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Sunday, April 26, 2015

Whether weapon is a dangerous weapon or not has to be gauged only on the factual basis. As there was no challenge on this aspect by the accused before the courts below, that plea for the first time cannot be permitted to be raised in this Court.The expression “any instrument which, used as a weapon of offence, is likely to cause death” when read in the light of marginal note to Section 324 means dangerous weapon which if used by the offender is likely to cause death. In the present case, neither in the courts below plea that weapon was not dangerous raised nor any evidence led in absence of which we are unable to interfere with the finding of the courts below on the nature of charge or to hold that the nature of weapon used does not fall under Sections 324 and 326.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 714 OF 2015
                 (ARISING OUT OF SLP (CRL.) NO.431 OF 2015)

NANDA GOPALAN                                …APPELLANT

VERSUS

STATE OF KERALA                                          …RESPONDENT

                               J U D G M E N T

ADARSH KUMAR GOEL, J.

1.    Leave granted.  This appeal has been preferred  against  judgment  and
order dated 31st October, 2014  passed  by  the  High  Court  of  Kerala  at
Ernakulam in Criminal Appeal No.285 of 2003.

2.    The appellant stands convicted under  Sections  324  and  326  of  the
Indian Penal Code (“IPC”)  and sentenced to  undergo  rigorous  imprisonment
for two years and three years respectively and to pay  fine  of  Rs.30,000/-
to the injured as compensation.  The appellant is son of cousin  of  injured
Sukumaran (PW1).

3.    Prosecution case  is  that  on  14th  May,  1999  at  7.30  a.m.,  the
appellant attacked PW 1 by using a bat made of  coconut  leaf  stem.   PW  1
fell down on receiving the blow.  The appellant sat on the  chest  of  PW  1
and caused injuries  with  a  stone.   PW  1  became  unconscious.   He  was
admitted to Medical Trust Hospital, Ernakulam, wherein  he  remained  indoor
patient for 32 days.  PW 10, Dr.  Anandam  Radhakrishnan,  Casualty  Medical
Officer in the said hospital examined PW 1 at 8.45 a.m. and found  following
injuries as per Exhibit P5 :

“(1)  4 x 1 cms through and through lacerated wound over left angle  of  the
mouth extending upwards exposing left upper  gum.   The  second,  third  and
fourth teeth on the upper gum missing.

(2)   4 x .5 x .5 cms lacerated wound over the  lateral  half  of  the  left
eyebrow with 1 cm long two extensions upwards.

(3)   1 x .25 x .25 cm incised wound over  the  bridge  of  nose  vertically
placed.

(4)   Irregular tear of right pinna of the ear exposing cartilage.

(5)   Contusion over the right angle of the mandible.

(6)   Contusion with swelling over left maxilla with two bleeding  lacerated
wound over it.”

4.     PW  2  recorded  the   First   Information   Report   and   conducted
investigation  and  sent  up  the  appellant  for  trial.   The  prosecution
examined not only the injured PW 1, but also PWs 2 and 3, his sons and PW  8
his wife, apart from independent witnesses PWs 4, 5  and  6.   In  addition,
medical evidence and relevant documents were also produced.

5.    The trial court held the case of the prosecution to have  been  proved
and convicted and sentenced the appellant which has  been  affirmed  by  the
High Court with reduction in sentence.  During pendency  of  the  appeal  in
the High Court,  a  settlement  was  reached  between  the  parties  and  an
application was moved before the High  Court  for  compounding  the  offence
under Section 324 and for quashing the  charge  under  Section  326  on  the
basis of compromise.  The application was dismissed on the ground  that  non
compoundable offence could not be settled between the parties.

6.    We have heard Shri Ram Jethmalani,  learned  senior  counsel  who  has
appeared as amicus curiae on the request of the court and Shri Jogy  Scaria,
learned counsel for the State of Kerala.

7.    Shri Jethmalani submitted that though  the  offence  under     Section
326 could not be compounded, the compromise could be taken into account  for
reducing the sentence.  He further submitted that since the weapon  used  in
the present case was not of the nature  specified  under  Sections  324  and
326, the charge could be altered to Sections 323 and  325.    Offence  under
Sections 323 is compoundable and 325 is compoundable with the permission  of
the court.  Shri Jethmalani has drawn the attention  of  the  Court  to  the
judgments in Dasan vs. State of Kerala and another[1], Mathai vs.  State  of
Kerala[2]  and Regina vs. Bibi[3].

8.     Learned  counsel  for  the  State  opposed  the  above   submissions.
According to him, the  conviction  under  Sections  324  and  326  has  been
rightly recorded and no interference is called for by this Court.

9.    While we have no difficulty in holding that taking  into  account  the
compromise between the parties particularly when they are  close  relatives,
reduction in sentence can be ordered, we do no find any ground to  interfere
with the conviction of the appellant.

10.   In Mathai, it was held :

“16. The expression “any instrument which, used as a weapon of  offence,  is
likely to cause death” (Section 326) has to be gauged  taking  note  of  the
heading of the section. What would constitute  a  “dangerous  weapon”  would
depend upon the facts of each case and no generalisation can be made.

17. The heading of the section provides some insight into the factors to  be
considered. The essential  ingredients  to  attract  Section  326  are:  (1)
voluntarily causing a hurt; (2) hurt caused must be  a  grievous  hurt;  and
(3) the grievous hurt must have been caused by dangerous weapons  or  means.
As was noted by this Court in State of U.P. v. Indrajeet [2000 (7) SCC  249]
there is no such thing as a  regular  or  earmarked  weapon  for  committing
murder or for that matter a hurt. Whether a particular article  can  per  se
cause any serious wound or grievous hurt or  injury  has  to  be  determined
factually. As noted above, the evidence of the doctor (PW 5)  clearly  shows
that the  hurt  or  the  injury  that  was  caused  was  covered  under  the
expression “grievous hurt” as defined under Section 320 IPC. The  inevitable
conclusion is that a grievous hurt was caused. It is not that in every  case
a stone would constitute a dangerous weapon. It would depend upon the  facts
of the case. At this juncture, it would be relevant to  note  that  in  some
provisions e.g. Sections 324 and 326 the expression  “dangerous  weapon”  is
used. In some other more serious offences the  expression  used  is  “deadly
weapon” (e.g. Sections 397 and 398). The  facts  involved  in  a  particular
case, depending upon various  factors  like  size,  sharpness,  would  throw
light on the question whether the weapon was a dangerous  or  deadly  weapon
or not. That would determine whether in the case Section 325 or Section  326
would be applicable.”

11.   The matter was again considered in Anwarul Haq vs. State of U.P.[4]:
“11. …..….. The plea that the weapon used was not  a  dangerous  weapon  had
never been urged before the trial court or the High  Court.  Whether  weapon
is a dangerous weapon or not has to be gauged only on the factual basis.  As
there was no challenge on this aspect  by  the  accused  before  the  courts
below, that plea for the first time cannot be  permitted  to  be  raised  in
this Court.

12. Section 324 provides that “[w]hoever, except in the  case  provided  for
by Section 334, voluntarily causes hurt  by  means  of  any  instrument  for
shooting, stabbing or cutting, or any instrument which, used as a weapon  of
offence, is likely to cause death,  or  by  means  of  fire  or  any  heated
substance, or by means of any poison  or  any  corrosive  substance,  or  by
means of any explosive substance or by means of any substance  which  it  is
deleterious to the human body to inhale, to swallow, or to receive into  the
blood, or by means of any animal”

can be convicted in terms of Section 324. The  expression  “any  instrument,
which used as a weapon of offence, is  likely  to  cause  death”  should  be
construed with reference to the nature of the instrument and not the  manner
of its use. What has to be  established  by  the  prosecution  is  that  the
accused voluntarily caused hurt and that such hurt was caused  by  means  of
an instrument referred to in this section.

