of the weapon on the basis of the injury suffered. No substantive evidence of the possible nature of the weapon is tendered by him. It is not the evidence of the medical officer that the injury could have resulted only if a dangerous weapon were used. The only description of the weapon which comes from the mouth of a witness is sufficient only to show that the injury was inflicted with a coconut (cudjan) stick of length 2 feet. I am satisfied, in these circumstances, that a crucial ingredient of Section 326 I.P.C has not been established and therefore the learned counsel Crl.R.P No.2911 of 2009 5 for the petitioner is justified in his contention that the offence under Section 326 I.P.C has not been established and at worst the offence that is established can only be held to be the one under Section 325 I.P.C and not 326 I.P.C. 8. I am further satisfied that the parties have willingly and voluntarily settled their disputes and the defacto complainant/PW1/victim has voluntarily compounded the offence alleged against the petitioners/accused. The purpose of all laws is the attainment of harmony and when the offences are compoundable and this Court is satisfied that the parties have willingly and voluntarily settled all their outstanding disputes and the victim has compounded, I find no reason not to allow such composition after granting the requisite leave. The State has no objection against the composition, submits the learned Public Prosecutor. 9. I am, in these circumstances, satisfied that Crl.M.Appl.No.8949 of 2009 for composition can be accepted. The said application is duly signed by the defacto complainant/victim and is counter signed by his counsel. The learned counsel for the defacto complainant/2nd respondent Crl.R.P No.2911 of 2009 6 vouches for the signature of the defacto complainant in the application for composition, ie. C.M.Appl.No.8949 of 2009. 10. In the result: i) This revision petition is allowed; ii) The verdict of guilty is upheld in all other respects. But it is found that the offence under Section 326 I.P.C has not been made out and only the offence under Section 325 I.P.C has been made out; iii) Crl.M.A.No.8949 of 2009 is allowed. The composition of the offence punishable under Sections 341, 323, 324 and 325 I.P.C r/w 34 I.P.C allegedly committed by the petitioners is accepted after granting the requisite leave; iv) The acceptance of the composition shall have the effect of acquittal of the accused as stipulated in Section 320(8) Cr.P.C; v) The verdict of guilty, conviction and sentence imposed on the petitioners under Sections 341, 323, 324 and 325 I.P.C are hence set aside. (R.BASANT, JUDGE) rtr/-