Shaju @ Shaji s/o Palliyil Krishnankutty Potta Desom, Potta Village, Mukundapuram Taluk; Babu s/o Parambenveettil Velayudhan Kalkikku Desom Kodassery Village; Dasan @ Kuppan s/o Kolothapilly Raman Kanalikunnu Desom Potta Village; Soman s/o Kattapparamban Velayudhan Kanalikunnu Desom Kodassery Village v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932 Crl.Rev.Pet.No. 748 of 2000 -------------------------------------------CRA.43/1998 of SESSIONS COURT, THRISSUR SC.70/1996 of ADDL. ASSISTANT SESSIONS COURT, IRINJALAKUDA .................... ## REVN. PETITIONER/ACCUSED/APPELLANT: --------------------------------------------------------------------- 1. SHAJU @ SHAJI S/O PALLIYIL KRISHNANKUTTY POTTA DESOM, POTTA VILLAGE MUKUNDAPURAM TALUK 2. BABU, S/O PARAMBENVEETTIL VELAYUDHAN KALKIKKU DESOM KODASSERY VILLAGE 3. DASAN @ KUPPAN, S/O KOLOTHAPILLY RAMAN KANALIKUNNU DESOM, POTTA VILLAGE 4. SOMAN, S/O KATTAPARAMBAN VELAYUDHAN KANALIKUNNU DESOM, KODASSERY VILLAGE MUKUNDAPURAM TALUK BY ADV. SMT.DHANYA P.ASOKAN ## RESPONDENTS/COMPLAINANT/RESPONDENT: -------------------------------------------------------------------------STATE OF KERALA REP BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM Addl.R2: SATHEESAN S/O VELU, POTTA VILLAGE MUKUNDAPURAM TALUK THRISSUR DISTRICT (Impleaded as per order dated 2-7-2010 in Crl.R.P.748/2000 and Crl.R.P.1745/2002) ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE FOR R1,4 SMT.P.MAYA FOR R1,4 PUBLIC PROSECUTOR SRI.JAIBY PAUL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/03/2011, ALONG WITH CRRP NO.1745 OF 2002, THE COURT ON 04/03/2011 PASSED THE FOLLOWING: ## **A.K.BASHEER, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.Nos.748 OF 2000 & 1745 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of March 2011 ## **ORDER** These two revision petitions are at the instance of the accused - six in number - who were charge sheeted by Chalakudy Police for offences punishable under Sections 143, 147, 148, 326 and 307 read with Section 149 Indian Penal Code. Petitioners were tried before the Additional Assistant Sessions Court, Irinjalakuda in S.C.No.70/96 and S.C.No.130/98. (I will refer to the reasons for the separate trial a little later). All the accused were found guilty of the charge levelled against them and convicted and sentenced to undergo rigorous imprisonment for seven years each and to pay a fine of Rs.10,000/- each for the offence punishable under Section 307 read with Section 149 IPC. In default of payment of fine, the accused were directed to undergo rigorous imprisonment for two years each. For the offence punishable under Section 326 read with Section 149 IPC, all the accused were convicted and sentenced to undergo rigorous imprisonment for seven years each. Similarly, for the offence punishable under Section 143 read with Section 149 IPC, they were sentenced to undergo imprisonment for one month each. For the offence punishable under Section 148 read with Section 149 IPC, the accused were sentenced to undergo rigorous imprisonment for one year each. No separate sentence was awarded under Section 147 IPC. The sentence was ordered to run concurrently. The entire fine amount, if recovered, was ordered to Crl.R.P.Nos.748/2000 & 1745/2002 :: 2 :: be paid to PW1 towards compensation. 2. The above order of conviction and sentence was challenged by the petitioners before the Sessions Court by way of two appeals. Both appeals were dismissed by the Sessions Court confirming the order of conviction and sentence. 3. When these revision petitions were taken up for consideration, it was submitted by learned counsel for the petitioners/accused that the matter has been compromised between the parties and accordingly the petition for composition under Section 320(8) of the Code of Criminal Procedure has been filed by them with a prayer to acquit the petitioners/accused. Learned counsel submitted that going by the nature of injuries sustained by PW1, it can be found that the ingredients of Sections 324 or 326 IPC were not attracted. Similarly, the evidence will further show that there was no warrant for attracting the offence punishable under Section 307 IPC at all. It is contended by the learned counsel that if these two Sections which will impede composition under Section 320(8) of the Code are taken off or deleted/substituted by Sections 324 or 326 IPC, the prayer for composition is liable to be allowed. In fact accused Nos.1, 2, 4 and 6 appeared before this court and submitted that the matter has been compromised. Accused Nos.3 and 5, namely, Babu S/o Velayudhan and Dasan @ Kuppan, S/o Raman are no more. PW1, the defacto complainant, was also present. He also did not dispute or contradict the assertion made by the petitioners. Crl.R.P.Nos.748/2000 & 1745/2002 :: 3 :: 4. I have carefully considered the prayer made by the petitioners to grant permission to compound the offences and acquit them. For that purpose, I have carefully considered the entire materials available on record, namely, oral and documentary evidence adduced by the prosecution in support of its case. Having done so, I am not at all satisfied that the prayer for composition can be allowed for reasons more than one. 5. In the case on hand, a worker/sympathizer of Bharathiya Janatha Party is the victim. He was allegedly assaulted and brutally attacked with wooden sticks and chopper in broad day light by the accused who admittedly belong to Communist Party of India (Marxist). The alleged attack on PW1 was carried out allegedly in retaliation to the murder of a party worker of Communist Party of India (Marxist) a month prior to this incident. 6. Political murders in this State have become a common phenomenon. If I may say so, northern districts in particular have been witnessing such cold blooded murders, maiming, etc. in the name of politics. These so called political workers or supporters do not seem to have any kind of compunction in slitting the throats of fellow human beings or chopping off the vital parts of their body in broad day light on public streets. There has also been an instances when a teacher was brutally attacked with deadly weapons, while he was taking class in a school in one of the northern districts in the State. The small children in that Lower Primary School had to be witness to this ghastly murder. I have referred to only one of the scores of such incidents Crl.R.P.Nos.748/2000 & 1745/2002 :: 4 :: that have taken place in this State during the last few years. As has been mentioned earlier, all these brutal acts of violence are being perpetrated by political parties (and of late by some religious fanatics as well) in the name of some so called “philosophy”, either religious or political. The political parties do not seem to be worried at all, since such instances continue to recur with nauseating regularity. Keeping in view the above disgusting scenario that is prevailing in the State and particularly after going through the evidence available on record, I am not inclined to grant permission for composition. 7. I have heard learned counsel for the petitioners quite elaborately and perused the entire records carefully. 8. The prosecution case may be briefly noticed. 9. On February 11, 1994 at about 8.30 am the defacto complainant (PW1) came to the arrack shop to supply arrack in a tempo van being driven by Sathyan (PW5) along with Ramakrishnan(PW2) and Shaju. When they reached the arrack shop the accused, six in number, came running towards the tempo van from the side of the arrack shop. They were armed with sticks and chopper etc. PW1, Satheesan, jumped down from the plat form of the tempo and ran towards the house of Appukkuttan. Sathyan, Ramakrishnan and Shaju also ran helter-skelter on seeing the accused. PW1 was chased by the accused towards the house of Appukkuttan. They were shouting at PW1 that he would be finished on that day. When PW1 reached the courtyard of the residence of Appukkuttan, accused no. 1 Jaisan and accused no. 2 Shaji Crl.R.P.Nos.748/2000 & 1745/2002 :: 5 :: beat PW1 with sticks on head. When PW1 fell down accused Nos. 3 and 4 beat him with sticks on his right leg below and above the knee. Shaji also beat him above his right knee. Accused No. 5 beat PW1 on the dorsum of his right hand and accused No. 6 cut PW1 below and above his left leg. Hearing the loud cries of PW1 several people had come running to the scene. Seeing the crowd the accused ran away from there. PW1 was taken to Medical Trust Hospital Ernakulam and treated there. 