IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 Crl.Rev.Pet.No. 1132 of 2005 ---------------------------------- (CRA.141/2001 of ADDL.DISTRICT AND SESSIONS JUDGE (ADHOC), FAST TRACK COURT-II, PATHANAMTHITTA AND CC.299/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI) .................... REVN. PETITIONER(S)/APPELLANT NOS.1 TO 5/ACCUSED NOS.2 TO 6: ------------------------------------------------------------------------------ 1. THOMAS, S/O.KOCHUKUTTY, PEEDIKAVADAKKETHIL HOUSE, PEZHUMPARA, VADASSERIKKARA VILLAGE, RANNY TALUK. 2. BINOY, S/O.VISWANATHAN, UTICKAMANNIL HOUSE, PEZHUMPARA, VADASSERIKKARA VILLAGE. 3. SANTHOSH KUMAR, S/O.GANGADHARAN, CHIRACKAL HOUSE, PEZHUMPARA VADASSERIKKARA VILLAGE, RANNY. 4. RAJAPPAN NAIR, S/O.KOCHUKUNJU NAIR, NADUVILEMURIYIL HOUSE, PEZHUMPARA, VADASSERIKKARA. 5. JOHN P.JOHN, S/O.JOHN, PUTHENKADAVIL, MANIYAR, VADASSERIKKARA VILLAGE, RANNI TALUK. BY ADV. SRI.S.MUHAMMED HANEEFF SMT.HASEENA BEEGUM RESPONDENT(S)/RESPONDENT/RESPONDENT: ---------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, PERUNAD POLICE STATION (CRIME NO.185/1996 OF PERUNAD POLICE STATION), REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDL.R-2. A.V.PUSHPANGADHAN, S/O.VASU, AGED 59, ATHAMPANAMKUZHIYIL,9,PERUMPARA, VADASSERIKKARA, PATHANAMTHITTA DISTRICT IS IMPLEADED AS PER ORDER ON CRL.M.A.NO.10373 OF 2009 DATED 8.3.2010. BY ADV. SMT.NAVA VARGHESE FOR ADDL.R2 BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU FOR R1. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 1132 of 2005 B --------------------------------------------- Dated this the 8th day of March, 2010 J U D G M E N T The revision petitioners are accused Nos.2 to 6 in C.C.No.299 of 1997 on the file of the Judicial First Class Magistrate Court, Ranny. 2. C.C.No.299 of 1997 was instituted upon the final report filed by the Police after investigation in Crime No.185 of 1996 of the Perunad Police Station for the offences punishable under Sections 143,147,148,323,324,326 read with 149 I.P.C. The prosecution case is that at 2.30 p.m. on 10.10.1996, all the accused formed themselves into an unlawful assembly armed with deadly weapons and committed rioting and caused hurt and grievous hurt to PW4 by cutting with the sword sticks and beating with the iron rods and handles of the axe on the public road. During the trial, Pws.1 to 8 were examined and Exts.P1 to P5 were marked from the side of the prosecution. Mos.1 to Crl.R.PNO.1132 of 2006 :-2-: 5 were also identified and marked. No evidence either oral or documentary was produced from the side of the defence. On the basis of the evidence on record, the trial court found that the accused are guilty for the offences which they were charged. On conviction of the accused, they are sentenced to undergo rigorous imprisonment for three months each for offences punishable under Section 143 read with Section 149 I.P.C., to undergo rigorous imprisonment for six months each for offences punishable under Section 147 read with Section 149 I.P.C., to undergo rigorous imprisonment for six months each for offences punishable under Section 148 read with 149 I.P.C, to undergo rigorous imprisonment for six months each for offences punishable under Section 323 read with Section 149 I.P.C., and to undergo rigorous imprisonment for one year each for offences punishable under Section 324 read with Section 149 I.P.C. The revision petitioners are the only accused who faced the trial. As the first accused was absconding, the case against him was Crl.R.PNO.1132 of 2006 :-3-: refiled as C.C.No.409 of 2001. Though the revision petitioners were sentenced separately in each counts, the sentences were ordered to run concurrently. 3. Though the revision petitioners have challenged the above conviction and sentence by filing Crl.A.No.141 of 2001 before the Additional District and Sessions Judge (ADHOC), Fast Track Court-II, Pathanamthitta, by judgment dated 23.3.2005 in Crl.A.No.141 of 2001, the said appeal was dismissed. Thus, aggrieved by the judgments of the trial court as well as the lower appellate court, the revision petitioners who are accused Nos.2 to 6 approached this Court by filing the present revision petition. 4. I have heard Sri.Muhammed Haneef, learned counsel appearing for the revision petitioner as well as the learned Public Prosecutor. 5. During the hearing of the revision petition, the learned counsel for the revision petitioners submitted that while the above revision petition is pending before this Crl.R.PNO.1132 of 2006 :-4-: Court, the matter has been settled out of court between the revision petitioners as well as the de facto complainant, PW1. In support of the above submission, the learned counsel invited my attention to an affidavit filed by the de facto complainant, PW1. As the matter has been settled out of court, a separate petition under Section 482, i.e., Crl.M.A.No.10374 of 2009 was filed with a prayer to compound the offence, under which the revision petitioners are stood convicted and sentenced. 