The non-compoundable nature of the offence under section 326 IPC and the consideration of compromise and familial relationship in modifying the sentence.

This revision is directed against the judgment and order dated 28.05.2006 passed by the learned Addl. Sessions Judge (FTC), Lakhimpur in Crl. Appeal No. 21(3)/2004 affirming the judgment and order dated 05.08.2004 passed by the learned Chief Judicial Magistrate, Lakhimpur, in GR Case No. 152/1999 convicting the accused petitioner under section 326/323 of the Indian Penal Code and sentencing him to imprisonment for three years and to pay fine of Rs. 1,000/- (Rupees one thousand) with a default clause.

2. Heard Mr. S. Katakey, learned counsel appearing for the petitioner and Mr. N.K. Kalita, learned Addl. Public Prosecutor, Assam.

3. It is contended inter alia by the accused petitioner that another case at the instance of the present accused petitioner was registered vide G.R Case No. 149/1999 under section 447/323 of the IPC and in that case charge sheet was filed and the accused was acquitted by the court in view of the compromise arrived at between the parties. The present case was also sought to be compounded but since the offence under section 326 of the IPC is a non-compoundable offence compromise could not be given effect to.

4. Mr. Kataki, learned counsel submits that the evidence on record was not properly appreciated by the courts below and the omissions and contradictions in the evidence of the witnesses were not considered. It is further submitted that although the injured and the accused filed a joint compromise petition before the trial court but that was rejected as the offence was not compoundable. They have again filed a joint compromise petition before this court stating therein that they are the members of the same family and they have settled the matter amicably and the injured is not interested to proceed further with the case. He strenuously contends that in view of the compromise arrived at between the parties the proceedings be quashed in exercise of the power under section 482 of the Cr.P.C.

5. Mr. Kalita, learned Addl. Public Prosecutor, in controversion, submits that the present revision is filed challenging the order of conviction passed by the CJM and affirmed by the appellate court and although it appears to have been filed under section 397/401 read with section 482 of the Cr.P.C., it is virtually a revision against the order of conviction and quashment of the proceedings is not permissible even though compromise is arrived at between the parties. However, he fairly submits that since the accused and the injured have amicably settled the case outside the court, a lenient view may be taken while passing the sentence against him. He further submits that there was concurrent finding of facts arrived at by the courts below and revisional interference is uncalled for.

6. It is a settled proposition of law that ordinarily it is not open to the High Court in its revisional jurisdiction to interfere with the concurrent finding of facts arrived at by the courts, unless it is shown that the evidence on record was misread by the courts or was not properly appreciated. In the present case, the injured who has been examined as P. W. 2 categorically stated that on the day of occurrence a quarrel took place between him and the accused and the accused came with a dao and struck him on his head as a result of which he sustained grievous injuries. He was immediately shifted to Gauhati Medical College & Hospital for treatment. His evidence is corroborated by the eye witnesses, P.W. 1 and P.W. 4. The doctor who examined the injured in the North Lakhimpur Civil Hospital where the injured was initially taken has been examined as P.W. 5. On examination he found the following injury :

“One incised wound on right parietal area of the head dividing completely the scalp and skull bone. The brain matters protruded. Fresh bleeding was present. The patient was referred to Neurological Centre at Guwahati Medical College and Hospital.”

7. The doctor opined that injuries were caused by sharp weapon and were grievous i