10. The police after completing investigation laid charge sheet against the six accused for the offence punishable under Sections 143, 147, 148, 326 and 307 read with Section 149 of the Indian Penal Code. 11. It may at once be noticed that accused No. 1 had been absconding for sometime and there was some confusion about the identity of accused number 4. Initially brother of accused number 4 was summoned before the Court. But later the mistake was rectified. For that reason trial of accused Nos. 1 and 4 had been held separately. In the meanwhile accused Nos. 2, 3, 5 and 6 were tried before the Assistant Sessions Judge's Court, Iringalakkuda in SC No.70/96 and all of them were found guilty and convicted and sentenced, as has been indicated in the earlier part of this order. Later, accused Nos. 1 and 4 were tried in SC No.130/98 and they were also convicted and sentenced by the trial court. Incidentally all these accused have been awarded identical sentence for the various offences for which they were tried. 12. Two appeals were preferred by the two sets of accused before the Crl.R.P.Nos.748/2000 & 1745/2002 :: 6 :: sessions court, Thrissur. Criminal Appeal No. 43/98 was preferred by accused numbers 2,3,5 and 6 which is the subject matter of criminal revision petition No. 48/2000. Accused numbers 1 and 4 challenged their order of conviction and sentence in criminal appeal No. 423/01 which is the subject matter of criminal R.P. No.1745/2002. The sessions court dismissed both appeals confirming the order of conviction and sentence passed by the trial. Hence this revision petition. 13. Defacto complainant was examined as PW1 in both cases. All other prime witnesses like Sathyan(tempo driver), Ramakrishnan and Shaji who accompanied the defacto complainant to the arrack shop in the tempo and the employee of the arrack shop (PW 4) apart from the Doctor who treated the defacto complainant etc. were examined in both cases, though their rank varied slightly. The trial court as well as the appellate court has primarily relied on the evidence of PW1, the defacto complainant/victim, in addition to the evidence of other eye witnesses like Ramakrishnan, Sathyan, Shaji etc. I may hasten to add that, these eye witnesses did not specifically refer to the overt acts of all the accused, but all of them unerringly asserted in unison that PW1 was chased by all these six accused. Of course, some of the witnesses identified two or three of the accused. I shall refer to the evidence of the eye witnesses shortly. 14. But before I take up the oral testimony of all these witnesses including that of PW1 it may be necessary to refer to the evidence of the Crl.R.P.Nos.748/2000 & 1745/2002 :: 7 :: Doctor who examined PW1 on his admission at the hospital and also who treated him along with other doctors in the hospital. 15. PW1 was assaulted by the accused on February 11, 1994. He was taken to the hospital at Ernakulam immediately. The doctor (PW13 in SC No. 130/98 and PW5 in SC No.70/96 ) examined PW1 at about 10.20 am. The wound certificate was marked in the case as Exhibit P10. As many as 24 injuries have been found on the body of the victim. X-Ray of various parts of the body revealed: 1. Fracture shaft of middle third of left femur 2. Fracture upper 3[rd] of shaft of left tibia 3. Spiral fracture of upper 3[rd] right tibia 4. Fracture shaft of left ulna distal third. 5. Fracture shaft of right 3[rd] mete carpel. 16. The Doctor in his examination before the Court stated that PW1 was admitted in the neuro intensive care unit and was later transfered to orthopedic Department. PW1 developed septicemia and showed renal shut down. The patient had undergone four heamo dialysis in the nephrology Department. 17. I do not propose to refer to the various other medical and surgical procedures spoken to by the Doctor in his evidence. Suffice it to say that PW1 was brutally attacked by his assailants resulting in grievous injuries not only on the lower part of his body but also on the head on the parietal occipital and scapular region as could be seen from injury numbers 1 to 5 in Crl.R.P.Nos.748/2000 & 1745/2002 :: 8 :: ## Exhibit P10. 18. PW1, the defacto complainant had identified all the six accused. He spoke about the overt acts of each one of the accused meticulously. The defence could not bring out any significant contradiction in his evidence. Learned counsel for the petitioners has fairly conceded that the evidence of PW1 cannot be brushed aside lightly. But according to the learned counsel the testimony of PW1 has to be treated only as a highly interested version. Admittedly PW1 was involved in some criminal cases. The defence had a case that he was involved in the attack against one of their party men. It is further contended by the learned counsel that the evidence of PW1 was not corroborated or supported by the evidence of the other so called eye witnesses. 