IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 Crl.Rev.Pet.No. 2066 of 2009() ------------------------------ CRA.201/2005 of ADDL. SESSIONS COURT (ADHOC) III, PALAKKAD .................... C.C.NO.504/98 OF JUDICIAL FIRST CLASS MAGISTRATE, ALATHUR. ... REVISION PETITIONER(S): APPELLANTS/ACCUSED: ----------------------------------------------------------------------------- 1. KESAVAN, S/O.MAYANDI, AGED 60 YEARS, CHEENAMKODE HOUSE, KANIMANGALAM, NENMARA, CHITTUR TALUK, PALAKKAD DISTRICT. 2. KALADHARAN, S/O.KESAVAN, AGED 36 YEARS, CHEENAMKODE HOUSE, KANIMANGALAM, NENMARA, CHITTUR TALUK, PALAKKAD DISTRICT. 3. KANEESH, S/O.KESAVAN, AGED 32 YEARS, CHEENAMKODE HOUSE, KANIMANGALAM, NENMARA, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): RESPONDENT:COMPLAINANT & STATE: ----------------------------------------------------------------- STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2066 of 2009 --------------------------------------- Dated this 30th day of June 2009 ORDER Nenmara police chargesheeted petitioners in crime No.36 of 1998 before learned Judicial First Class Magistrate, Alathur for offences punishable under Secs.324 and 326 r/w Sec.34 of the Penal Code (for short, “the Code”). Charge is that on 15-03-1998 at about 5.30 p.m at Kaniyamangalam, Chennemgode, petitioners in furtherance of their common intention attacked PWs.1,3 and 4 with chopper and stick and caused hurt/grevious hurt. Petitioners faced trial for the said offences in that court in C.C.No.544 of 1998. Prosecution examined PWs.1 to 13 and proved Exts.P-1 to P-10 and Mos 1 and 2 series. Petitioners examined DWs.1 and 2 and proved Exts.D-1 and D-2. Learned magistrate held that petitioners committed offences as alleged, convicted and sentenced them to undergo imprisonment for one year each under Sec.324 and two years each under Sec.326 of the Code. Petitioners challenged conviction and sentence in appeal. Learned Additional Sessions Judge (Adhoc No-3), Palakkad confirmed conviction of petitioner No.1 under Sec. 326 of the Code and modified Crl.R.P.No.2066 of 2009 2 his sentence as simple imprisonment for one year and payment of fine of Rs.5000/-. His conviction and sentence under Sec.324 r/w sec.34 of the Code were set aside. Conviction and sentence of petitioner Nos. 2 and 3 under Sec.326 r/w Sec.34 of the Code were set aside but their conviction under Sec.324 of IPC was confirmed and they were sentenced to pay fine of Rs.5000/- each and in default of payment to undergo simple imprisonment for three months each. Petitioners are aggrieved and have come up in revision. Learned counsel for petitioners argued that conviction and sentence of petitioners even as found by the appellate court is not sustainable. It is also argued by learned counsel that PWs.1 to 4 are close relatives of the petitioners and that they have settled their disputes. PWs.1 to 4 have filed an affidavit in this court stating that they have no objection to the case against petitioners being quashed. 2. So far as the incident is concerned, it is proved by the evidence of PWs.7 and 8 and Exts.P-3 to P-7 that PWs.1,2 and 4 sustained injuries. Exts.P-3 and P-7 show that PW.2 suffered grievous hurt as there was a fracture on the left leg. History of alleged cause of injury stated by the PWs.1,2 and 4 was that they were assaulted with Crl.R.P.No.2066 of 2009 3 chopper and stick. Evidence of PWs.7 and 8 is that the injuries found on PWs.1 to 4 could be caused as alleged. 3. So far as incident is concerned, PWs. 1 to 4 have given evidence. MO-1 is the chopper with which petitioner No.1 assaulted PW.2, MO-2 series are sticks with which petitioner Nos. 2 and 3 are stated to have assaulted PWs.1 and 4. In the course of investigation MOs-1 and 2 series were seized as per Ext.P2, mahazar. 4. As against the version of PWs.1 to 4 petitioners claimed that while they were going along the road in front of house of PW.2, PWs.1 to 4 waylaid and assaulted them. According to them, petitioner No.3 suffered serious injuries and was admitted in the hospital. It is to prove that, DWs.1 and 2 are examined and Ext.D1 and D2 are proved. As per that evidence, petitioner No.3 was brought to Government hospital, Nenmara on 15-03-1998 at about 7 p.m. The history and cause of injury was assault with stick and knife. As a fracture was suspected he was referred to the Government hospital, Alathur for treatment and on 25-03-1998 he was discharged. He had fracture on the spine of scapla right ear. Learned