IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 714 OF 2015
(ARISING OUT OF SLP (CRL.) NO.431 OF 2015)
NANDA GOPALAN …APPELLANT
STATE OF KERALA …RESPONDENT
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. Leave granted. This interest has been elite opposite visualisation and sequence antiquated 31st October, 2014 upheld by a High Court of Kerala during Ernakulam in Criminal Appeal No.285 of 2003.
2. The appellant stands convicted underneath Sections 324 and 326 of a Indian Penal Code (“IPC”) and condemned to bear severe seizure for dual years and 3 years respectively and to compensate excellent of Rs.30,000/- to a harmed as compensation. The appellant is son of cousin of harmed Sukumaran (PW1).
3. Prosecution box is that on 14th May, 1999 during 7.30 a.m., a appellant pounded PW 1 by regulating a bat finished of coconut root stem. PW 1 fell down on receiving a blow. The appellant sat on a chest of PW 1 and caused injuries with a stone. PW 1 became unconscious. He was certified to Medical Trust Hospital, Ernakulam, wherein he remained indoor studious for 32 days. PW 10, Dr. Anandam Radhakrishnan, Casualty Medical Officer in a pronounced sanatorium examined PW 1 during 8.45 a.m. and found following injuries as per Exhibit P5 :
“(1) 4 x 1 cms by and by torn wound over left angle of a mouth fluctuating upwards exposing left top gum. The second, third and fourth teeth on a top resin missing.
(2) 4 x .5 x .5 cms torn wound over a parallel half of a left eyebrow with 1 cm prolonged dual extensions upwards.
(3) 1 x .25 x .25 cm incised wound over a overpass of nose plumb placed.
(4) Irregular rip of right pinna of a ear exposing cartilage.
(5) Contusion over a right angle of a mandible.
(6) Contusion with flourishing over left maxilla with dual draining torn wound over it.”
4. PW 2 available a First Information Report and conducted review and sent adult a appellant for trial. The assign examined not usually a harmed PW 1, nonetheless also PWs 2 and 3, his sons and PW 8 his wife, detached from eccentric witnesses PWs 4, 5 and 6. In addition, medical justification and convenient papers were also produced.
5. The hearing justice reason a box of a assign to have been valid and convicted and condemned a appellant that has been endorsed by a High Court with rebate in sentence. During pendency of a interest in a High Court, a allotment was reached between a parties and an focus was changed before a High Court for compounding a corruption underneath Section 324 and for quashing a assign underneath Section 326 on a basement of compromise. The focus was discharged on a belligerent that non compoundable corruption could not be staid between a parties.
6. We have listened Shri Ram Jethmalani, schooled comparison warn who has seemed as amicus curiae on a ask of a justice and Shri Jogy Scaria, schooled warn for a State of Kerala.
7. Shri Jethmalani submitted that nonetheless a corruption underneath Section 326 could not be compounded, a concede could be taken into comment for shortening a sentence. He serve submitted that given a arms used in a benefaction box was not of a inlet specified underneath Sections 324 and 326, a assign could be altered to Sections 323 and 325. Offence underneath Sections 323 is compoundable and 325 is compoundable with a accede of a court. Shri Jethmalani has drawn a courtesy of a Court to a judgments in Dasan vs. State of Kerala and another, Mathai vs. State of Kerala and Regina vs. Bibi.
8. Learned warn for a State opposite a above submissions. According to him, a self-assurance underneath Sections 324 and 326 has been righteously available and no division is called for by this Court.
9. While we have no problem in holding that holding into comment a concede between a parties utterly when they are tighten relatives, rebate in visualisation can be ordered, we do no find any belligerent to meddle with a self-assurance of a appellant.
10. In Mathai, it was reason :
“16. The countenance “any instrument which, used as a arms of offence, is expected to means death” (Section 326) has to be gauged holding note of a streamer of a section. What would consecrate a “dangerous weapon” would count on a contribution of any box and no generalisation can be made.
17. The streamer of a territory provides some discernment into a factors to be considered. The essential mixture to attract Section 326 are: (1) willingly causing a hurt; (2) harm caused contingency be a disgusting hurt; and (3) a disgusting harm contingency have been caused by dangerous weapons or means. As was remarkable by this Court in State of U.P. v. Indrajeet [2000 (7) SCC 249] there is no such thing as a unchanging or earmarked arms for committing murder or for that matter a hurt. Whether a sold essay can per se means any critical wound or disgusting harm or damage has to be dynamic factually. As remarkable above, a justification of a alloy (PW 5) clearly shows that a harm or a damage that was caused was lonesome underneath a countenance “grievous hurt” as tangible underneath Section 320 IPC. The unavoidable end is that a disgusting harm was caused. It is not that in any box a mill would consecrate a dangerous weapon. It would count on a contribution of a case. At this juncture, it would be convenient to note that in some supplies e.g. Sections 324 and 326 a countenance “dangerous weapon” is used. In some other some-more critical offences a countenance used is “deadly weapon” (e.g. Sections 397 and 398). The contribution endangered in a sold case, depending on several factors like size, sharpness, would chuck light on a doubt either a arms was a dangerous or lethal arms or not. That would establish either in a box Section 325 or Section 326 would be applicable.”
11. The matter was again deliberate in Anwarul Haq vs. State of U.P.: “11. …..….. The defence that a arms used was not a dangerous arms had never been urged before a hearing justice or a High Court. Whether arms is a dangerous arms or not has to be gauged usually on a poignant basis. As there was no defence on this aspect by a indicted before a courts below, that defence for a initial time can't be available to be lifted in this Court.
12. Section 324 provides that “[w]hoever, solely in a box supposing for by Section 334, willingly causes harm by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a arms of offence, is expected to means death, or by means of glow or any exhilarated substance, or by means of any poison or any erosive substance, or by means of any bomb piece or by means of any piece that it is pernicious to a tellurian physique to inhale, to swallow, or to accept into a blood, or by means of any animal” can be convicted in terms of Section 324. The countenance “any instrument, that used as a arms of offence, is expected to means death” should be construed with anxiety to a inlet of a instrument and not a demeanour of a use. What has to be dynamic by a assign is that a indicted willingly caused harm and that such harm was caused by means of an instrument referred to in this section.
13. The territory prescribes a severer punishment where an delinquent willingly causes harm by dangerous arms or other means staid in a section. The countenance “any instrument which, used as a arms of offence, is expected to means death” when review in a light of extrinsic note to Section 324 means dangerous arms that if used by a delinquent is expected to means death.
14. Authors of IPC observed, as remarkable below, a appropriateness for such severer punishment for a following reasons:
“… Bodily harm might be inflicted by means a use of that generally indicates good malignity. A blow with a fist might means as most pain, and furnish as durability an injury, as break with a knife, or branding [pic]with a prohibited iron. But it will perceptibly be doubtful that, in a immeasurable infancy of cases, a delinquent who has used a blade or a prohibited iron for a purpose of wreaking his loathing is a distant worse and some-more dangerous member of a multitude than who has usually used his fist. It appears to us that many hurts that would not, according to a classification, be designated as disgusting ought yet, on comment of a mode in that are inflicted, to be punished some-more exceedingly than many disgusting hurts.”
12. In a benefaction case, conjunction in a courts next defence that arms was not dangerous lifted nor any justification led in deficiency of that we are incompetent to meddle with a anticipating of a courts next on a inlet of assign or to reason that a inlet of arms used does not tumble underneath Sections 324 and 326.
13. As regards a sentencing policy, it is good staid that usually and suitable visualisation has to be imposed gripping in mind a suit between crime and punishment and carrying courtesy to a contribution and resources of any box particularly, a inlet of offence, a visualisation prescribed, mitigating and extenuating and other attending circumstances. In State of M.P. vs. Ghanshyam Singh , it was celebrated : “13. Criminal law adheres in ubiquitous to a element of proportionality in prescribing guilt according to a blame of any kind of rapist conduct. It usually allows some poignant option to a Judge in nearing during a visualisation in any case, presumably to assent sentences that simulate some-more forked considerations of blame that are lifted by a special contribution of any case. Judges, in essence, attest that punishment ought always to fit a crime; nonetheless in use sentences are dynamic mostly by other considerations. Sometimes it is a correctional needs of a perpetrator that are offering to transparent a sentence, infrequently a appropriateness of gripping him out of circulation, and infrequently even a comfortless regulation of his crime. Inevitably, these considerations means a depart from usually deserts as a basement of punishment and emanate cases of apparent misapplication that are critical and widespread.
14. Proportion between crime and punishment is a idea reputable in principle, and in annoy of erring notions, it stays a clever change in a integrity of sentences. The use of punishing all critical crimes with equal astringency is now different in courteous societies, nonetheless such a radical depart from a element of proportionality has left from a law [pic]only in new times. Even now for a singular grave infringement extreme sentences are imposed. Anything reduction than a chastisement of biggest astringency for any critical crime is suspicion afterwards to be a magnitude of clemency that is uncalled-for and unwise. But in fact, utterly detached from those considerations that make punishment unworthy when it is out of suit to a crime, regularly jagged punishment has some unequivocally unattractive unsentimental consequences.
15. After giving due care to a contribution and resources of any case, for last usually and suitable visualisation to be awarded for an offence, a aggravating and mitigating factors and resources in that a crime has been committed are to be smoothly offset on a basement of unequivocally convenient resources in a unfeeling demeanour by a court. Such act of balancing is indeed a formidable task. It has been unequivocally aptly indicated in Dennis Councle McGautha v. State of California [402 US 183] that no regulation of a foolproof inlet is probable that would yield a reasonable pattern in last a usually and suitable punishment in a gigantic accumulation of resources that might impact a sobriety of a crime. In a deficiency of any foolproof regulation that might yield any basement for reasonable criteria to righteously consider several resources convenient to a care of sobriety of crime, a discretionary visualisation in a contribution of any box is a usually approach in that such visualisation might be honestly distinguished”.
14. In Dasan, it was celebrated :
“7. Section 320 of a Criminal Procedure Code (“the Code”) pertains to offences punishable underneath a Penal Code only. It states that offences can be compounded, by whom they can be compounded and that offences can be compounded usually with a accede of a endangered court. Sub-sections 3 to 8 thereof serve explain how Section 320 of a Code operates. Sub- territory 9 thereof states that no corruption shall be compounded solely as supposing by this section. The legislative vigilant is, therefore, clear. Compounding has to be finished particularly in suitability with Section 320 of a Code. No flaw from this sustenance is permissible.”
15. In Bankat vs. State of Maharashtra, it was celebrated : “11. In a view, a acquiescence of a schooled warn for a respondent requires to be accepted. For compounding of a offences punishable underneath IPC, a finish intrigue is supposing underneath Section 320 of a Code. Sub- territory (1) of Section 320 provides that a offences mentioned in a list supposing thereunder can be compounded by a persons mentioned in mainstay 3 of a pronounced table. Further, sub-section (2) provides that a offences mentioned in a list could be compounded by a plant with a accede of a court. As opposite this, sub-section (9) privately provides that “no corruption shall be compounded solely as supposing by this section”. In perspective of a aforesaid legislative mandate, usually a offences that are lonesome by Table 1 or Table 2 as staid above can be compounded and a rest of a offences punishable underneath IPC could not be compounded.
12. Further, a preference in Ram Pujan box [1973 (2) SCC 456] does not allege a row lifted by a appellants. In a pronounced case, a Court reason that a vital offences for that a indicted have been convicted were no doubt non-compoundable, nonetheless a fact of concede can be taken into comment in [pic]determining a quantum of sentence. In Ram Lal box [1999 (2) SCC 213] a Court referred to a preference of this Court in Y. Suresh Babu v. State of A.P. [2005 (1) SCC 347] and to a following observations finished by a Supreme Court in Mahesh Chand box [(1990) Supp. SCC 681] (SCC p. 682, para 3) :
“3. We gave a concerned care to a box and also a defence put brazen for seeking accede to devalue a offence. After examining a inlet of a box and a resources underneath that a corruption was committed, it might be correct that a hearing justice shall assent them to devalue a offence.” and reason as under: (SCC p. 214, para 3) “We are incompetent to follow a pronounced preference as a contracting precedent. Section 320 that deals with ‘compounding of offences’ provides dual Tables therein, one containing descriptions of offences that can be compounded by a chairman mentioned in it, and a other containing descriptions of offences that can be compounded with a accede of a justice by a persons indicated therein. Only such offences as are enclosed in a pronounced dual Tables can be compounded and nothing else.”
13. In a box of Y. Suresh Babu a Court has privately celebrated that a pronounced box “shall not be treated as a precedent”. The aforesaid dual decisions are formed on contribution and in any set of circumstances, they can be treated as per incuriam as forked courtesy of a Court to sub-section (9) of Section 320 was not drawn. Hence, a High Court righteously refused to extend accede to devalue a corruption punishable underneath Section 326.”
16. In perspective of a above, we are prone to revoke a visualisation of seizure of a appellant to a duration already undergone, while augmenting a volume of remuneration to Rs.2 lakhs to be paid to a plant within 3 months, unwell that a visualisation awarded by a High Court will mount affirmed.
17. The interest is likely of in above terms.
[ J. CHELAMESWAR ]
[ ADARSH KUMAR GOEL ] NEW DELHI APRIL 24, 2015