IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 Crl.Rev.Pet.No. 3055 of 2009() ------------------------------------ CRA.251/2000 of ADDL. SESSIONS COURT (ADHOC)-II, TRIVANDRUM SC.62/1992 of ASSISTANT SESSIONS COURT, ATTINGAL .................... REVN.PETITIONERS/APPELLANTS/ACCUSED 1,5 & 11 --------------------------------------------------------------- 1. KRISTHOSE CRISTOPHER, BIJU NIVAS, POONTHURA, SARKARA DESOM, SARKARA VILLAGE, THIRUVANANTHAPURAM DISTRICT. 2. KRISTHOSE ISON @ ISAAC, AMBILIL BHAVAN, SINKARATHOPU, SARKARA DESOM, SARKARA VILLAGE, THIRUVANANTHAPURAM DISTRICT. 3. JOSEPH CLEMENT, G.G.NIVAS, THARISUPARAMBIL, POONTHURA, SARKARA DESOM, SARKARA VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA RESPONDENT(S): -------------------- STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/10/2010, ALONG WITH CRRP NO. 3835 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ V.K.MOHANAN, J. ---------------------------- Crl.R.P.Nos.3055 & 3835 of 2009 --------------------------------------------- Dated this the 27th day of October, 2010. O R D E R As these two revision petitions are arising out of the same judgment dated 29.11.2008 in Crl.A.No.251/00 of the Court of Addl. Sessions Judge, Fast Track (Ad hoc)-II, Thiruvananthapuram, and the question of law and facts involved are same, these two revision petitions are heard together and being disposed of by this common order. Crl.R.P.3055/09 is preferred by A1, A5 and A11 whereas Crl.R.P.3835/09 is preferred by A6. 2. At the outset it has to be noted that, while the above revision petitions are pending in consideration of this court, the injured in this case preferred separate applications in the above two revision petitions ie., Crl.M.A.No.6719/10 in Crl.R.P.No.3055/09 and Crl.M.A.No.6718 of 2010 in Crl.R.P.No.3835 of 2009, for impleading themselves as 2 Crl.R.P.Nos.3055 & 3835 of 2009 additional respondents 2 to 4 in the above revision petitions. The above petitions are heard and allowed by a separate order in those revision petitions. Beside the above petition for impleading, Crl.M.A.No.6483/10 was also filed in Crl.R.P.No.3055/09 u/s.482 of Cr.P.C., for accepting the settlement/composition entered into between the parties. Along with the above petition, affidavits are seen, marked as Annexure A to C sworn in by respectively Pws.1, 3 and 4, who are the injured witnesses. Similarly, in Crl.R.P.No.3835/09 a similar petition as Crl.M.A.No.6498/10 is also filed for accepting the settlement/composition. No separate affidavit is seen filed along with the above Crl.M.A., since the original notarised affidavit of Pws.1, 3 and 4 have already produced in the connected revision petition. Though the impleading petitions are allowed, the petition to compound the offence can not be allowed since the offence alleged against the accused are inclusive of non- compoundable offences u/s.307 and 326. 3. The prosecution allegation is that, the accused 14 in 3 Crl.R.P.Nos.3055 & 3835 of 2009 number, due to political enemity towards Cws.1 and 2, formed into an unlawful assembly at about 3.30 p.m. on 24.6.1997 near Sinkarathoppe, on the public road leading from Anchuthengu- Muthalapozhy carrying deadly weapons like sword, with the common object of causing death of Cws.1 and 2, who are brothers and in furtherance of their common object, they wrongfully restrained Cws.1 and 2, when they were proceeding to their house in a motor bike and uttering that they shall not be allowed to go and they should be done away, the first accused cut CW2/PW1 thrice with a deadly weapon like sword on the back of his head and left palm and when he fell down the second accused cut him on his neck and left ear with a deadly sword and thereby caused injuries to him and the third accused with another sword cut CW2/PW1 on his right leg and the fourth accused cut CW2/PW1 on his left leg and left hip causing injuries and the eighth accused hit CW2/PW1 with an iron pipe on his right trunk and when Cws.3 and 4 rushed to the spot the 6th accused beat CW3 with a wooden log on his left leg and cut 4 Crl.R.P.Nos.3055 & 3835 of 2009 on his right leg with the sword causing bone fracture and the 12th accused with a wooden log beat CW3 over his left wrist causing injuries and the 13th accused cut CW4 with a sword below his left knee causing injury and bone fracture and the 14th accused cut CW4 with a sword below his right elbow causing injury and thereafter all the accused together damaged the motor cycle in which Cws.1 and 2 were travelling and thereby caused a loss of Rs.2,000/- to CW2. 4. Connected with the above incident and on getting intimation from the Medical College Hospital, the Sub Inspector of police, Anchuthengu police station proceeded to the medical college hospital and recorded the FI Statement of CW1 and registered Crime No.39/91 for the offence punishable u/s.143, 147, 148, 324, 326, 341, 427 and 307 r/w 149 of IPC. 5. After investigation in the above crime, the police had preferred a report before the Court of Judicial First Class Magistrate-Varkala, wherein C.P.No.38/91 was instituted and finally the said court committed the case to the Sessions Court, 5 Crl.R.P.Nos.3055 & 3835 of 2009 by its proceedings dated 23.1.1992 in C.P.No.38/91 and on receiving the file, S.C.No.62/92 was instituted in the Sessions Court-Thiruvananthapuram, which was made over to the Court of Assistant Sessions Judge-Attingal, for trial and disposal. 