19. The tempo driver namely Sathyan who had taken the defacto complainant and two of his colleagues to the arrack shop in his vehicle was examined in the two cases as PW3 and PW5. He deposed before the Court that he saw PW1 being assaulted in the courtyard of Appukkuttan's residence. He identified MO1 dhothi worn by PW1. Significantly he admitted that he had told the police that the six accused persons had assaulted the defacto complainant. He also identified his hand writing and signature in Exhibit P5(a), the relevant page of the trip sheet maintained in the vehicle. 20. The other person who accompanied the defacto complainant to the Crl.R.P.Nos.748/2000 & 1745/2002 :: 9 :: arrack shop namely Ramakrishnan was examined in the two cases as PW 2 and PW3. He stated that he saw PW1 being assaulted after being chased down to the residential compound of Appukkuttan. He further stated he ran away from the scene on seeing the incident. He disowned the statement given by him before the police implicating the accused. 21. The other witness who accompanied the defacto complainant to the arrack shop namely Shaju was examined as PW2 and PW13 in SC No.130/98 and 70/96 respectively. He also deposed that he saw the defacto complainant being chased by six people. They were shouting that the defacto complainant would be finished on that day. All these six people were carrying sticks in their hands. He also disowned his statement given to the police implicating the accused. 22. The other witness who saw the incident is one Poly who was a salesman in the arrack shop who was examined as PW4 in both cases. He stated that as soon as PW1 came to the arrack shop in the tempo van along with other witnesses referred to above, he was chased by six people. He further stated that he saw PW1 being beaten by these six people at the courtyard of the residential compound of Appukkuttan. But he further stated he could not identify the assailants. 23. I do not propose to referred to the other witnesses examined on the side of the prosecution since their evidence is not assailed by the petitioners for the obvious reason that these witnesses spoke about the other formalities Crl.R.P.Nos.748/2000 & 1745/2002 :: 10 :: like seizure of weapon, scene mahazer etc. It came on record that the investigating officers had recovered the alleged weapons used by accused from the scene of occurrence. The witnesses were also questioned by the investigating officers. All these witnesses had, according to the prosecution, implicated the six accused. But as has been noticed already some of the eye witnesses did not identify these accused before the court though they stated that they had seen PW1 being attacked with sticks at the courtyard of Appukkuttan. In short there is no iota of doubt that an incident in which six assailants had attacked PW1 with sticks and a chopper did in fact take place. It is in this context that the evidence of PW1 assumes importance. As has been mentioned already, the testimony of PW1 was not shaken in any manner. His evidence stood unchallenged. He identified all the six assailants. He talked about the overt acts of all these six accused. Therefore in my opinion the courts below were totally justified in accepting the prosecution case even though some other eye witnesses did not specifically identify the six assailants. In that view of the matter I do not find any reason to interfere with the finding of guilty entered by the court below against the petitioners who are now before me. 24. It may be noticed that accused No.3 and 5 are no more. Accused No.3 passed away on June 11, 2010 while accused No.5 died on January 02, 2008 during the pendency of this revision petition. Thus only accused Nos.1, 2, 4 and 6 are before this Court. Crl.R.P.Nos.748/2000 & 1745/2002 :: 11 :: 25. The question that remains to be considered is whether any interference is warranted with the sentence imposed on the petitioners for the various offences they have been convicted. As regards accused Nos.3 and 5, who passed away during the pendency of this revision petition, the sentence imposed against them has abated. 