Judgment :- K.V. Sankaranarayanan. J. The petitioners in Crl. M. C. 2075/96 was the revision petitioner in Crl. R.P. 736/92' and the second party in Crl. R.C. 84/92. He was the accused person in C.C.153/87 on the file of the Chief Judicial Magistrate, Thodupuzha, a case charged by the Sub Inspector of Police, Idukki for an offence under S.326 IPC. The prosecution case was that on 17.10.1986 at about 8 p.m. the accused person caused a stab injury to P.W. 1, George Alias Joy from the court-yard of house No. VI/137 in Vazhathope Panchayat belonging to his brother Parackal Mathai, causing permanent loss of sight in the right eye and thus caused grievous hurt punishable under S.326 IPC. P.W. 1, who sustained the injury was taken to the Thadiambatt hospital and from there to the Thodupuzha hospital and then to the Medical College Hospital, Kottayam. He gave Ext. P.I, first information statement to the Gandhinagar Police. On that basis Ext. P4, F.I.R. was registered by the Gandhinagar Police and later made over to the Idukki Police Station, where it was registered as Crime 160/86 Ext. P5, The case was investigated by P.Ws. 8 to 10, the Head Constables and P.W. 11, the then Sub Inspector, Idukki, who completed the investigation and filed the charge sheet. In support of the prosecution case, P.Ws.1 to 11 were examined and Exts. P1 to P7 were marked. D.W.1 was examined and Exts. Dl and D2 were marked for the defence also. On a consideration of the evidence, the learned Magistrate found the accused guilty under S.326 IPC and sentenced him to simple imprisonment for 2 years and to pay a fine of Rs. 5,000/-. In Crl. A. 20/90 to the Sessions Court, Thodupuzha, the learned Additional Sessions Judge confirmed the conviction and sentence by judgment dated 25.7.1992. Crl. R.P. 736/92 was preferred by the accused challenging the conviction and sentence entered by the trial court and the Sessions Court. When the revision petition came up for admission, it was noticed that no compensation had been awarded and so, Crl. R.C. 84/92 was registered suo mote and notice was issued to the accused to show cause why he should not be called upon to pay appropriate compensation to P.W. 1, the injured. 2. Crl. R.P. 736/92 had been filed by Adv. Benoy Thomas, who had entered appearance in Crl. R.C. 84/92 also. R.C. 84/92 was registered suo mote and notice was issued to the accused to show cause why he should not be called upon to pay appropriate compensation to P.W. 1, the injured. 2. Crl. R.P. 736/92 had been filed by Adv. Benoy Thomas, who had entered appearance in Crl. R.C. 84/92 also. But he had relinquished his vakalath and a fresh vakalath had been filed by Adv. Sergi Joseph Thomas in September, 1994 itself. Without noticing this, Crl. R.P. 736/92 along with Crl. R.C. 84/92 was listed for hearing in the Vllth Court on 28.6.1996 afternoon. In the list only the name of Adv. Binoy Thomas, who had relinquished the vakalath was shown. The name of Adv. Sergi Joseph Thomas was not shown. The learned judge heard the Public Prosecutor and passed a judgment on merits dismissing Crl. R.P. 736/92 and allowing Crl. R.C. 84/92 with a direction to pay the fine amount as compensation to the complainant. The judgment does not make it clear whether there was any representation for the revision petitioner. It is submitted that there was no representation on his behalf. 3. Crl. R.P. 2075/96 has been filed to recall the judgment in Crl. R.P. 736/92 and the order in Crl. R.C. 84/92 submitting that the petitioner's Advocate did not have an opportunity to advance his arguments in support of the revision petition as he was not aware of the listing of the case for hearing. 4. Learned Public Prosecutor has pointed out the decision reported in Sardar G. Singh v. Hardeep Singh (1987 (2) KLT 35) and contended that S.362 Cr. PC. prohibits review of judgment or final order disposing off a case and S.482 Cr. PC. cannot be called in aid for the purpose of review of judgment. But learned counsel appearing for the petitioner has submitted that actually the prayer is not for review of the judgment, but for a recall as the petitioner did not have an opportunity to present his case. Learned counsel has placed reliance in the decision in G. Raj Mallaiah v. State of Andhra Pradesh (AIR 1998 SC 2315). It was a case where an appeal was listed without showing the name of counsel in the cause list properly and he was unaware of the listing of the case. Learned counsel has placed reliance in the decision in G. Raj Mallaiah v. State of Andhra Pradesh (AIR 1998 SC 2315). It was a case where an appeal was listed without showing the name of counsel in the cause list properly and he was unaware of the listing of the case. The High Court passed a judgment on merits without hearing counsel and later rejected the publication for recalling the judgment. The Supreme Court observed: "It is no doubt true that it is open to the Court to dispose of an appeal on merits even in the absence of the learned counsel appearing for the parties when the case is set down for hearing and the advocate or the party concerned does not appear. However, when the learned counsel could not appear before the Court not on account of the fault either of the appellant or the advocates themselves, but on account of mistake committed by the Registry of the High Court in not showing the names of the counsel in the cause list properly and the counsel not being aware of the listing of the case before the court in such a matter we do not think that principle should be extended." The Supreme Court held that the decision in the case without hearing appellants or their Advocate had resulted in miscarriage of justice and remitted the matter to the High Court with a direction to restore the appeal to its original number. 5. Facts in this case are almost identical. I have verified the records as also the cause list published for 28.6.1996. It is seen that the Advocate whose name appeared in the cause list had relinquished vakalath long previously and the name of the Advocate, who had filed vakalath in the Crl. R.P. in September 1994 itself was not shown in the cause list. In such a case, the party should not suffer for the mistake of the office of the Court. Hence the judgment is liable to the recalled. Cr. M.C. 2075/96 is allowed and the judgment in Crl. R.P. 736/92 and Crl. R.C. 84/92 is recalled. 6. I have also heard learned counsel for the revision petitioner and the Public Prosecutor in Cr. R.P. 736/92 on its merits. As noted earlier, the incident took place at about 8 p.m. on 17.10.1996 from the residence of Parackal Mathai, a brother of the accused. R.P. 736/92 and Crl. R.C. 84/92 is recalled. 6. I have also heard learned counsel for the revision petitioner and the Public Prosecutor in Cr. R.P. 736/92 on its merits. As noted earlier, the incident took place at about 8 p.m. on 17.10.1996 from the residence of Parackal Mathai, a brother of the accused. Soya, a deaf mute girl, who was the younger sister of Mariakutty, the wife of Mathai, committed suicide by hanging. The deceased happened to be a cousin sister of P.W. 1, George Alias Joy. The accused had gone to his brother's house hearing the news of the death of Soya. P.W.1 had also gone there on information. Deceased Soya had a direct brother. P.W.1 allegedly made enquiries whether he had been informed and did not get a firm reply. He then made an allegation that it could be a case where Soya had been done to death and hanged to make it appear that it was a case of suicide. An altercation followed, accused taking the side of his brother Mathai and possibly some others taking sides with P.W.1 also. It is stated that about 50 persons had collected there. A policeman was also present. Following the altercation the accused is alleged to have taken out a knife and stabbed P.W.1 once causing an injury on his right shoulder and right eye. The evidence of P.W.1 and P.W. 5, the doctor who examined him from the Medical College Hospital shows that he had lost his eye sight in the right eye by the injury. P.W.1 has spoken to his case. He stated that it was the accused, who stabbed him with a knife. He also admitted that he made an allegation that Soya could have been killed and thereafter hanged from the ceiling to make it appear to be a suicide. The defence had a case that there was a scuffle involving two groups and P.W.1 could have sustained the injury at the hands of some other person and not from the accused. According to the defence, D.W.1 Varkey, the father of the accused and Mathai also suffered a beating with a torch light from Thomas, the brother of P.W. 1. A case was registered in that connection, which ultimately ended in acquittal. On this basis, the defence put forward a case of acting in self-defence. Both the courts below have not accepted these pleas. A case was registered in that connection, which ultimately ended in acquittal. On this basis, the defence put forward a case of acting in self-defence. Both the courts below have not accepted these pleas. The evidence of P.W. 1 was supported by P.Ws. 2 and 6, though P.Ws. 3 and 4, who were also cited as eye witnesses did not support it. P.Ws. 2 and 6 also stated that P.W.1 sustained the injury at the hands of the accused. They denied the suggestion that they or a newspaper reporter made a demand for Rs. 5,000/- from Mathai, stating that otherwise they will give publicity to the allegation that it was a case of murder. The courts below were justified in accepting the evidence of P.W.1 supported by the evidence of P.Ws. 2 and 6 that P.W.1 sustained the injury at the hands of the accused. A minor discrepancy as to whether the incident took place from the veranda or from the court-yard or whether a petromax light was kept in the veranda or inside, cannot be a reason to reject their evidence. 