13.  The  section  prescribes  a  severer  punishment  where   an   offender
voluntarily causes hurt by dangerous weapon or other  means  stated  in  the
section. The expression “any instrument which, used as a weapon of  offence,
is likely to cause death” when  read  in  the  light  of  marginal  note  to
Section 324 means dangerous weapon which if used by the offender  is  likely
to cause death.

14. Authors of IPC observed, as  noted  below,  the  desirability  for  such
severer punishment for the following reasons:

“… Bodily hurt may  be  inflicted  by  means  the  use  of  which  generally
indicates great malignity. A blow with the fist may cause as much pain,  and
produce as lasting an injury,  as  laceration  with  a  knife,  or  branding
[pic]with a hot iron. But it will scarcely be disputed  that,  in  the  vast
majority of cases, the offender who has used a knife or a hot iron  for  the
purpose of wreaking his hatred is a far worse and more dangerous  member  of
a society than who has only used his fist. It appears to us that many  hurts
which would not, according to our classification, be designated as  grievous
ought yet, on account of the mode in which are  inflicted,  to  be  punished
more severely than many grievous hurts.”

12.   In the present case, neither in the courts below plea that weapon  was
not dangerous raised nor any evidence led in absence of which we are  unable
to interfere with the finding of the courts below on the  nature  of  charge
or to hold that the  nature of weapon used does not fall under Sections  324
and 326.

13.   As regards the sentencing policy, it is well  settled  that  just  and
appropriate sentence has to  be  imposed  keeping  in  mind  the  proportion
between  crime  and  punishment  and  having  regard  to   the   facts   and
circumstances  of  each  case  particularly,  the  nature  of  offence,  the
sentence  prescribed,  mitigating  and  extenuating  and   other   attending
circumstances.  In State of M.P. vs. Ghanshyam Singh[5] , it was observed :
“13. Criminal law adheres in general to the principle of proportionality  in
prescribing liability according to the culpability of each kind of  criminal
conduct. It ordinarily allows some significant discretion to  the  Judge  in
arriving at a sentence in each case, presumably  to  permit  sentences  that
reflect more subtle considerations of culpability that  are  raised  by  the
special facts of each case.  Judges,  in  essence,  affirm  that  punishment
ought always to fit the crime; yet  in  practice  sentences  are  determined
largely by other considerations. Sometimes it is the correctional  needs  of
the perpetrator that are  offered  to  justify  a  sentence,  sometimes  the
desirability of keeping him out  of  circulation,  and  sometimes  even  the
tragic results of  his  crime.  Inevitably,  these  considerations  cause  a
departure from just deserts as the basis of punishment and create  cases  of
apparent injustice that are serious and widespread.

14.  Proportion  between  crime  and  punishment  is  a  goal  respected  in
principle, and in spite of errant notions, it remains a strong influence  in
the determination of  sentences.  The  practice  of  punishing  all  serious
crimes with equal severity is now unknown in civilized societies,  but  such
a radical departure from the principle of  proportionality  has  disappeared
from the law [pic]only  in  recent  times.  Even  now  for  a  single  grave
infraction drastic sentences are imposed. Anything less than  a  penalty  of
greatest severity for any serious crime is thought then to be a  measure  of
toleration that is unwarranted and unwise. But in  fact,  quite  apart  from
those considerations that make punishment unjustifiable when it  is  out  of
proportion to the crime,  uniformly  disproportionate  punishment  has  some
very undesirable practical consequences.

15. After giving due consideration to the facts and  circumstances  of  each
case, for deciding just and  appropriate  sentence  to  be  awarded  for  an
offence, the aggravating and mitigating factors and circumstances  in  which
a crime has been committed are to be delicately balanced  on  the  basis  of
really relevant circumstances in a dispassionate manner by the  court.  Such
act of balancing is  indeed  a  difficult  task.  It  has  been  very  aptly
indicated in Dennis Councle McGautha v. State of  California  [402  US  183]
that no formula of a foolproof nature  is  possible  that  would  provide  a
reasonable criterion in determining a just  and  appropriate  punishment  in
the infinite variety of circumstances that may affect  the  gravity  of  the
crime. In the absence of any foolproof formula which may provide  any  basis
for reasonable criteria to correctly assess  various  circumstances  germane
to the consideration of gravity of crime, the discretionary judgment in  the
facts of each case is the only way in which such judgment may  be  equitably
distinguished”.

14.   In Dasan,  it was observed :
“7. 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.”

15.   In Bankat vs. State of Maharashtra[6], it was observed :
“11. In our view, the submission of the learned counsel for  the  respondent
requires to be accepted. For compounding of the  offences  punishable  under
IPC, a complete scheme is provided under  Section  320  of  the  Code.  Sub-
section (1) of Section 320 provides  that  the  offences  mentioned  in  the
table provided thereunder can be compounded  by  the  persons  mentioned  in
column 3 of the said table.  Further,  sub-section  (2)  provides  that  the
offences mentioned in the table could be compounded by the victim  with  the
permission of the court.  As  against  this,  sub-section  (9)  specifically
provides that “no offence shall be compounded except  as  provided  by  this
section”. In view of the aforesaid legislative mandate,  only  the  offences
which are covered by Table 1 or Table 2 as stated above  can  be  compounded
and the rest of the offences punishable under IPC could not be compounded.

12. Further, the decision in Ram Pujan case [1973  (2)  SCC  456]  does  not
advance the contention raised by the  appellants.  In  the  said  case,  the
Court held  that  the  major  offences  for  which  the  accused  have  been
convicted were no doubt non-compoundable, but the fact of compromise can  be
taken into account in [pic]determining the quantum of sentence. In  Ram  Lal
case [1999 (2) SCC 213] the Court referred to the decision of this Court  in
Y. Suresh Babu v. State of A.P. [2005 (1) SCC  347]  and  to  the  following
observations made by the Supreme Court in Mahesh Chand  case  [(1990)  Supp.
SCC 681] (SCC p. 682, para 3) :



“3. We gave our anxious consideration to the case  and  also  the  plea  put
forward for seeking permission to compound the offence. After examining  the
nature of the case  and  the  circumstances  under  which  the  offence  was
committed, it may be proper that  the  trial  court  shall  permit  them  to
compound the offence.”

and held as under: (SCC p. 214, para 3)

“We are unable to follow the said decision as a binding  precedent.  Section
320 which deals with ‘compounding of offences’ provides two Tables  therein,
one containing descriptions of offences  which  can  be  compounded  by  the
person mentioned in it, and the other containing  descriptions  of  offences
which can be compounded with the permission of  the  court  by  the  persons
indicated therein. Only such offences  as  are  included  in  the  said  two
Tables can be compounded and none else.”

13. In the case of Y. Suresh Babu  the Court has specifically observed  that
the said case “shall not be treated  as  a  precedent”.  The  aforesaid  two
decisions are based on facts and in any set of circumstances,  they  can  be
treated as per incuriam as pointed attention of  the  Court  to  sub-section
(9) of Section 320 was not drawn. Hence, the High Court rightly  refused  to
grant permission to compound the offence punishable under Section 326.”



16.   In view of the above, we  are  inclined  to  reduce  the  sentence  of
imprisonment of  the  appellant  to  the  period  already  undergone,  while
increasing the amount of compensation to  Rs.2  lakhs  to  be  paid  to  the
victim within three months, failing which the sentence awarded by  the  High
Court will stand affirmed.





17.   The appeal is disposed of in above terms.



                                                          ……..…………………………….J.
                                                          [ J. CHELAMESWAR ]

                                                         .….………………………………..J.
                                                       [ ADARSH KUMAR GOEL ]
NEW DELHI
APRIL 24, 2015
-----------------------
[1]    2014 (12) SCC 666
[2]    2005 (3) SCC 260
[3]    1980 (1) WLR 1193
[4]    2005 (10) SCC 581
[5]    2003 (8) SCC 13
[6]    (2005) 1 SCC 343

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