6. In support of the above prayer for composition and acquittal, the learned counsel pointed out that this Court by order dated 6.11.2009 in Crl.M.C.No.3209 of 2009 quashed C.C.No.409 of 2001 of the Judicial First Class Magistrate Court, Ranni and acquitted the first accused, which is a case refiled on completion of the trial against the revision petitioners in C.C.No.299 of 1997 as the first accused in the very same crime, at that time, was absconding. Therefore, according to the learned counsel, his prayer may be allowed Crl.R.PNO.1132 of 2006 :-5-: as the first accused has already been acquitted, and considering the fact that the matter has already been settled out of court. Learned counsel also placed reliance upon the decision of this Court reported in Biju Eappen v. State of Kerala (2010 (1) KLT 289) and the learned single Judge referred the decision of the Apex Court reported in Madan Mohan Abbot v. State of Punjab (2008(3) KLT 19)(SC). 7. It is true that the matter has been settled out of court between the de facto complainant/PW1 and the revision petitioners in this case as evidenced by the affidavit filed by him before this Court through his counsel and as submitted by the counsel for the the revision petitioners. Admittedly, the substantial offences involved in the case are not classified as offences permitted to be compounded as per the schedule contained in Section 320 of Cr.P.C. It is also relevant to note that two fact finding courts have already found against the revision petitioners as such and those orders of conviction and sentence are final, unless the Crl.R.PNO.1132 of 2006 :-6-: same are set aside. I am not proposed to grant the prayer as sought for by the parties since while exercising the revisional jurisdiction of this Court against an order of conviction and sentence, especially when the offences are not compoundable, the same cannot be permitted to be compounded. If the said prayer is allowed, that will amount to by-passing the revisional jurisdiction of this Court, which is legally and procedurally impermissible. Of course, in the light of the decisions referred to by the learned counsel, this Court, while exercising the jurisdiction under Section 482 of the Cr.P.C., can quash a complaint or case instituted upon the police report even though the offences involved are non- compoundable. That is entirely a different jurisdiction. Therefore, I am not inclined to allow the prayer contained in Crl.M.A.No.10374 of 2009. 8. Though the trial court as well as the lower appellate court have found against the revision petitioners, the learned counsel for them submitted that there is no Crl.R.PNO.1132 of 2006 :-7-: independent evidence to support the prosecution case and the trial court as well as the lower appellate court went in wrong in discarding the evidence of PW2 and other three independent occurrence witnesses. Going by the judgment of the courts below, it can be seen that in order to connect the revision petitioners/accused with the alleged incident, if the evidence of PW1 is excluded, absolutely there is no independent evidence and any other materials. Learned counsel pointed out that the injuries noted on the victim as per Exts.P4 and P5 are not sufficient to hold that the accused has inflicted any grievous hurt. It is also relevant to note that no weapon was recovered from the Police during their investigation and as such, there is no material and evidence on record to show that which was the weapon used to inflict the injuries noted in Exts.P4 and P5. The absence of above materials assumes importance, especially there is no independent evidence other than the interested version of the injured. PW2 as such has not supported the Crl.R.PNO.1132 of 2006 :-8-: prosecution case and the infirmities and contradictions pointed out by the defence are also material in nature which would show that the prosecution has not succeeded in establishing the case beyond reasonable doubt consequent to which the accused is entitled an order of acquittal setting aside the conviction recorded by the trial court as well as the lower appellate court. Accordingly, the revision petitioners are acquitted of all the charges levelled against them and the bail bond, if any, executed by them are cancelled and they are set at liberty. This Crl.R.P. is allowed as above. sd/- V.K.Mohanan, Judge MBS/ -true copy- P.S.TO JUDGE. Crl.R.PNO.1132 of 2006 :-9-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T Crl.R.PNO.1132 of 2006 :-10-: DATED: -2-2010 Crl.R.PNO.1132 of 2006 :-11-: