Holding

While Section 326 mandates a custodial component, the fine having been paid and the long lapse of time justify restricting the imprisonment to the period already undergone.

Summary

The appellant was convicted under Sections 326 and 452 of the Indian Penal Code for trespassing into a house and causing grievous hurt with a dangerous weapon. The trial court sentenced him to confinement till the rising of the court and a fine; the Madras High Court enhanced the custodial term to two years of rigorous imprisonment, holding that Section 326 mandates a custodial sentence. The appellant challenged the conviction and the enhanced sentence before the Supreme Court. The Court noted that the fine had been paid and the victims had received the directed compensation, and that a considerable period had elapsed since the conviction. Considering these facts, the Court held that the period of imprisonment should be limited to the time already served, effectively nullifying the enhancement. The appeal was therefore dismissed and the sentence restricted to the period already undergone.

Issues considered

Whether Section 326 of the IPC requires a custodial sentence and precludes imposition of only a fine
Whether the High Court was justified in enhancing the sentence to two years of rigorous imprisonment
Whether, given payment of the fine and the lapse of time, the period of imprisonment should be limited to time already served

Legislation cited

Indian Penal Code, 1860s. 326, s. 452

Subjects

Section 326 IPCcustodial sentencefine paymentsentence enhancementtime already servedcriminal revisionhouse trespassgrievous hurtSupreme Court of India

Judgment

[2009] 7 S.C.R. 330

A GEORGE PON PAUL
v.
KANAGALET & ORS.
Criminal Appeal Nos. 72"73 of 2003 ·
APRIL 29, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
~
Penal Code, 1860 - ss. 326 and 452 - Conviction under
- Imposition of custodial sentence of confinement till rising of
c court and fine with default stipulation - High Court enhancing
the sentence to rigorous imprisonment for two years with fine
- On appeal held: Accused has deposited the fine amount
and victim has been paid the amount as directed - Also there
has been lapse of long time - Hence, period of sentence
D restricted to the period already undergone.
CRIMINALAPPELLATEJURISDICTLON: CriminalAppeal
Nos. 72-73 of 2003
From the Judgement and Order dated 24.01.2002 of the
E Hon'ble High Court of Judicature at Madras in Criminal R.C.
Nos. 935 of 1999, No. 1786 of 1999 and 1048 of 2001.
C. Paramasivam. P. Ramesh, Rakesh K. Sharma, for the
Appellant. .} .

F The Judgement of the Court was delivered by
DR. ARIJIT PASAYAT, J.
Challenge in this appeal is to the order passed by a
learned Single Judge of the Madras High Court allowing the
G revision petition filed by the present respondent nos. 1 and 2
while dismissing the revision petition filed by the present
,lo;,,
appellant. The High Court was of the view that for the offence
punishable under Section 326 of the Indian Penal Code, 1860
(in short 'IPC') only the fine was imposed and therefore
H 330
GEORGE PON PAUL V. KANAGALET & ORS. 331
[DR. ARIJIT PASAYAT, J.]

sentenced the appellant to undergo rigorous imprisonment for A
' "' two years in addition to the fine imposed.
Prosecution version as unfolded during trial was that on
7.1.1993 at about 2.45 P.M. three accused persons trespassed
into the house of respondent No. 1 (PW1) and attacked her
husband respondent No. 2 (PW2). While the said attack was B
restrained by PW1., they attacked her also with Vettu Kathi and
other weapons and caused injuries to both of them. All the three
-t accused were tried for commission of offence punishable under
Sections 452, 326, 324 and 3251PC. The trial court directed
·acquittal of the accused Nos. 2 and 3 while convicting the present c
appellant for the offences punishable under Section 326 and
452 IPC. The present appellant challenging the said conviction
filed an appeal before the Appellate Court which confirmed the
conviction, and sentence imposed i.e. confinement till rising of
-
~
court and fine with default stipulation. Aggrieved by the same, D
~ the present appellant filed Criminal Revision No. 1048 of 2001
before the Madras High Court. Immediately after the conviction
was recorded both the victims Pws 1 and 2 filed a criminal
revision petition No. 935/1999 before the High Court challenging
the acquittal in respect of the charges as against A2 and A3 E
t
and to enhance the sentence imposed upon A 1 for both the
offence as the sentence imposed was not adequate.

~ Both the revision petitions were taken up and disposed of
by a common judgment. The High Court found that the acquittal
of A2 and A3 does not suffer from any infirmity. It noted that in F
view of the specific provisions relating to imposition of custodial
sentence, the trial court could not have imposed only fine. The
High Court found no merit in the revision petition filed by the
appellant questioning his conviction but held that in view of
.... provisions of Section 326, custodial sentence has to be there . G
_,.;;!#
Accordingly, while maintaining the conviction the sentence was
enhanced. Sections 326 and 452 reads as follows :
326. Voluntarily causing grievous hurt by dangerous
weapons or means -
H
332 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Whoever, except in the case provided for by section 335, "
voluntarily causes grievous hurt by means of any instrument
for shooting, stabbing or cutting, or any instrument which,
used as a weapon of offence, is likely to cause death, or
by means of fire or any heated substance, or by means of
B any poison or any corrosive substance, or by means of
any explosive substance, or by means of any substance
which it is deleterious to the human body to inhale, to
swallow, or to receive into the blood, or by means of any t-
animal, shall be punished with 152 [imprisonment for life],
c or with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to fine.
452. House-trespass after preparation for hurt, assault or
wrongful restraint -
Whoever commits house-trespass, having made
D
preparation for causing hurt to any person or for assaulting . ,. '
any person, or for wrongfully restraining any person, or for
putting any person in fear of hurt, or of assault, or of wrongful
restraint, shall be punished with imprisonment of either
description for a term which may extend to seven years,
E
.. and shall be liable to fine .
The only question that remains is whether the custodial
sentence as was imposed by the trial court was adequate or y
not i.e. confinement till rising of the court.
F It appears from record that the fine amount has been
deposited and the amount which was directed to be paid to
PW2 has already been paid. Considering this fact and the long
passage of time, it would appropriate to restrict the period of
sentence to the period already undergone. The appeals stand
_,_
G disposed of.
~~.
N.J. Appeals disposed of.
..