6. On the appearance of the accused, except accused Nos.9, 10 and 12, a formal charge was framed against them for the offences u/s.143, 147, 148, 324, 326, 341, 427 and 307 r/w 149 of IPC. During the trial Pws.1 to 13 were examined and Exts.P1 to P10 were marked from the side of the prosecution. From the side of the defence, though no witness was examined, Exts.D1 to D4(b) were marked. Beside that M.Os.1 to 8 were also identified and marked. Finally, the trial court by judgment dated 7.9.1993 convicted accused Nos.1 to 6 and 11 for the said offences, whereas the accused numbers 7, 8, 13 and 14 were acquitted of all the charges levelled against them. 7. Challenging the above conviction and sentence, the convicted accused preferred an appeal as Crl.A.No.232/93 before the Court of Sessions - Thiruvananthapuram, and by 6 Crl.R.P.Nos.3055 & 3835 of 2009 judgment dated 7.11.1997 the Court of 1st Addl. Sessions Judge-Thrivuvananthapuram, set aside the conviction and sentence imposed by the trial court and remanded the matter for fresh disposal with a direction to frame a fresh charge and it was directed that no denova trial is necessary and both the prosecution as well as the defence was given opportunity to further examine the witnesses already examined, in the light of the fresh charge to be framed, if the trial court found it necessary. 8. Thus after the remand of the matter as directed by the first judgment of the appellate court, a fresh charge was framed against the accused numbers 1, 5, 6 and 11 for the offence punishable u/s.143, 147, 148, 324, 326, 341, 427 and 307 r/w 149 of IPC. When the charge was read over and explained to the accused, they denied the same and consequently the trial was further proceeded but the witnesses were not recalled and re-examined further and no fresh evidence was adduced. Therefore the accused were not questioned subsequently. 7 Crl.R.P.Nos.3055 & 3835 of 2009 Thereafter the trial court by judgment dated 22.6.2000 in S.C.No.62/92 found that the accused numbers 1, 5, 6 and 11 are found guilty and accordingly they were convicted for the offence punishable u/s.143, 147, 148, 324, 326, 341, 427 and 307 r/w 149 of IPC and it was specifically found that those accused attempted to cause death of PW1 and inflicted injuries on Pws.3 and 4 who rushed to the scene of occurrence to rescue PW1. On such conviction the accused are sentenced to undergo simple imprisonment for 1 month u/s.341 of IPC and rigorous imprisonment for 3 months for the commission of offence u/s.143 and 6 months rigorous imprisonment for the offence u/s.427 and rigorous imprisonment for 1 year for the offence u/s.148 and 324 of IPC and rigorous imprisonment for 3 years and fine of Rs.1,000/- for the offence u/s.326 and rigorous imprisonment for 5 years and a fine of Rs.2,000/- for the offence u/s.307 of IPC and in default to pay fine, rigorous imprisonment for a further period of 3 months. 9. Challenging the above conviction and sentence, the 8 Crl.R.P.Nos.3055 & 3835 of 2009 revision petitioners in the above two revision petitions, preferred a joint appeal as Crl.A.No.251/00 before the Sessions Court- Thiruvananthapuram and by judgment dated 29.11.2008 in Crl.A.No.251/00 the Court of Addl.Sessions Judge, Fast Track (Ad hoc)-II, Thiruvananthapuram, dismissed the appeal confirming the conviction and sentence imposed against the revision petitioners. It is the above judgments of the appellate court as well as the trial court challenged in this two separate revision petitions. 10. I have heard Adv.Sri.Suman Chakravarthy, the learned counsel appearing for the revision petitioners in both these revision petitions and Adv.Sri.M.R.Rajesh, the counsel appearing for the respondents 2 to 4 who are impleaded as additional respondents in the above revision petitions, who is none other than the injured witnesses. I have also heard the learned Public Prosecutor. 11. Going by the prosecution allegations and the evidence and materials on record, it can be seen that the prosecution 9 Crl.R.P.Nos.3055 & 3835 of 2009 allegation is that due to the political rivalry between the accused and the prosecution witnesses viz., Pws.1 and 2 and in furtherance of the common object of causing death of the accused, they formed into an unlawful assembly at about 3.30 p.m. on 24.6.1991, restrained Pws.1 and 2 and inflicted injuries on Pws.1, 3 and 4. 