NANDA GOPALANversusSTATE OF KERALA

                   [2015] 4 S.C.R. 563


                   NANDA GOPALAN                            A
                            v.
                   STATE OF KERALA
            (Criminal Appeal No. 714 of 2015)
                                                            B
                     APRIL 24, 2015

             [ J. CHELAMESWAR AND ADARSH
                  KUMAR GOEL, JJ.]

     Penal Code, 1860: ss.324 and 326 - Allegation that
                                                            c
accused-appellant attacked PW-1 with a bat and as a result
PW-1 fell down and then appellant sat on his chest and
caused injuries to him with a stone - Trial court accepted
prosecution version and convicted and sentenced the o
appellant which was affirmed by High Court with reduction
in sentence - During pendency of appeal in High Court, a
settlement was reached between the parties and an
application was moved before the High Court for
compoun,ding the offence uls. 324 and for quashing the E
charge u/s.326 on the basis of compromise - Application
dismissed on ground that non compoundable offence could
not be settled between the parties - On appeal, Held: The
plea that weapon was not dangerous was neither raised in
the lower courts nor any evidence was led in that regard and F
in absence thereof, finding of courts below on nature of
charge cannot be interfered with, however in view of
compromise between the parties particularly when they are
close relatives, reduction in sentence is ordered - The
sentence of imprisonment of appellant reduced to the period G
already undergone, while the amount of compensation
increased to Rs.2 lakhs to be paid to the victim.

                           563                              H
564        SUPREME COURT REPORTS               [2015] 4 S.C.R.


A         Disposing of the appeal, the Court
      HELD: In the present case, neither in the courts
  below, the plea that weapon was not dangerous was
  raised nor any evidence was led, in absence of which
  the finding of the courts below on the nature of charge
8
  is not interfered with nor it is held that the nature of
  weapon used did not fall under Sections 324 and 326.
  As regards the sentencing policy, it is well settled that
  just and appropriate sentence has to be imposed
c keeping in mind the proportion between crime and
  punishment and having regard to the facts and
  circumstances of each case particularly, the nature of
  offence, the sentence prescribed, mitigating and
  extenuating and other attending circumstances.          In
D view of that, the sentence of imprisonment of the
  appellant is reduced to the period already undergone,
  while the amount of compensation is increased to Rs.2
  lakhs to be paid to the victim. [Paras 12, 13, 16] [571-A-
  C] [575-D]
E
      Dasan vs. State of Kera/a and Anr. 2014 (12) SCC 666;
  Mathai vs. State of Kera/a 2005 (3) SCC 260: 2005 (1)
  SCR 450; Anwarul Haq vs. State of U.P 2005 (10) SCC 581:
  2005 (3) SCR 917; State of M.P vs. Ghanshyam Singh
F 2003 (8) SCC 13:2003 (3) Suppl. SCR 618; Bankat vs.
  State of Maharashtra (2005) 1 SCC 343: 2004 (6) Suppl.
  SCR 406 - relied on.

      Regina vs. Bibi 1980 (1) WLR 1193 - referred to.
G                      Case Law Reference

        2014 (12) sec 666       relied on.         Para 7

        2005 (1) SCR 450        relied on.         Para 7
H       1980 (1) WLR 1193       referred to.       Para 7
        NANDA GOPALAN v. STATE OF KERALA                        565


  2005 (3) SCR 917                 relied on.    Para 11         A

  2003 (3) Suppl. SCR 618          relied on.    Para 13

  2004 (6) Suppl. SCR 406          relied on.    Para 15

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal             B
No. 714 of 2015.

    From the Judgment and Order dated 31.10.2014 of the
High Court of Kerala at Ernakulam in Crl.A.No. 285 of 2003.
                                                                 c
    RarTJ Jethmalani (AC), Karan Kalia, Pranav Diesh, P. R.
Mala, Shinoj K. Narayanan, K. Rajeev, Vipin Narayan for the
Appellant.

     Jogy Scaria, Joyti Mishra, Kaushal Yadav, Regan S. Bel
                                                                 0
for the Respondent.

    The Judgment of the Court was delivered by

     ADARSH KUMAR GOEL, J. 1. Leave granted. This
appeal has been preferred against judgment and order dated       E
31s1 October, 2014 passed by the High Court of Kerala at
Ernakulam in Criminal Appeal N.:..285 of 2003.

    2. The appellant stands c~nvicted under Sections 324
and 326 of the Indian Penal Code ("IPC") and sentenced to        F
undergo rigorous imprisonment for two years and three years
respectively and to pay fine of Rs.30,000/- to the injured as
compensation. The appellant is son of cousin of injured
Sukumaran (PW1 ).
                                                             G
    3. Prosecution case is that on 141h May, 1999 at 7.30
a.m., the appellant attacked PW 1 by using a bat made of
coconut leaf stem. PW 1 fell down on receiving the blow. The
appellant sat on the chest of PW 1 and caused injuries with
a stone. PW 1 became unconscious. He was admitted to H
566           SUPREME COURT REPORTS               [2015] 4 S.C.R.


A     Medical Trust Hospital, Ernakulam, wherein he remained
      indoor patient for 32 days. PW 10, Dr. Anandam
      Radhakrishnan, Casualty Medical Officer in the said hospital
      examined PW 1 at 8.45 a.m. and found following injuries as
      per Exhibit P5 :
B
        "(1) 4 x 1 ems through and through lacerated wound over
             left angle of the mouth extending upwards exposing
             left upper gum. The second, third and fourth teeth on
             the upper gum missing.
c
        (2)   4 x .5 x .5 ems lacerated wound over the lateral half
              of the left eyebrow with 1 cm long two extensions
              upwards.

        (3)   1 x .25 x .25 cm incised wound over the bridge of
D
              nose vertically placed.

        (4) Irregular tear of right pinna of the ear exposing
            cartilage.

E       (5)   Contusion over the right angle of the mandible.

        (6)   Contusion with swelling over left maxilla with two
              bleeding lacerated wound over it."

F      4. PW 2 recorded the First Information Report and
  conducted investigation and sent up the appellant for trial. The
  prosecution examined not only the injured PW 1, but also PWs
  2 and 3, his sons and PW 8 his wife, apart from independent
  witnesses PWs 4, 5 and 6. In addition, medical evidence and
G relevant documents were also produced.

      5. The trial court held the case of the prosecution to have
  been proved and convicted and sentenced the appellant which
  has been affirmed by the High Court with reduction in
H sentence. During pendency of the appeal in the High Court,
         NANDA GOPALAN v. STATE OF KERALA                      567
             [ADARSH KUMAR GOEL, J.]

a settlement was reached between the parties and an A
application was moved before the High Court for
compounding the offence under Section 324 and for quashing
the charge under Section 326 on the basis of compromise.
The application was dismissed on the ground that non
compoundable offence could riot be settled between the B
parties.

     6. We have heard Shri Ram Jethmalani, learned senior
counsel who has appeared as amicus curiae on the request
of the court and Shri Jogy Scaria, learned counsel for the C
State of Kerala.

     7. Shri Jethmalani submitted that though the offence
under Section 326 could not be compounded, the
compromise could be taken into account for reducing the o
sentence. He further submitted that since the weapon used
in the present case was not of the nature specified under
Sections 324 and 326, the charge could be altered to
Sections 323 and 325. Offence under Sections 323 is
compoundable and 325 is compoundable with the permission E
of the court. Shri Jethmalani has drawn the attention of the
Court to the judgments in Dasan vs. State of Kera/a and
another1, Mathai vs. State of Kera/;¥ and Regina vs. BibP.

     8. Learned counsel for the State opposed the above         F
submissions. According to him, the conviction under Sections
324 and 326 has been rightly recorded and no interference
is called for by this Court.

    9. While we have no difficulty in holding that taking into G

1 2014 (12) sec 666

2 2005 (3) sec 260

3 1980 (1) WLR 1193                                             H
568         SUPREME COURT REPORTS                  [2015] 4 S.C.R.


A     account the compromise between the parties particularly
      when they are close relatives, reduction in sentence can be
      ordered, we do no find any ground to interfere with the
      conviction of the appellant.

B         10. In Mathai, it was held:

           "16. The expression "any instrument which, used as
           a weapon of offence, is likely to cause death" (Section
           326) has to be gauged taking note of the heading of
c          the section. What would constitute a "dangerous
           weapon" would depend upon the facts of each case and
           no generalisation can be made.

           17. The heading of the section provides some insight
           into the factors to be considered. The essential
D
           ingredients to attract Section 326 are: (1) voluntarily
           causing a hurt; (2) hurt caused must be a grievous
           hurt; and (3) the grievous hurt must have been caused
           by dangerous weapons or means. As was noted by this
E          Court in State of U.P v. lndrajeet [2000 (7) SCC 249]
           there is no such thing as a regular or earmarked
           weapon for committing murder or for that matter a hurt.
           Whether a particular article can per se cause any
           serious wound or grievous hurt or injury has to be
F          determined factually As noted above, the evidence of
           the doctor (PW 5) clearly shows that the hurt or the
           injury that was caused was covered under the
           expression "grievous hurt" as defined under Section
           320 /PC. The inevitable conclusion is that a grievous
G          hurt was caused. It is not that in every case a stone
           would constitute a dangerous weapon. It would depend
           upon the facts of the case. At this juncture, it would be
           relevant to note that in some provisions e.g. Sections
           324 and 326 the expression "dangerous weapon" is
H
         NANDA GOPALAN v. STATE OF KERALA                        569
             [ADARSH KUMAR GOEL, J.]

      used. In some other more serious offences the A
      expression used is "deadly weapon" (e.g. Sections 397
      and 398). The facts involved in a particular case,
      depending upon various factors like size, sharpness,
      would throw light on the question whether the weapon
      was a dangerous or deadly weapon or not. That would B
      determine whether in the case Section 325 or Section
      326 would be applicable."

