DASAN Vs STATE OF KERALA
Bench: RANJANA PRAKASH DESAI,MADAN B. LOKUR
Case number: Crl.A. No.-000242-000242 / 2014
Diary number: 11225 / 2013
Advocates: C. K. SASI Vs
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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.
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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
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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
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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.
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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
1 (2012) 10 SCC 303
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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,
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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
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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 2 (1982) 3 SCC 388(1)
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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
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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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