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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

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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.   

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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

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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

1 2014 (12) SCC 666 2 2005 (3) SCC 260 3 1980 (1) WLR 1193

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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

4 2005 (10) SCC 581

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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  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

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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 Singh5 , 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

5 2003 (8) SCC 13

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is now unknown in civilized societies, but such a radical  departure  from  the  principle  of proportionality  has  disappeared from the law   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

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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 Maharashtra6, 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   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) :

6 (2005) 1 SCC 343

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“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.

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17. The appeal is disposed of in above terms.

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

.….………………………………..J.               [ ADARSH KUMAR GOEL ]

NEW DELHI APRIL 24, 2015

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