FLORENCE KALA Vs. BEN NET AND STATE

JUDGEMENT

(1.) Since both the petitions are in respect of the same incident and in respect of the case and counter case arose out of the same transaction, they are clubbed together, and my consent they were taken together and disposed of.

(2.) Cr1. M.P. No. 17437 of 1990 was filed to quash the charge in C.C. No. 207 of 1990, on the file of the Judicial Magistrate No. I, Kuzhithurai. Cr1. M.P. No. 14984 of 1990 is filed to quash the proceedings in C.C. No. 241 of 1990, on the file of the Judicial Magistrate No. I, Kuzhithurai, against accused 3, 7 and 10. C.C. No. 207 of 1990 was filed against the rest of the accused in respect of the charge-sheet filed in that case by the police. So far as the case in C.C. No. 207 of 1990 is concerned, the charge against the accused was that on account of prior enmity on 15.2.1990 at about 20.30 hours, the accused A. 1 was armed with vettaruval, A. 2 and A. 3 were armed with iron rods, A. 4 was armed with knife and A. 5 to A. 7 were armed with sticks and they formed themselves into an unlawful assembly and A. 1, A. 2, A. 6 and A. 7 damaged the roofs, tiles and the walls of the houses of witnesses 1, 2, 6 and 7 and during that transaction, when witness No.1 intervened, he was beaten with an iron rod by A. 3 on his left side of the ear, left elbow and left thigh. Witness No.2 was beaten by A. 5 with stick in the right hand and A. 10 also beat witness No.2 on the back. Witness No.3 was cut with aruval by A. 1 and thereby witness No.3 sustained a cut injury between left eye-brow upto nose. A.9 beat witness No.3 with stick on the back. A. 1 cut with vettaruval witness No.4 and caused injury below the right eye. A.6 beat witness No.4 with stick above the right eye. A.2 beat witness No.5 with iron rod on the right elbow. A. 7 beat witness No. 5 on the left chest and A. 8 beat witness No.5 on the back. Thus, the accused committed offences punishable under sections 147, 148,323,324,326 and 427 of Indian Penal Code. The counter case put forward by the accused was that the victims in the case attacked these petitioners, who are accused in that case, indiscriminately with dangerous weapons and caused serious injuries and four persons in their group also sustained injuries and on a complaint given by them to the police, the police registered a case and 7 of them were charged for offences under Sections 148,323, and 324 of the Indian Penal Code and since three persons were omitted, a case was also filed against the other three persons and hence these three cases now came up for trial before the Magistrate.

(3.) At the time when these petitions were taken up, it is submitted that the accused are relations and they settled the matter in the village and they are now living amicably and the complainant in both the cases filed affidavit praying for permission to compound the offences and also to quash the cases. Except Section 326, the other offences are compoundable in both the cases. As regards section 326, it is brought to the notice of this court that only witness No.3 sustained injury below the eye upto the nose but that is stated to have been caused with aruval but oilly due to stone and stick. It was also brought to the notice of the court that the aruval was not seized and further the description of the weapon has also not been given. In the circumstances, even though the two doctors - one who examined and the other who took X-ray, said that it is grievous injury, since the weapon of the offence is not found to be a dangerous weapon, the offence should be only under Section 325 of the Indian Penal Code and not under Section 326 of the Indian Penal Code. The said offence is compoundable with the permission of the court. In respect of this contention, the learned counsel drew the attention of this court to two decisions of this court. The first decision is, Ponni alias Ponibas v. Savarimuthu Nadar, which reads as follows: