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Tuesday, January 28, 2014

Sec.326 I.P.C - conviction - non- compoundable - Constitutional courts may convert the section to the compoundable offence and may grant permission to compound the same - high court too confirmed but modified to pay one lakh and sentence of 18 months instead of 3 years - Matter settled out of court amicably- injured was also impleaded as one of the party and moved for compound of offence before Apex court under Art.142 of Constitution - Apex court converted the offence from sec.326 to sec.325 of I.P.C and permitted to compound the same as decided earlier by Apex court = Dasan … Appellant Versus State of Kerala & Anr. … Respondents = 2014 ( January part )judis.nic.in/supremecourt/filename=41179

  Sec.326 I.P.C - conviction - non- compoundable - Constitutional courts may convert the section to the compoundable offence and may grant permission to compound the same - high court too confirmed but modified to pay one lakh and sentence of 18 months instead of 3 years - Matter settled out of court amicably- injured was also impleaded as one of the party and moved for compound of offence before Apex court  under Art.142 of Constitution - Apex court converted the offence from sec.326 to sec.325 of I.P.C and permitted to compound the same as decided earlier by Apex court = 
 whether
in this case, permission to compound the offence should be  granted  because
PW-2 Uddesh to whom the hurt is caused has made  a  request  to  this  Court
that offence be compounded. =
 After  the  impugned   judgment,   the
appellant and PW-2 Uddesh have settled  the  case  out  of  court  amicably.
Since the offence under Section 326 of the Penal Code is not a  compoundable
offence, the appellant has preferred this appeal urging that in view of  the
settlement, this Court should in exercise of its powers  under  Article  142
of the Constitution of India compound the offence.

9.    In Ram Shanker & Ors.  v.  State of U.P.,[2] 
 the complainant  and  the
accused had settled the criminal  case  and  an  application  was  made  for
compounding the offence.  The  accused  were  convicted  for  offence  under
Section 307 of the Penal Code.  This Court converted the conviction  of  the
appellant from one under Section 307  of  the  Penal  Code  to  that  of  an
offence  under  Section  325  read  with  Section  34  of  the  Penal  Code.
Permission to compound the offence was granted and  the  appellants  therein
were acquitted.

   Having converted the appellant’s conviction  into  one  under  Section
325 of the Penal Code, we are inclined to follow the course adopted by  this
Court in Ram Shanker and grant permission  to  compound  the  offence.   The
offence was  committed  on  24/8/1996.   Eighteen  long  years  have  passed
thereafter.  The appellant and PW-2 Uddesh who suffered the grievous  injury
have compromised  the  case.   They  wish  to  accord  a  quietus  to  their
disputes.  We, therefore, grant permission to  compound  the  offence  under
Section 325 of the Penal Code to the  appellant  and  PW-2  Uddesh,  who  is
added as respondent 2 herein.  The offence under Section 325  of  the  Penal
Code is compounded.  The impugned judgment  is  set  aside.   The  appellant
Dasan is acquitted.  He is on bail.  His bail  bond  stands  cancelled.  The
appeal is disposed of.

2014 ( January part )judis.nic.in/supremecourt/filename=41179
RANJANA PRAKASH DESAI, MADAN B. LOKUR

                                                      NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 242 OF 2014
       (Arising out of Special Leave Petition (Crl.) No.8387 of 2013)

Dasan                                   …    Appellant

                                   Versus

State of Kerala  & Anr.                      …     Respondents

                               J U D G M E N T

(SMT.) RANJANA PRAKASH DESAI, J.

1.    Leave granted.

2.    In this appeal, judgment and  order  dated  17/1/2012  passed  by  the
Kerala High Court confirming the appellant’s conviction  under  Section  326
of the Penal Code is under  challenge.   We  have  granted  application  for
impleadment of Uddesh who was examined as PW-2 as he had  suffered  grievous
injury at the hands of the  appellant.   He  is,  therefore,  party  to  the
present appeal.

3.    The appellant is original Accused 1.  He was tried  along  with  seven
others by  the  Judicial  Magistrate,  First  Class,  Thrissur  in  Criminal
Complaint No.23 of 1997 for offences punishable  under  Sections  143,  147,
148, 323, 324, 326 read  with  Section  149  of  the  Penal  Code.   Learned
Magistrate convicted the appellant for offence punishable under Section  326
of the Penal Code for having caused grievous hurt by dangerous weapon to PW-
2 Uddesh and sentenced  him  to  undergo  rigorous  imprisonment  for  three
years.  The appellant was also ordered to pay  Rs.25,000/-  as  compensation
to PW-2 Uddesh. In default of payment of compensation, the appellant was  to
undergo simple imprisonment for six months.   The  appellant  was,  however,
acquitted of all other charges.  The other accused  were  acquitted  of  all
the charges leveled against them.  The appellant carried an  appeal  to  the
IIIrd Additional Sessions Judge, Thrissur.   The  Sessions  Court  dismissed
the  appeal.   Being  aggrieved,  the  appellant  filed  Criminal   Revision
Petition No.1931 of 2004 before the High Court of Kerala.  By  the  impugned
judgment, the High Court while confirming the conviction  of  the  appellant
under Section 326 of the  Penal  Code,  reduced  the  sentence  to  eighteen
months  rigorous  imprisonment.   However,  the  High  Court  increased  the
compensation awarded to PW-2 Uddesh by the trial court from  Rs.25,000/-  to
Rs.1 lakh.  In default,  the  appellant  was  ordered  to  undergo  rigorous
imprisonment  for  fifteen  months.   After  the  impugned   judgment,   the
appellant and PW-2 Uddesh have settled  the  case  out  of  court  amicably.
Since the offence under Section 326 of the Penal Code is not a  compoundable
offence, the appellant has preferred this appeal urging that in view of  the
settlement, this Court should in exercise of its powers  under  Article  142
of the Constitution of India compound the offence.

4.    We have heard learned counsel for the parties.  We  have  perused  the
written submissions filed by the appellant.  There is no dispute  about  the
fact that  the  appellant  and  PW-2  Uddesh  have  amicably  settled  their
dispute.  Their respective counsel have confirmed  this  fact.   Application
is filed by the appellant praying that the offence may be compounded.   PW-2
Uddesh has filed his affidavit confirming that he  and  the  appellant  have
amicably settled the case out of court  and  he  has  no  objection  to  the
compounding of the case.

5.    Offence punishable under Section  326  of  the  Penal  Code   is  non-
compoundable.  There is no dispute about  this.   Learned  counsel  for  the
appellant contended that, in fact, the appellant cannot be  convicted  under
Section 326 of the Penal Code because there is no consistent  evidence  that
the appellant used any dangerous weapon.  The evidence on  record  indicates
that he used a stick.  Therefore,  the  appellant  could  be  punished  only
under Section 325 of the Penal Code for voluntarily  causing  grievous  hurt
which is compoundable by the person to whom the  hurt  is  caused  with  the
permission of the court.  Counsel submitted that in the  circumstances,  the
conviction of  the  appellant  under  Section  326  of  the  Penal  Code  be
converted into one under Section 325 of the Penal Code and  the  offence  be
compounded.

6.    Section 320 of the Criminal Procedure Code (“the  Code”)  pertains  to
offences punishable under the Penal Code only.   It  states  which  offences
can be compounded, by whom they can be compounded and which offences can  be
compounded only with the permission of the concerned court.  Sub-sections  3
to 8 thereof further clarify how Section 320 of  the  Code  operates.   Sub-
section 9 thereof states that no  offence  shall  be  compounded  except  as
provided by this section.  The  legislative  intent  is,  therefore,  clear.
Compounding has to be done strictly in accordance with Section  320  of  the
Code.  No deviation from this provision is permissible.

7.    In Gian  Singh   v.   State  of  Punjab  &  Anr.,[1]  this  Court  was
considering the scope of Section 482 and Section  320  of  the  Code.   This
Court clarified that in compounding of offences, power of criminal court  is
circumscribed by the provisions contained in Section 320  of  the  Code  and
the court is guided solely and squarely thereby.  This Court  described  the
scope of Section 320 of the Code as under:

      “51. Section 320 of the Code articulates public policy with regard  to
      the compounding of offences. It  catalogues  the  offences  punishable
      under IPC which may be compounded by the parties without permission of
      the court and the composition of certain offences with the  permission
      of the court. The offences punishable under the special  statutes  are
      not covered by Section 320. When  an  offence  is  compoundable  under
      Section 320, abatement of such offence or an attempt  to  commit  such
      offence or where the accused is liable under Section 34 or 149 IPC can
      also be compounded in the same manner. A person who is under 18  years
      of age or is an idiot or  a  lunatic  is  not  competent  to  contract
      compounding of offence but the same can be done on his behalf with the
      permission of the  court.  If  a  person  is  otherwise  competent  to
      compound an offence  is  dead,  his  legal  representatives  may  also
      compound the offence with the  permission  of  the  court.  Where  the
      accused has been committed for trial or he has been convicted and  the
      appeal is pending, composition can only be done with the leave of  the
      court to which he has been committed or with the leave of  the  appeal
      court, as the case may be. The Revisional Court is also  competent  to
      allow any person to compound any offence who is competent to compound.
      The consequence of the composition of an offence is acquittal  of  the
      accused. Sub-section (9) of Section 320 mandates that no offence shall
      be compounded except as provided by this section. Obviously,  in  view
      thereof the composition of an offence has to be in accord with Section
      320 and in no other manner.”

8.    It follows from the above discussion that since offence under  Section
326 of the Penal  Code  is  non-compoundable,  permission  to  compound  it,
cannot be granted.  We, however, find some substance in  the  submission  of
the appellant’s counsel that on the basis of the evidence  adduced  in  this
case, it cannot be said with certainty that the appellant used an  iron  rod
to hit PW-2 Uddesh.  Though at the trial,  the  witnesses  stated  that  the
appellant used an iron rod to assault PW-2 Uddesh, admittedly the  iron  rod
is not recovered and what is recovered is MO1, a wooden  stick.   We  notice
from the judgment of the Sessions Court that the  case  of  the  prosecution
was that the appellant struck a blow on PW-2  Uddesh  with  a  wooden  stick
causing injury to his left  eye.   This  story  appears  to  have  been  not
accepted by the courts below because the witnesses  improved  the  story  in
the Court that an iron rod was used.   It has also come on record that  PW-2
Uddesh filed a civil suit against the  appellant  for  compensation  and  in
that suit, he alleged that the appellant beat him with a wooden stick.   The
Sessions Court has referred to this suit and particularly  the  plaint  [Ex-
D1] which contains the statement that PW-2 was beaten with  a  wooden  stick
by the appellant.  In our opinion, in the circumstances, it cannot  be  said
with certainty that the appellant used an iron rod to  beat  the  appellant.
In such a situation,  we  are  inclined  to  accept  the  version  which  is
favourable to the appellant.  In the  circumstances,  in  our  opinion,  the
appellant’s conviction under Section 326 of  the  Penal  Code  needs  to  be
converted into one under Section 325 of the  Penal  Code.   We  accordingly,
convert the conviction of the appellant from one under Section  326  of  the
Penal Code to one under Section  325  of  the  Penal  Code.   Offence  under
Section 325 of the Penal Code is compoundable by  the  person  to  whom  the
hurt is caused with the permission of the court.  The  question  is
whether
in this case, permission to compound the offence should be  granted  because
PW-2 Uddesh to whom the hurt is caused has made  a  request  to  this  Court
that offence be compounded.

9.    In Ram Shanker & Ors.  v.  State of U.P.,[2] 
the complainant  and  the
accused had settled the criminal  case  and  an  application  was  made  for
compounding the offence.  The  accused  were  convicted  for  offence  under
Section 307 of the Penal Code.  This Court converted the conviction  of  the
appellant from one under Section 307  of  the  Penal  Code  to  that  of  an
offence  under  Section  325  read  with  Section  34  of  the  Penal  Code.
Permission to compound the offence was granted and  the  appellants  therein
were acquitted.

10.   Having converted the appellant’s conviction  into  one  under  Section
325 of the Penal Code, we are inclined to follow the course adopted by  this
Court in Ram Shanker and grant permission  to  compound  the  offence.   The
offence was  committed  on  24/8/1996.   Eighteen  long  years  have  passed
thereafter.  The appellant and PW-2 Uddesh who suffered the grievous  injury
have compromised  the  case.   They  wish  to  accord  a  quietus  to  their
disputes.  We, therefore, grant permission to  compound  the  offence  under
Section 325 of the Penal Code to the  appellant  and  PW-2  Uddesh,  who  is
added as respondent 2 herein.  The offence under Section 325  of  the  Penal
Code is compounded.  The impugned judgment  is  set  aside.   The  appellant
Dasan is acquitted.  He is on bail.  His bail  bond  stands  cancelled.  The
appeal is disposed of.
                               .…………………………..J.
                           (Ranjana Prakash Desai)




                               .…………………………..J.
                              (Madan B. Lokur)
New Delhi;
January 27, 2014.
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[1]    (2012) 10 SCC 303
[2]    (1982) 3 SCC 388(1)

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