7. As regards the plea of acting in self defence, the accused had no case that P.W.1 caused hurt to D.W.1 or anyone else. The allegation was that Thomas, a brother of P.W.1 beat D.W. 1, the father of the accused. D.W.1 was not consistent in his version even as to whether he was beaten by hand or by a torch. So, the plea of acting in self defence was rightly rejected by the courts below. But the learned counsel for the revision petitioner submits that from the evidence, it is clear that the accused must have been acting on grave and sudden provocation. The accused and P.W.1 were distantly related. Apparently, they were friends also and had no previous enmity. P.W.1 had submitted that he made an allegation that Soya could have been done to death and hanged. The judgment of the learned Sessions Judge shows that the counsel for the appellant pleaded that the accused could have been acting on provocation. The learned Sessions Judge, rejected the plea stating that P.W.1 did not express any doubt that it was the accused, who hanged Soya. Of curse, the accusation was against Mathai, the brother of the accused. The judgment of the learned Sessions Judge shows that the counsel for the appellant pleaded that the accused could have been acting on provocation. The learned Sessions Judge, rejected the plea stating that P.W.1 did not express any doubt that it was the accused, who hanged Soya. Of curse, the accusation was against Mathai, the brother of the accused. But for causing a provocation, it is not necessary that the accused himself should be implicated by P.W.1 in the incident. It is not possible to agree with the learned Sessions Judge that there was no reason why the accused should feel provoked at the words of P.W. 1. The accusation had been made against the accused's brother. It could very well have provoked both the accused and his brother. P.W.1 himself admitted that the altercation was between him on the one side and the accused and his brother on the other and the exchange of words continued for about 5 minutes. It is also to be seen that the injury caused is such that>the accused could not have been aiming the weapon at a specific part of the body. It has touched the right shoulder and the right eye. Even according to P.W. 1, it was caused in an upward action. Possibly, P.W.1 was not in a stationary position when he sustained the injury. When such a serious allegation was made, even if it is against the accused's brother, there cannot be any doubt that it would have caused a grave and sudden provocation in the accused as it was a matter of family honour. Hence, the plea that the accused was acting under grave and sudden provocation must be accepted. The offence will fall not under S.326IPC, but only under S.335 IPC. So the conviction could have been only under S.335 IPC. 8. Before the courts below, the accused had prayed for release on probation. In fact, the Chief Judicial Magistrate had called for a report from the Probation Officer and a favourable report had been obtained stating that it could be a case of acting under a sudden impulse and the accused was not involved in any other crime. However, the courts below declined to consider the prayer for release on probation as the accused had been found guilty of an offence under S.326 IPC. Before this Court, P.W.1 has also entered appearance. However, the courts below declined to consider the prayer for release on probation as the accused had been found guilty of an offence under S.326 IPC. Before this Court, P.W.1 has also entered appearance. P.W.1 and the accused together have filed a joint petition praying for permission to compound the offence. Since the offence committed is found to be one under S.335 IPC, the prayer can be granted. Though not specifically mentioned in the petition, it is submitted that P.W.1 has been adequately compensated. In the petition, it is stated that parties were neighbours and related, to each other and have decided to forgive each other and forget the past. In the circumstances, the prayer for permission to compound the offence can be granted. In the result, (1) Crl. M.C. 2075/96 is allowed and the judgment dated 28.6.1996 in Crl. R.P. 736/92 and Crl. R.C. 84/92 is recalled (2) Crl. R.P. 736/92 is allowed. The conviction entered against the accused is converted as one under S.335 IPC and permission is granted to compound the offence. The revision petitioner/ accused is acquitted under S.320(8) Cr. P.C. Since the injured has been adequately compensated, Crl. R.C. 84/92 is closed.