JUDGMENT

(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 326of 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 326of 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/- toRs.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-2Uddesh 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 becompounded.

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 3to 8 thereof further clarify how Section 320 of the Code operates. Sub-section 9 thereof states that no offenc