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2014 DIGILAW 62 (KER)

Joy v. State of Kerala

2014-01-24

P.UBAID, THOTTATHIL B.RADHAKRISHNAN

body2014
Judgment : P. Ubaid, J. 1. A judgment of conviction and sentence under Sections 324 and 326 IPC made by the Judicial First Class Magistrate Court, Thiruvalla, and confirmed in appeal by the Additional Sessions Judge, Pathanamthitta, is under challenge in this revision. On the allegation that the revision petitioner herein assaulted the defacto complainant Babu at about 8.30 pm on 23.10.1999, a crime was registered against the revision petitioner in the Perumpetty Police Station as Crime No.100/1999. After investigation the police submitted final report in the Court of the Judicial First Class Magistrate, Thiruvalla under Sections 324 and 326 of IPC. Pending investigation in the crime, the said Babu, who is the 2nd respondent herein, filed a suit against the revision petitioner before the Sub Court, Thiruvalla, for damages, in enforcement of his rights under the Law of Torts. By the time the criminal case came up for trial, the learned Sub Judge decreed the said suit in favour of the plaintiff, granting a compensation of Rs.2.03 lakhs. The said decree is under challenge before this Court in R.F.A.No.564 of 2009. The criminal case against the revision petitioner herein ended in conviction on trial. On conviction he was sentenced to undergo rigorous imprisonment for one year under Section 324 IPC, and to undergo rigorous imprisonment for two years and also to pay a fine of Rs.2,000/- under Section 326 IPC. The revision petitioner failed in his appeal before the Sessions Court, Pathanamthitta, and now he has come before this Court in revision, challenging the legality and propriety of the conviction and sentence. Being a connected matter this revision petition was brought before this Bench for hearing and disposal. 2. Pending the two proceedings the revision petitioner and the 2nd respondent herein settled the whole dispute. On the submission that the disputes could be resolved by mediation, the parties were referred to mediation in R.F.A. No.564/2009. In the mediation process the parties amicably settled the whole dispute including the criminal case, and accordingly the revision petitioner herein agreed to pay a compensation of Rs.1,70,000/- in instalments. The mediation agreement signed by both the parties is before this Court in R.F.A No.564 of 2009. In view of amicable settlement in mediation the parties herein filed composition, with request for permission to compound the offences. The mediation agreement signed by both the parties is before this Court in R.F.A No.564 of 2009. In view of amicable settlement in mediation the parties herein filed composition, with request for permission to compound the offences. Relying on the decisions of the Hon'ble Supreme Court in Y.Suresh Babu V. State of A.P reported in [(2005) 1 SCC 347], Gian Singh V. State of Punjab and Anr. reported in [2012 Crl.L.J. 4934] and Ashok Sadarangani V. Union of India [2012 (1) KLT Suppl. 65 (SC)], the learned counsel for the revision petitioner submitted that permission can be granted to compound the offence under Section 326 IPC, in view of the amicable settlement of the whole dispute in mediation. 3. On a perusal of the judgments of the Hon'ble Supreme Court cited before us, we find that composition of noncompoundable offences cannot be resorted to in every case or dispute settled between the parties. Though the Hon'ble Supreme Court granted permission to compound the offence under Section 326 IPC in Suresh Babu's (supra) case, the Hon'ble Supreme Court has directed such a course not to be treated as a precedent. In Ashok Sadarangani (supra) the Hon'ble Supreme Court held that continuance of a criminal proceeding after a compromise had been arrived at between the complainant and the accused would amount to abuse of process of court and an exercise in futility since the trial could be prolonged and ultimately may conclude in a decision which may not be of any consequence to any of the parties. But in the said case permission for composition was declined by the Hon'ble Supreme Court on the ground, that on examination of the materials in the said case, the Hon'ble Supreme Court found emphasis more on the criminal aspect than on the civil aspect. In Gian Singh's (supra) case the Hon'ble Supreme Court has held that the inherent power of the court under Section 482 of the Code of Criminal Procedure on the ground of settlement out side court in the case of non-compoundable offences, will have to be exercised in accordance with the guidelines engrafted in such power, ie. (1) to secure the ends of justice or (2) to prevent abuse of the process of any court. On going through the various decisions on the point we found it difficult to allow composition in this case as regards the offence under Section 326 IPC. (1) to secure the ends of justice or (2) to prevent abuse of the process of any court. On going through the various decisions on the point we found it difficult to allow composition in this case as regards the offence under Section 326 IPC. However, we felt it necessary to look into the legal aspect, as to whether a conviction in this case under Section 326 IPC is legally sustainable. 4. On facts, there is not much dispute in this case in view of the concurrent findings of the trial court and the appellate court, and also in the light of the amicable settlement in mediation. However, as part of appreciation of evidence in revision, this Court will have to analyse the evidence for coming to a decision on the said legal aspect. The incident of assault and infliction of injuries alleged by the prosecution stands well proved by the consistent and definite evidence given by the defacto complainant examined as PW3, the independent evidence given by PW7, and also the medical evidence including Ext.P5 wound certificate. It stands well proved by the evidence of PW3 and PW7, and also the medical evidence of PW8 that the 2nd respondent herein had sustained fracture of his right maxilla, fracture of left zygoma and fracture of nasal bone. The evidence given by these material witnesses stands not discredited, and in the present situation nothing was argued on facts by the learned counsel for the revision petitioner. It was submitted that the injured has lost his eye sight in one eye, but such a case stands not proved by any medical evidence. However, it stands proved that this is definitely a case of infliction of grievous hurt