BANKAT AND ANR.versusSTATE OF MAHARASHTRA

     A                           BANKAT AND ANR.
                                        v.
                              STATE OF MAHARASHTRA

                                    NOVEMBER 25, 2004

     B                [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]

              Penal Code, ·1860 :

               S. 326 rlw s. 34-Four accused convicted by trial court-High Court
     C   upholding conviction but reducing sentence of two accused to the period
         already undergone-Remaining two accused filing appeal-Their prayer
         for compounding the offence on the ground ofcompromise rejected by High
         Court-Held, only offences covered by Tables appended to sub-section (1)
         and (2) of s. 320 Cr.P. C. can be compounded-However, parties having
     D   settled their dispute and 10 years having elapsed, sentence reduced to the
         period already undergone-Besides, fine imposed-Code of Criminal
         Procedure, 1973-S. 320.

              Appellants, A-1 and A-2, alongwith A-3 and A-4 were convicted by
         the trial court of offences punishable under s. 326/34 and 325/34 IPC.
     E   The appellants and A-3 were awarded imprisonment for one year under
         s. 326 read with s. 34 IPC; but keeping in view the age of A-4, he was
         sentenced to imprisonment for one month and to pay a fine of Rs. 500.
         The High Court reduced the sentence of A-3 and A-4 to the period
         already undergone. However, the sentence of A-1 and A-2 was maintained.
     F   Their application for modification of the order on the ground of
         compromise between the parties was also rejected.

              In the appeals filed by A-1 and A-2 it was contended that since the
         dispute between the parties had been amicably settled iu a compromise,
         the High Court should have accepted their prayer for modification of
     G   the order and extended to the appell~nts as well the benefit granted to
         the other so-accused.

·,            Disposing of the appeals, the Court

     H        HELD: 1.1. In view of the legislative mandate contained in Section
                                            406
      BAN.KAT v. STATE OF MAHARASHTRA [PASAYAT, J.]                 407

320 of the Code of Criminal Procedure 1973, only the offences which         A
are covered by the Tables appended to sub-section (1) and Sub-section
(2) thereof can be compounded and the rest of the offences punishable
under the IPC could not be compounded. The course adopted in Ram
Pujan's* case and Mahesh Chand's** case was not in accordance with
law. [410-A, B]                                                             B
    Surendra Nath Mohanty and Anr. v. State ofOrissa, (1999] 5 SCC 235
and Ram Lal v. State of J & K, [1999] 2 SCC 213, relied on.

      *Ram PUjan v. State ofU.P., [1973] 2 SCC 456 and **Mahesh Chand
v. State of Rajasthan, [1990) Supp. SCC 681, held per incuriam.             C
     Y. Suresh Babu v. State of A.P., JT (1987) 2 SC 361, referred to.

     1.2. However, considering the fact that the parties have settled
their dispute outside the court, the fact that 10 years have elapsed from
the date of the incident, and the further fact that the appellants have     D
already undergone several months' imprisonment, ends of justice would:.
be met if the sentence of imp!"isonment is reduced to the period already
undergone besides imposing a fine of Rs.· 5000 on each of the accused
under s. 326 read with s. 34 IPC. Sentence awarded by trial court and
affirmed by High Court is modified accordingly. (411-A, B]
                                                                            E
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
1344·1345 of 2004.

     From the Judgment and Order dated l l.12.2003 and 1.4.2004 of the
Bombay High Court at Aurangabad in Crl.A. No. 167/95 and Crl.A. No.
313/2004 in Crl.R.A. No. 167 of 1995.
                                                                            F

    B.N. Deshmukh, S. Sooriya Kumaran and Venkateshwara Rao for the
Appellants.

     Mukesh K. Giri for the Respond~nt.                                     G
     The Judgment of the Court was delivered by

     ARIJIT PASAYAT, J,: Leave granted.

     Appellants call in question legality of the judgment rendered by a     H
    408                  SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   learned Single Judge of the Bombay High Court, Aurangabad Bench. The
    appellants who are described as A-1 and A-2 (hereinafter referred to as the
    'accused') had questioned correctness of their conviction as recorded by
    the learned Judicial Magistrate, 1st Class, Osmanabad for offences punishable
    under Sections 325 and 326 read with Section 34 of the Indian Penal Code,
B   1860 (in short the 'IPC').

          For offence relatable to Section 326 read with Section 34 IPC each of
    A-1 to A-3 was sentenced by the learned trial Judge to undergo imprisonment
    for one year and pay a fine of Rs. 500 with default stipulation. But looking. .
    to the age of A-4, he was sentenced to imprisonment for one month and pay
C   a fine of Rs.500 with default stipulation. No separate sentence was passed
    for the offence punishable under Section 325 read with Section 34 JPC.

         By the impugned judgment, the High Court held that A-3 was not
    responsible for the injury on the leg of victim Ratnabai (PW-2) and on the
D   head of the victim Manik (PW-1) and taking note of the long passage of
    time the cus~odial sentence was reduced to the period already undergone.
    However; the fine was enhanced to Rs. 2,000. For Pandurang Mohan Aade
    (A-4) also, looking to his age fine was enhanced to Rs. 2,000 but custodial
    sentence was reduced to. period already undergone. So far as the present
    appellants are concerned it was held that there is no scope for interference
E   with the sentence awarded. In other words, the conviction was maintained
    for all the four accused persons but different sentences were imposed.

         The benefit of Bombay Probation of Offenders Act (in short the
    'Probation Act') was not extended to the appellants looking into the nature
F   of the offence committed.

          After disposal of the revision application on 11.12.2003, an application
    was filed stating that the matter has been compromised between the victims
    and the accused persons and, therefore, the order should be modified. The
    said application was rejected by the learned Single jJudge holding that there
G   is no scope for modification of the order after ~isposal of the revision
                                           1




    application.

         Though in support of the appeals, many points were urgtd on the
    factual aspects, we find that the Courts below have concurrently found that
H   the accused persons were responsible for injuries on the victims Ratnabai
            BANKATv. STATE OF MAHARASHTRA [PASAYAT, J.]                        409

     and Manik and, therefore, in view of the evidence of the eye-witnesses, more      A'
     particularly, the injured witnesses there is no scope for interference with the
     conclusions arrived at.

           It was next submitted by learned counsel for tht appellants that
     occurrence took_place on l.3.1993 and more than a decade has elapsed and          B
     in the meantime the parties have· sorted out their differences, entered into
     compromise and, therefore, the High Court should have accepted the prayer
     for modification of the order.

          It was further submitted that though the offence under Section 326 is
     not compoundable in terms of Section 320(9) of the Code of Criminal               C
     Procedure, 1973 (in short the 'Code') this Court can exercise jurisdiction
     under Article 142 of the Constitution of India, 1950 (in short the
     'Con~titution') and pass necessary orders. It was submitted that the benefit
     extended to-the other co-accused persons should be made available to the
     appellants and the custodial sentence should have been reduced to the period      D
     already undergone.

           It is vehemently contended by the learned counsel for the appellants
     that as the dispute was amicably settled and the matter was compromised, ·
     the High Court ought to have granted permission to compound the offences
     and ought not to have convicted the appellants and imposed the sentence. E '
     For this purpose, reliance is placed upon the decisions of this Court in Ram
     Pujan v. State of UP, [1973] 2 SCC 456 and Mahesh Chand v. State
     Rajasthan, [1990] Supp SCC 681. As against this, learned counsel for the
     respondent submitted that the offence under Section 326 IPC is not
     compoundable and the High Court has rightly rejected the application for F
     compounding the same. He, for this purpose, relied upon the judgment of
     this Court in Ram Lal v. State of J&K, [1999] 2 SCC 213 wherein after
     referring to Section 320(9) of the Code the Court observed that the decision
     in Mahesh Chand's case (supra) was rendered per incuriam.

           In our view, the submission of the learned counsel for the respondent       G
     requires to be accepted. For compounding of the offences punishable under
     the IPC, a complete scheme is provided under Section 320 of the Code. Sub-
,.   section (1) of Section 320 provides that the offences mentioned in the Table
     provided thereunder can be compounded by the persons mentioned in
     column 3 of the said Table. Further, sub-section (2) provides that the            H
    410                   SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A   offences mentioned in the Table could be compounded by the victim with
    the permission of the court. As against this, sub-section (9) specifically
    provides that "no offence shall be compounded except as provided by this
    section". In view of the aforesaid legislative mandate, only the offences
    which are covered by Table I or Table 2 as stated above can be compounded
B   and the rest of the offences punishable under the IPC could not be
    compounded.

          Further, the decision in Ram Pujan 's case (supra) does not advance the
    contention raised by the appellants. In the said case, the Court held that the
C   major offences for which the accused have been convicted were no doubt
    non-compoundable, but the fact of compromise can be taken into account
    in determining the quantum of sentence. In Ram Lal's case (supra) the Court
    referred to the decision of this Court in Y. Suresh Babu v. State ofA.P., JT
    {1987) 2 SC 361 and to the following observations.made by the Supreme
    Court in Mahesh Chand's case (supra) and held as under: (SCC p. 682,
D   para 3)

             "3. We gave our anxious consideration to the case and also the plea
             put forward for seeking permission to compound the offence. After
             examining the nature of the case and the circumstances under which
E            the offence was committed, it may be proper that the trial court shall
             permit them to compound the offence."

           In the case of Y. Suresh Babu (supra) the Court has specifically
    observed that the said case "shall not be treated as a precedent". The
F   aforesaid two decisions are based on facts and in any set of circumstances,
    they can be treated as per incuriam as pointed attention of the Court to s1;1b-
    section. (9) of Section 320 was not drawn. Hence, the High Court rightly
    refused to grant permission to compound the offence punishable under
    Section 326.

G       We reiterate that the course adopted in Ram Pujan 's case (supra) and
    Mahesh Chand's case (supra) was not in accordance with law.

          The above position was elaborately indicated by a three-Judge Bench
    of this Court in Surendra Nath Mohanty and Anr. v. State o/Orissa, [1999]
H s sec 238.
              BANKATv. STATE OF MAHARASHTRA [PASAYAT,J.]                    411

        However, considering the fact that the parties have settled their dispute   A
'· outside the court, the fact that I 0 years have elapsed from the date of the
   incident, and the further fact that the appellants have already undergone
   several months' imprisonment, ends of justice would be met ifthe sentence
   of imprisonment is reduced to the period already undergnne besides imposing
   a fine of Rs. 5000 on each of the accused under Section 326 read with            B
   Section 34 IPC. In default of payment of fine, the appellants concerned shall
   undergo imprisonment for a further period of six months. We also refrain
   from imposing any separate sentence on the other counts of offences. Out
   of the fine amount, if realised, a sum of Rs. 4000 also be paid to each of
   the injured as compensation.
                                                                                    c
             The appeals stand disposed of accordingly.

      R.P.                                                Appeals disposed of.



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