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SUPREME COURT OF INDIA
J. CHELAMESWAR, ADARSH KUMAR GOEL, JJ.
NANDA GOPALAN – APPELLANT
VERSUS
STATE OF KERALA – RESPONDENT
CRIMINAL APPEAL NO. 714 OF 2015 (ARISING OUT OF SLP (CRL.) NO.431 OF 2015)
Decided On : 24-04-2015
(b) Indian Penal Code, 1860 – Section 324, 326 – “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 – Means a dangerous weapon – In absence of pleading before trial court about the weapon not being dangerous weapon, nature of charge held by courts below cannot be interfered. (Para 12)
(2005) 3 SCC 260; (2005) 10 SCC 581 – Relied upon
(2014) 12 SCC 666; 1980 (1) WLR 1193 – Referred
(c) Criminal trial – Sentencing – Just and proportionate punishment – While excessive punishment would be unjustified, disproportionate punishment has some very undesirable practical consequences – Aggravating and mitigating circumstances need to be balanced – Sentence reduced to period undergone. (Para 14, 15)
(2003) 8 SCC 13; (2014) 12 SCC 666; (2005) 1 SCC 343 – Relied upon
Facts of the case:
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 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.
Trial court convicted and sentenced the appellant under Sections 324 and 326 IPC which has been affirmed by the High Court with reduction in sentence.
Finding of the Court:
Concurrent findings of courts below cannot be interfered with on a plea taken before the Supreme Court for the first time.
Result: Appeal disposed of.
JUDGMENT
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 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.
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 the attention of the Court to the judgments in Dasan vs. State of Kerala and another, 2014 (12) SCC 666 Mathai vs. State of Kerala, 2005 (3) SCC 260 and Regina vs. Bibi, 1980 (1) WLR 1193.
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 not 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 ta
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