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IN THE SUPREME COURT OF INDIA
CRIMINAL APPEAL NO. 714 OF 2015
(ARISING OUT OF SLP (CRL.) NO.431 OF 2015)
NANDA GOPALAN …APPELLANT
JUDGMENT
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 (PW[1]).
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 Page 2 Criminal Appeal No.714 of 2015 @ SLP (Crl.) No.431 of 2015 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 P[5]: “(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. Page 3
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 Page 4 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:
11. The matter was again considered in Anwarul Haq vs. State of U.P.4:
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 Page 7 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:
14. In Dasan, it was observed:
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 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):
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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. Page 11
17. The appeal is disposed of in above terms. ……..…………………………….J. [ J. CHELAMESWAR ].….………………………………..J. [ ADARSH KUMAR GOEL ] NEW DELHI APRIL 24, 2015