counsel argued that possibility of the incident occurring in the manner stated by the petitioner cannot be Crl.R.P.No.2066 of 2009 4 ruled out. 5. As to the incident there is the version of PWs.1 to 4. There is no reliable evidence to show that petitioner No.3 sustained injury in the course of incident. It is seen from Exts.D1 and D2 and evidence of DWs.1 and 2 that it is after two days of the incident that petitioner No.3 went to the Government hospital, Nenmara with history of assault. Evidence of PWs.1 to 4 do not show that petitioner No.3 sustain injuries at their hands. Even if it is assumed that in the course of incident petitioner No.3 also sustained some injury that cannot be referred to any act of PWs.1 to 4. Evidence shows that petitioner No.1 was attacked with chopper and petitioner Nos.2 and 3 were attacked with stick. In the course of incident possibility of petitioner No.3 sustaining injury from the weapons carried by petitioners cannot be ruled out. It is seen that immediately after the incident PWs.1, 2 and 4 were examined by PW.7. Then also they had a case that they were assaulted with chopper and stick. Courts below appreciated the evidence led by both sides and believed version of PWs. 1 to 4. I do not find think no reason to interfere with that concurrent finding. 6. Now the question for consideration is whether the request Crl.R.P.No.2066 of 2009 5 of petitioner to quash the proceedings can be accepted. Reliance is placed on the decision of the Supreme Court in Nikhil Merchant V CBI (2008(3) KLT 769). That was a case where investigation was on and at the stage, proceedings were quashed holding that in the light of settlement between parties, continuing that proceeding was futile. Since there was no possibility of evidence being let in on the side of the prosecution. In this case witnesses have already given evidence and that has been accepted by the courts below. I am not referring to this power of the court even in such circumstances to interfere in the ends of justice and quash the proceedings. In this case I am not satisfied that such an exercise is called for. However, I am satisfied that this a case were interference is required in the matter of sentence since parties have settled the dispute as seen from the affidavit sworn by the PWs.1 to 4 and since all concerned are relatives. Learned counsel for petitioners submit that pursuant to the statement reached between the parties, PWs.1 to 4 were acquitted in SC No. 550 of 2006 of Sessions court, Palakkad for allegedly causing injury on petitioner No.3. On a consideration of all relevant aspects I am inclined to think that imprisonment till rising of the court and compensation payable to Crl.R.P.No.2066 of 2009 6 PWs.1,2 and 4 is sufficient in the ends of justice. In holding so, I also bear in mind that except for the minor fracture suffered on his left leg, all other injuries suffered by PWs.1, 2 and 4 are minor. Resultantly this revision is allowed in part to the following extent. (1) Sentence imposed on petitioner No.1,2 and 3 as modified by the appellate court are set aside and they are sentenced to undergo simple imprisonment till rising of the court. (2) Petitioner No.1 is directed to deposit in the trial court for payment to PW.2, Rs.5000/- (Rupees Five Thousand Only) as compensation within one month from this day failing which he shall undergo simple imprisonment for two months. (3) Petitioner No.2 is directed to deposit in the trial court for payment to PW.1, Rs.2500/- (Rupees Two Thousand Five Hundred Only) by way of compensation within two months from this day failing which he shall undergo simple imprisonment for one month (4) Petitioner No.3 is directed to deposit in the trial court Rs. 2500/- (Rupees Two Thousand Five Hundred Only) as Crl.R.P.No.2066 of 2009 7 compensation for payment to PW4 within two months from this day failing which he shall undergo simple imprisonment for one month (5) It will be sufficient compliance of the direction for deposit of compensation if petitioner Nos. 1 to 3 paid the compensation to PWs. 1, 2 and 4 as aforesaid through counsel for petitioners in the trial court and PWs. 1, 2 and 4 filed statement in the trial court through their counsel within the aforesaid time, acknowledging receipt of compensation. (6) Petitioners shall appear in the trial court on 07-09-09 to receive the sentence. Warrant if any issued against the petitioners will stand in abeyance till 07.09.09. THOMAS P JOSEPH, JUDGE Sbna/