12. Going by the evidence of the witnesses and the other materials produced by the prosecution it can be seen that the courts below is perfectly legal and justified in convicting he revision petitioners for the offences charged against them. On a close reading of the evidence of Pws.1 and 3, it can be seen that the above witnesses are the injured and they have clearly deposed in favour of the prosecution. Pws.1and 2 gave a clear account regarding the entire incident and according to them when both of them reached near the house of one Sugathan, the accused blocked and restrained them, uttering that they would finish off Pws.1 and 2 and with such utterness A1 inflicted cut injuries of PW1. The evidence of Pws.1and 2 further 10 Crl.R.P.Nos.3055 & 3835 of 2009 explained the overtact played by each of the accused. The evidence of Pws.1and 2, who are the injured, corroborate each other and support the prosecution case as such. The evidence of the injured viz., Pws.1and 2 are corroborated by the evidence of Pws.3 and 4. PW8 the doctor who examined Pws.1, 3 and 4, issued Exts.P2 to P4 wound certificate. As indicated earlier on getting the intimation from the Medical College Hospital, PW12 the Sub Inspector of Police attached to Anchuthengu police station proceeded to the Medical College Hospital and recorded Ext.P1 statement of PW2 at about 10.30 p.m. on 24.6.1991, the date of incident itself. The timely recorded statement of PW2 further disclosed as to how the witnesses viz., Pws.1, 3 and 4 have sustained the injuries. Thus the entire incident has been proved by the prosecution through contemporary documents like Ext.P1 FI Statement and Exts.P2 to P4 wound certificate and supported by the depositions of the injured witnesses. 13. Though I have heard the counsel for the revision petitioner and gone through the evidence and materials on 11 Crl.R.P.Nos.3055 & 3835 of 2009 record, I find no reason to interfere with the concurrent findings of the courts below. It is also relevant to note that as I indicated earlier during the first trial, the revision petitioners were found guilty and though the matter was remanded back to the trial court after the first judgment of the appellate court, the conviction of the revision petitioners were reiterated by the second judgment of the trial court, which findings of the trial court was subsequently confirmed by the second judgment of the appellate court. Under the above procedural and legal background, I find no reason to interfere with the concurrent findings of the court below and the order of conviction recorded by the courts below and hence the conviction recorded by the courts below against the revision petitioners are confirmed. 14. Regarding the sentence, the learned counsel for the revision petitioners submitted that the incident was taken place about 20 years back that is on 24.6.1991 and in the light of the settlement of the dispute between the contesting parties, a lenient view may be taken. The above submission of the 12 Crl.R.P.Nos.3055 & 3835 of 2009 counsel for the revision petitioners is not controverted by the counsel for the injured witnesses, who are additional respondents 2 to 4 in the above revision petitions. Thus according to me, the said submission requires serious consideration. 15. The Honourable Apex court has held in a decision reported in Ishwarlal Vs. State of Madhya Pradesh [(2008) 15 Supreme Court Cases 671] that, “though offence not compoundable, while imposing sentence, the composition of the offence between the parties can be considered while fixing the sentence.” Similarly in a decision of the apex Court reported in Ram Pujan & Ors. Vs. State of Uttar Pradesh [(1973) 2 SCC 456] has held that, “the major offence for which the appellants have been convicted is no doubt non- compoundable, but the fact of compromise can be taken into account in determining the quantum of sentence.” In the present case as revealed from the affidavit filed by the injured witnesses, which produced in Crl.R.P.No.3055/09 it can 13 Crl.R.P.Nos.3055 & 3835 of 2009 be seen that the matter has been settled between the contesting parties and the injured have no further grievance against the accused. It is also relevant to note that the revision petitioner were arrested on 14.7.1991 and they were released on bail on 19.7.1991. In the light of the fact that the parties have settled their dispute amicably and the incident was taken place about 20 years back, according to me it is unjust and unreasonable to impose sentence of further imprisonment against the revision petitioners and to send them to jail at this belated stage. As the matter has been already settled between the parties, in the light of the above decisions of the apex Court, I am of the view that, the period of imprisonment which the revision petitioners have already undergone during the pre-trial stage can be fixed as the sentence for the offences for which they are convicted. Thus while confirming the conviction of the revision petitioners u/s.148, 324, 326, 341, 427 and 307 r/w 149 of IPC, in modification of the sentence imposed by the courts below against each of the accused, the sentence of imprisonment is 14 Crl.R.P.Nos.3055 & 3835 of 2009 reduced to 5 days simple imprisonment for each of the offence u/s.148, 324, 326, 341, 427 and 307 r/w 149 of IPC and it is further ordered to run the said sentence concurrently and set off is allowed u/s.428 of Cr.P.C. The sentence of fine imposed is confirmed. In the result, these revision petitions are disposed of confirming the conviction of the revision petitioners u/s.143, 147, 148, 324, 326, 341, 427 and 307 r/w 149 of IPC but subject to the modification with respect to the substantial sentence alone. V.K.MOHANAN, Judge. ami/