IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 Crl.Rev.Pet.No. 704 of 2005() ----------------------------- CRA.34/2000 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD CC.655/1995 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- U.M.BASHEER, S/O. MUHAMMED, MELPARAMBU, CHALAYAMKODE, KALNAD VILLAGE. BY ADV. SRI.M.THAMBAN SMT.T.SUDHAMANI RESPONDENT(S): RESPONDENTS: -------------------------- 1. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. ADDL.R2 IMPLEADED: 2. KAPPIL ABDULLA, S/O.ABDUL RAHIMAN, AGED 63 YEARS, RESIDING AT CHALIYAM KODE HOUSE, KALANAD P.O., CHEMNAD VILLAGE, KASARAGOD TALUK AND KASARAGOD DIST. (ADDL.R2 IS IMPLEADED AS PER ORDER DATED 27.8.2009 ON CRL.M.A.NO.8380/2009) PUBLIC PROSECUTOR FOR R1 ADV. SRI.T.MADHU FOR ADDL.R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.704 of 2005 -------------------------------------- Dated this the 18th day of September, 2009. ORDER This revision arises from the judgment of learned Additional Sessions Judge (Adhoc-I), Kasaragod in Crl.Appeal No.34 of 2000 modifying conviction and sentence of petitioner. Petitioner faced trial in the court of learned Judicial First Class Magistrate-II, Hosdurg in C.C.No. 655 of 1995 for offences punishable under Sections 448 and 326 of the Indian Penal Code (for short, “the Code”). Case is that on 26.8.1995 at about 12 p.m. petitioner trespassed into the house of CW3 and voluntarily caused grievous hurt to PW1 by beating him with a wooden plank (MO1). In the incident PW1 lost four teeth. He was taken to the hospital where PW6 examined him and issued Ext.P5, wound certificate. PW2 is the wife of PW1. PWs 1 and 2 gave evidence regarding the alleged incident. They claimed that they had been to the house of CW3 to visit CW3 who was ailing. They also gave evidence about petitioner assaulting PW1 with MO1, wooden plank and PW1 loosing the teeth. MO2 series are the teeth. MO3 is the blood stained shirt of PW1. PWs 2 and 4 took PW1 to the hospital. At the hospital PW1 gave first information (Ext.P1) regarding the incident. PW5, Head Constable registered the case. PW7 prepared Ext.P3, mahazar for scene of occurrence. He seized teeth and blood stained shirt of PW1 (MO2 series and MO3 respectively) as per Ext.P3. Learned magistrate accepted the prosecution case and found petitioner guilty of the offences punishable under Sections 448 Crl.R.P.No.704/2005 2 and 326 of the Code and sentenced him to undergo rigorous imprisonment for three months. In appeal, appellate court acquitted of petitioner of the charge under Section 448 while confirming conviction under Section 326 of the Code. Sentence awarded for offence punishable under Section 326 of the Code was not interfered with. It is contended by learned counsel that conviction and sentence under Section 326 of the Code is not sustainable, in that there is no reliable evidence to prove the incident. It is also contended that PW1 and petitioner are closely related, they have settled the dispute between them and that PW1 has filed an affidavit (attested by a Notary Public) stating that since the matter is settled between them he has no objection in acquitting petitioner. Learned counsel for petitioner submits that this Court, in view of the decisions of the Apex Court in Madan Mohan Abbot v. State of Punjab (2008 (3) KLT 19), Manoj Sharma v. State (2008 (4) KLT 417) and Nikil Merchant v. CBI (2008 (3) KLT 769) can exercise the inherent power under Section 482 of the Code of Criminal Procedure. 2. Decisions referred to by the learned counsel concerned quashing proceedings at the initial stage based on compromise between the parties on the ground that there is no possibility of evidence being let in, in view of the compromises. In this case, prosecution has already let in sufficient evidence on which the conviction has been entered. Therefore, in my view it is not open to this Court to quash proceedings under Section 482 of the Code of Criminal Crl.R.P.No.704/2005 3 Procedure. But, ofcourse if conviction of the petitioner is confirmed, the fact of settlement between the parties will be taken into consideration in the matter of awarding sentence. 3. So far as incident is concerned, there is evidence of PWs 1 and 2. Fact that PW1 suffered grievous hurt is proved by evidence of PWs 1, 2, 4 and 6 and Ext.P5. MO2 series, teeth which fell down due to the assault is also been produced by prosecution. On going through the judgments under challenge and hearing learned counsel I do not find reason to interfere with the conviction of petitioner for offence punishable under Section 326 of the Code as confirmed by the appellate court. 4. What remained for consideration is whether sentence awarded is excessive. I stated that according to PW1 who has been impleaded in this revision as additional respondent No.2, he has settled the matter with the petitioner. It is submitted by learned counsel that petitioner and additional respondent No.2 (PW1) are closely related. It is also stated that the parties are now leading a normal, peaceful and cordial life. In that situation I do not consider it necessary to send the petitioner to jail and destroy the cordial relationship between the parties that now exists. I am satisfied that simple imprisonment till rising of the court is sufficient in the ends of justice Crl.R.P.No.704/2005 4 5. However additional respondent No.2 (PW1) who suffered grievous hurt at the hands of petitioner cannot be forgotten. Evidence shows that additional respondent No.2 lost four teeth in the incident. Petitioner has to compensate him. Having regard to the nature of the hurt suffered by additional respondent No.2, pain and suffering he has undergone and the treatment expenses he has incurred I direct that petitioner will pay Rs.35,000/- (Rupees Thirtyfive thousand only) by way of compensation to additional respondent No.2 failing which petitioner has to undergo simple imprisonment for three months. Resultantly, this revision petition is allowed in part to the following extent: i. Substantive sentence awarded to the petitioner is modified as simple imprisonment till rising of the court. ii. Petitioner is directed to deposit in the trial court for payment to additional respondent No.1 Rs.35,000/- (Rupees Thirtyfive thousand only) by way of compensation under Section 357(3) of the Code of Criminal Procedure within three months from this day failing which petitioner shall undergo simple imprisonment for three months. iii. It is made clear that it shall be sufficient compliance with the direction for deposit of compensation if petitioner paid the amount directly to additional respondent No.2 and additional respondent No.2 filed a statement in the trial court acknowledging receipt of the amount within the above said period. Crl.R.P.No.704/2005 5 Petitioner shall appear in the trial court on 21.12.2009 to receive the sentence and default sentence (in case compensation as aforesaid is not paid within the time specified). Until then execution of warrant if any against the petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks