IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 Crl.Rev.Pet.No. 666 of 2000() ---------------------------------------- CRA.275/1998 of SESSIONS COURT, THRISSUR CC.81/1994 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... REVN. PETITIONER: IST ACCUSED ---------------------------- JOHNSON, S/O. ANTHONY, VENDOKARNA HOUSE, AMBALLUR, MUKUNDAPURAM , THRISSUR DISTRICT. BY ADV. SRI.C.K.SAJEEV SMT.T.B.MINI RESPONDENT/ COMPLAINANT -------------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *ADDL. R2 IMPLEADED. 2. SREEDHARAN, S/O. VELAYUDHAN, NAMBIYATH HOUSE, UPPUZHI, KODALI, THRISSUR DIST. ADDL. R2 IS IMPLEADED AS PER ORDER DT.26./09.2008 IN CRL.MP. NO.9985/2008 PUBLIC PROSECUTORSRI.PUZHAKKARA MUHAMMED DR.V.N.SANKARJEE FOR ADDL.R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/09/2008, ALONG WITH CRRP NO. 832 OF 2000 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.RP. NO.666/2000 ORDER ON CRL.MP. NO.3656/2000 IN CRL.RP. NO.666/2000 DISMISSED 26.09.2008 SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- Crl.R.P.Nos.666 & 832 OF 2000 ------------------------------------------- Dated this the 26th day of September, 2008 O R D E R Five persons were arrayed as accused in C.C.No.81/94 on the file of the Judicial First Class Magistrate, Iringalakkuda alleging offences punishable under Sections 143, 147, 148, 323, 324 and 326 read with Section 149 IPC. Accused persons 4 and 5 were acquitted by the court of first instance. The first accused was convicted for offence punishable under Section 326 along with the other provisions. Accused persons 2 and 3 were convicted under Section 324 IPC. 2. The allegation was that the five accused persons formed into an unlawful assembly at 7.15 a.m. on 11.2.1994, with the common object of attacking and causing grievous hurt to PW1; following which, armed with MO.1 series iron rods and MO.2 cycle chain, the victim was attacked and injured. The prosecution case was that the members of the unlawful assembly were active workers of a trade union, which had called for a Crl.RP.666/00 & 832/00 Page numbers strike in a Tile factory; in which, PW1 did not participate, and that gave an impression to the assailants that he was colluding with the management to defuse the strike. 3. After hearing the evidence of PWs.1 to 15 and with the documentary evidence and material objects before it, and after having heard the accused persons under Section 313 Cr.P.C., the learned Magistrate concluded that the first accused had committed offence punishable under Section 326 and accused persons 2 and 3 under Section 324. As already noticed, accused persons 4 and 5 were acquitted. 4. The court of session, in Criminal Appeal No.275/98, confirmed the conviction of accused persons 1 to 3. Hence, these revision petitions; Crl.R.P.No.666/00 by the first accused and Crl.R.P.No.832/00 by accused persons 2 and 3. 5. Learned counsel for the revision petitioners strongly canvassed that the case of the first accused that he was not Crl.RP.666/00 & 832/00 Page numbers present in the scene of occurrence ought to have been accepted, having regard to the fact that he was hospitalised and that the evidence of DWs.1 and 2 and Exts.D1 and D2 ought to have been acted upon at least to give him the benefit of doubt. It is further argued that there was no proper identification in terms of law and the accused persons have been arrayed without appropriate investigation by settling their identity and that, having regard to the nature of the offence as stated by the prosecution, it was imperative that the identity of the accused persons ought to have been established beyond any shadow of doubt. It is also argued that the weapon allegedly used by the first accused was not identified. 6. With the passage of time, it also appears that even if it were a case of trade union rivalry, the parties have apparently compromised and the defacto complainant, viz., the victim, PW1 has filed Crl.M.A.9985/08 in Crl.R.P.666/00 and Crl.M.A. 9987/08 in Crl.R.P.832/00 seeking impleadment for the purpose of placing on record the fact that the matter could be considered Crl.RP.666/00 & 832/00 Page numbers for compounding and the revisional court may grant leave to compound the offences as those falling only under Section 324, particularly when it is doubtful that the conviction under Section 326 IPC would be sustained. 7. Having considered the materials on record and having heard learned counsel for parties, including the private counsel appearing for PW1, I am satisfied that on the materials on record, the first accused was entitled to have the conviction and sentence under Section 326 vacated and to have the conviction and sentence imposed on him to be confined to be only under Section 324 IPC. With that, I may also note that the first accused had been detained for a period of 7 days during the investigation and such detention, if set off, could also be treated as sufficient to secure the ends of justice in the circumstances. I am satisfied that the conviction and sentence imposed on the first accused is liable to be altered as one under Section 324, by vacating the conviction and sentence under Section 326 and imposing on him conviction and sentence for offence punishable Crl.RP.666/00 & 832/00 Page numbers under Section 324. Also, I am satisfied this is a fit case where this Court, during the course of the revision, could grant leave for compounding the offences. 8. For the aforesaid reasons, Crl.M.A.No.9986/08 in Crl.R.P. 666/00 and Crl.M.P.Nos.9988/08 & 9989/08 in Crl.R.P.832/00 are entitled to be allowed. In the result, the conviction and sentence imposed on the first accused under Section 326 IPC is vacated and the conviction and sentence under Section 324 are discharged having regard to the leave granted for compounding the offences and such compounding shall have the effect of acquittal of all the accused persons/revision petitioners. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb. Crl.RP.666/00 & 832/00 Page numbers ======================= THOTTATHIL B. RADHAKRISHNAN, J Crl.R.P.Nos.666 & 832 OF 2000 O R D E R 26TH SEPTEMBER, 2008. =======================