IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 Crl.Rev.Pet.No. 2904 of 2006() ------------------------------ CRA.857/2004 of ADDL.SESSIONS COURT-II, KOZHIKODE CC.19/2003 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED --------------------------------------- 1. IBRAHIM, S/O.MAMMU, KARIYANDI VEEDU, AVIDANALLURE AMSOM, POOATH DESOM. 2. NASSAR, S/O.PARIYAKUTTY, KINIKKIATHAZHE VEEDU, AVIDANALLURE AMSOM, POONATH DESOM. 3. SAHIR, S/O.ASSAN, KARIMBINTHARIKKAL VEEDU, AVIDANALLURE AMSOM, POONATH DESOM. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE: --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SMT.P.K.RADHIKA PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2904 of 2006 -------------------------------------- Dated this the 4th day of August, 2009. ORDER This revision is in challenge of judgment of learned Additional Sessions Judge-II, Kozhikode in Crl.Apeal No.857 of 2004 confirming conviction and sentence of petitioners for offences punishable under Sections 341, 323 and 326 read with Section 34 of the Indian Penal Code (for short, “the IPC”). Case is that on 22.10.2002 at about 7 a.m. petitioners in furtherance of their common intention wrongfully restrained PW1 who was riding a cycle, voluntarily caused hurt/grievous hurt to him by beating with hands and hitting with stone (MO1). Learned magistrate found that offence under Section 323 of the IPC is not proved and acquitted petitioners of that charge. They were however convicted for offence punishable under Sections 341 and 326 read with Section 34 of the IPC. It is contended by learned counsel that conviction of petitioners is not legal and proper. It is the further contention that petitioners and PW1 who are close relatives have settled the dispute outside court and taking into consideration that settlement, leniency may be shown to the petitioners in the matter of sentence. PW1 has filed an affidavit in this Court stating that the dispute between him and petitioners is settled outside court and that he has no further grievance against them. He has no objection in acquitting petitioners for the charges found against them. Crl.R.P.No.2904/2006 2 2. Though prosecution examined PWs 1 to 5 to prove the alleged incident, only PW1 has given evidence in support. He stated that petitioners are related to him and on the allegation that he had peeped into the room of wife of petitioner No.1, on the relevant day, time and place while he was riding a cycle, petitioners restrained him. It is his further case that petitioner No.1 beat him on the face while petitioner No.3 beat and kicked him on the ribs. Petitioner No.2 hit him with a stone on the left shoulder. He claimed that he suffered a fracture on the left shoulder. PW8 examined PW1 on 22.10.2002 at about 12.30 p.m. and issued Ext.P3, wound certificate. It is seen that PW1 had complaint of pain over right and left sides of chest and over left shoulder. CT scan revealed a fracture of left parietal bone extending to the left temporal bone. PWs 6 and 7 are attestors in Ext.P2, mahazar for scene of occurrence as per which PW10, investigation officer seized the stone from the place of occurrence. 3. According to the learned counsel there is no reliable evidence to prove the alleged incident. It is also submitted by learned counsel that at any rate conviction of petitioners for offence punishable under Section 326 of the IPC is not sustainable since there is no case that PW1 was assaulted on the head by any of the petitioners. 4. I stated from the evidence of PW8 and Ext.P3 that fracture was on the left parietal bone. PW1 did not say that he was assaulted by any of the petitioners on that part of the body. In cross-examination PW1 stated that he was assaulted with stone only on the left shoulder. Therefore the fracture on Crl.R.P.No.2904/2006 3 the left parietal bone could not be referred to the assault by any of the petitioners. But, PW1 has given evidence though in cross examination that on being assaulted he fell down. This is clear from the first information statement also. That indicated that PW1 fell down in the course of the incident. Therefore the possibility is that PW1 suffered fracture of left parietal bond in the fall which was occasioned by the act of petitioners. Therefore conviction of petitioners under Section 326 of the IPC has to be altered to one under Section 325 of the IPC. There is no reason to interfere with the conviction for offence punishable under Section 341 of the IPC. 5. In the affidavit sworn by PW1, the defacto complainant and injured he has stated that the dispute is settled out of court, that he has no grievance against petitioners and that he has no objection in acquitting them. I have found that conviction of petitioners under Section 326 of the IPC has to be altered to Section 325 of the IPC. Latter offence is compoundable with the permission of the court. Offence under Section 341 of the IPC is also compoundable. In the circumstances I am inclined to accept the prayer of PW1 to compound the offence. Accordingly, composition entered between petitioners and PW1 is accepted and that will have the effect of acquittal of petitioners of the offences under Section 341 and 325 of the IPC, under Section 320 (8)of the Code of Criminal Procedure. Crl.R.P.No.2904/2006 4 Revision petition is disposed of accordingly. Fine if any deposited by the petitioners in the Trial court shall be refunded to them on application. THOMAS P.JOSEPH, Judge. cks