26. It is contended by the learned counsel for the petitioners that even if the conviction passed against the 4 petitioners is to be sustained, there is no justification for imposing such a heavy sentence on them, especially considering the nature of the injuries sustained by the de facto complainant (PW1). Yet another contention raised by the learned counsel is that the petitioners had settled the matter out of court with the de facto complainant. In fact, the compromise petition was filed after due deliberations with the de facto complainant. He had agreed to seek permission of this Court to compound the offences after such lengthy deliberations. Learned counsel would also hint at some other monetary element, which ultimately persuaded the de facto complainant to settle the matter. Learned counsel submits that the alleged crime having been committed more than 17 years ago, and the parties now living in harmony, this Court ought to have given permission to compound the offence. But, since the Court has already taken a view that composition cannot be permitted, this Court may at least show some leniency in the matter of sentence. 27. In this context, learned counsel has invited my attention to a few Crl.R.P.Nos.748/2000 & 1745/2002 :: 12 :: decisions, particularly in Jalaluddin v. State of U.P. (2002 (9) SCC 561), Ram Ekbal Upadhya & Ors. v. State of Bihar (2001 (10) SCC 233) and Ram Lal & Anr. v. State of J & K (1999 (2) SCC 213). In all these decisions the Apex Court had permitted composition of the offences involved in those cases. 28. Learned counsel submits that in Ram Ekbal Upadhya's case (supra) their Lordships had altered the conviction under Section 307 to one under Section 326, particularly in view of the settlement arrived at between the parties. A perusal of the above judgment will show that two rival versions were available about the occurrence in that case. The accused had also sustained some injuries in the alleged incident. It was in the above circumstances that their Lordships altered the sentence as indicated above, particularly keeping in view the peculiar facts and circumstances of that case. 29. In Ram Lal & Anr (supra) the Court had reminded itself that non compoundable offences falling outside the two tables in Section 320, cannot be compounded even with the permission of the court. But the Court had permitted to compound the offence under Section 326 IPC considering the fact that the appellant had already undergone imprisonment for six months. 30. It may be noticed that in the case on hand the major offence involved is one under Section 307 IPC and the petitioners in these two revision petitions have not undergone any substantial period of imprisonment so far, except accused No.2 who had suffered imprisonment for one year Crl.R.P.Nos.748/2000 & 1745/2002 :: 13 :: shortly after the commission of the crime. 31. In Jalaludeen (supra) it was noticed by the Apex Court that the occurrence had taken place way back in 1979 on a trivial issue and the complainant and the accused were close relations who were now living on cordial terms. It was therefore that the Apex Court had held that the sentence of 18 months be reduced to the period already undergone by the accused even though the offence under Section 326 was not compounded. 32. None of the cases referred to above will come to the aid of the accused. However having regard to the peculiar facts and circumstances of the case and keeping in view the fact that the crime was committed about 17 years ago, I am satisfied that the sentence of imprisonment for 7 years imposed on the petitioners for the major offences under Sections 307 and 326 IPC can be modified and reduced to Rigorous Imprisonment for 2 years each. The sentence imposed on the petitioners for the other offences is sustained. The sentence shall run concurrently. Set off of the sentence shall be allowed in accordance with law. Bail bonds are cancelled. Revision petitions are disposed of in the above terms. A.K.BASHEER, JUDGE jes Crl.R.P.Nos.748/2000 & 1745/2002 :: 14 :: ## **A.K.BASHEER, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.Nos.748 OF 2000 & 1745 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - **ORDER** Dated 4[th] March 2011