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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.
———————–
[1] (2012) 10 SCC 303
[2] (1982) 3 SCC 388(1)

———————–
8

 

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