as defined under the law. But the important legal question is whether the grievous injuries involved in this case will attract the penal provision under Section 326 IPC. 5. However, it stands proved that this is definitely a case of infliction of grievous hurt as defined under the law. But the important legal question is whether the grievous injuries involved in this case will attract the penal provision under Section 326 IPC. 5. For a successful prosecution on the ground of infliction of grievous hurt, under Sections 324 and 326 IPC, the prosecuting agency must have a definite case that the alleged grievous hurt was caused or inflicted by means of (a) any instrument for shooting, stabbing or cutting or (b) any instrument which, used as weapon of offence, is likely to cause death, or (c) by means of fire or any heated substance or (d) by means of any poison or any corrosive substance or (e) by means of any explosive substance, or (f) by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or (g) by means of any animal. In this case the prosecution allegation is that the revision petitioner inflicted injuries on the body of the injured (2nd respondent) herein by hitting with a stone, which, used as weapon of offence, is likely to cause death. Though the expression 'dangerous weapon' or 'deadly weapon' is not seen used in Section 324 or 326 IPC, usually law persons refer to the sections as penal sections dealing with infliction of grievous hurt with dangerous weapon or deadly weapon. Any way let us see whether the material object alleged or involved in this case will come under of Section 326 or Section 324, dealing with infliction of grievous hurt with a weapon likely to cause death, when used as a weapon of offence. 6. A stone, as such, cannot be said to be a weapon of offence, likely to cause death. To decide whether a particular stone brought before the Court as material object used for infliction of injury, is a weapon of offence likely to cause death, there must be some evidence regarding the nature of the said stone, or the size of the said stone, and also regarding the way in which the stone was used in the process of assault for infliction of injury. It is pertinent to note that the material object involved in this case is not before the court. It is pertinent to note that the material object involved in this case is not before the court. In Mathai V. State of Kerala [ (2005) 3 SCC 260 ] involving alleged infliction of grievous hurt by hitting with a stone, the Hon'ble Supreme Court held that the Court will have to decide on the facts and circumstances of each case, having regard to the weapon's size, sharpness etc. as to whether the given weapon is deadly weapon or not. In the said case the Hon'ble Supreme Court altered the conviction under Section 326 IPC, to one under Section 325 IPC. This decision of the Hon'ble Supreme Court can be followed in this case. When the prosecution allegation is that grievous injuries were inflicted by the revision petitioner on the body of the 2nd respondent with a stone, the prosecution does not have any explanation, as to what happened to the stone, or why it is not produced in court as a material object. In a case like this the prosecution must produce the weapon before the Court, it must be shown to the medical witness, and the prosecution must elicit materials from the medical witness regarding the nature of the stone, its size and also regarding the possibility of death being caused, if the said stone is used as a weapon of offence, or the possibility of death being caused due to the grievous injuries inflicted with the said stone. But in this case, the learned Assistant Public Prosecutor who conducted prosecution in the trial court has not elicited any such necessary material regarding the alleged weapon, from the medical witness examined in the trial court. In the absence of such necessary materials for deciding whether the alleged weapon of offence is likely to cause death, and in the absence of such a weapon before the Court as material object, we find that this case cannot be taken as a case of infliction of grievous hurt by means of any weapon of offence. Accordingly, we find that the conviction in this case under Section 326 IPC is not sustainable under the law. However, we find a case of infliction of grievous injuries, otherwise than by means of deadly weapon or dangerous weapon coming under Section 325 IPC. Accordingly, we find that the conviction in this case under Section 326 IPC is not sustainable under the law. However, we find a case of infliction of grievous injuries, otherwise than by means of deadly weapon or dangerous weapon coming under Section 325 IPC. Consequently, it will have to be found that infliction of simple injuries alleged in this case will have to come under Section 323 IPC. 7. In the light of the findings above, as regards the correct penal section attracted, we find that the conviction in this case under Section 326 IPC will have to be altered to one under Section 325 IPC. Consequently, the conviction under Section 324 IPC will have to be altered to one under Section 323 IPC. On facts, the prosecution case stands well proved by the evidence of the defacto complainant, the evidence of independent witness examined as PW7, and also the medical evidence given by PW8, though the other incident witness examined by the prosecution as PW1 turned hostile. 8. In the light of the above findings, the conviction against the revision petitioner herein under Section 326 IPC is altered to one under Section 325 IPC, and consequently the conviction under Section 324 IPC is altered to one under Section 323 IPC, in exercise of the powers under Section 386 IPC r/w Section 401 Cr.P.C. 9. In the above circumstances, we are inclined to grant permission to compound the offences. The parties have amicably settled the dispute out of court, and have filed composition before this Court. The offence under Section 323 IPC is compoundable under the law, and the offence under Section 325 IPC is compoundable with permission of the Court. The said composition is accepted by the Court, the parties are granted permission for composition under Section 320(6) Cr.P.C, and the said composition is recorded in the proceedings. Consequently, the impugned conviction and sentence against the revision petitioner are hereunder set aside, and he will stand released on the benefit of acquittal under Section 320(8) Cr.P.C. The bail bond executed by the revision petitioner in the court below will stand discharged.