   11.       The matter was again considered in Anwarul
Haq vs. State of U.P. 4 :                               C

      "11 . .......... The plea that the weapon used was not a
      dangerous weapon had never been urged before the
      trial court or the High Court. Whether weapon is a
      dangerous weapon or not has to be gauged only on            o
      the factual basis. As there was no challenge on this
      aspect by the accused before the courts below, that
      plea for the first time cannot be permitted to be raised
      in this Court.
                                                                E
      12. Section 324 provides that "[w]hoever, except in the
      case provided for by Section 334, voluntarily causes
      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 F
      or any heated substance, or by means of 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 G
      any animal"

      can be convicted in terms of Section 324. The

4 2005 (10) sec 581                                               H
570   SUPREME COURT REPORTS                    (2015] 4 S.C.R.


A     expression "any instrument, which used as a weapon
      of offence, is likely to cause death" should be
      construed with reference to the nature of the instrument
      and not the manner of its use. What has to be
      established by the proseclltion is that the accused
 B    voluntarily caused hurt and that such hurt was caused
      by means of an instrument referred to in this section.

      13. The section prescribes a severer punishment where
      an offender voluntarily causes hurt by dangerous
c     weapon or other means stated in the section. The
      expression "any instrument which, used as a weapon
      of offence, is likely to cause death" when read in the
      light of marginal note to Section 324 means dangerous
      weapon which if used by the offender is likely to cause
 D    death.

      14. Authors of /PC observed, as noted below, the
      desirability for such severer punishment for the
      following reasons:
 E
        "... Bodily hurt may be inflicted by means the use of
       which generally indicates great malignity. A blow with
                                                                     ..
       the fist may cause as much pain, and produce as
       lasting an injury, as laceration with a knife, or branding
 F     .with a hot iron. But it will scarcely be disputed that, in    ..
       the vast majority of cases, the offender who has used
       a knife or a hot iron for the purpose of wreaking his
       hatred is a far worse and more dangerous member
       of a society than who has only used his fist. It appears
G      to us that many hurts which would not, according to
       our classification, be designated as grievous ought
       yet, on account of the mode in which are inflicted, to
       be punished more severely than many grievous
       hurts."
 H
             NANDA GOPALAN v. STATE OF KERALA                     571
                 [ADARSH KUMAR GOEL, J.]

     12. In the present case, neither in the courts below plea     A
that weapon was not dangerous raised nor any evidence led
in absence of which we are unable to interfere with the finding
of the courts below on the nature of charge or to hold that the
nature of weapon used does not fall under Sections 324 and
326.                                                               B

     13. As regards the sentencing policy, it is well settled that
just and appropriate sentence has to be imposed keeping in
mitid the proportion between crime and punishment and
having regard to the facts and circumstances of each case C
particularly, the nature of offence, the sentence prescribed,
mitigating and extenuating and other attending circumstances.
In State of M.P. vs. Ghanshyam Singh 5 , it was observed :

      "13. Criminal law adheres in general to the principle o
      of proportionality in prescribing liability according to the
      culpability of each kind of criminal conduct. It ordinarily
      allows some significant discretion to the Judge in
      arriving at a sentence in each case, presumably to
      permit sentences that reflect more subtle E
      considerations of culpability that are raised by the
      special facts of each case. Judges, in essence, affirm
      that punishment ought always to fit the crime; yet in
      practice sentences are determined largely by other
      considerations. Sometimes it is the correctional needs F
      of the perpetrator that are offered to justify a sentence,
      sometimes the desirability of keeping him out of
      circulation, and sometimes even the tragic results of
      his crime. Inevitably, these considerations cause a
      departure from just deserts as the basis of punishment G
      and create cases of apparent injustice that are serious
      and widespread.

5 2003 (BJ   sec 13                                                H
572   SUPREME COURT REPORTS                   (2015] 4 S.C.R.

A     14. Proportion between crime and punishment is a goal
      respected in principle, and in spite of errant notions, it
      remains a strong influence in the determination of
      sentences. The practice of punishing all serious crimes
      with equal severity is now unknown in civilized
B     societies, but such a radical departure from the
      principle of proportionality has disappeared from the
      law only in recent times. Even now for a single grave
      infraction drastic sentences are imposed. Anything less
      than a penalty of greatest severity for any serious
c     crime is thought then to be a measure of toleration that
      is unwarranted and unwise. But in fact, quite apart from
      those considerations that make punishment
      unjustifiable when it is out of proportion to the crime,
      uniformly disproportionate punishment has some very
D
      undesirable practical consequences.

      15. After giving due consideration to the facts and
      circumstances of each case, for deciding just and
      appropriate sentence to be awarded for an offence, the
E     aggravating and mitigating factors and circumstances
      in which a crime has been committed are to be
      delicately balanced on the basis of really relevant
      circumstances in a dispassionate manner by the court.
      Such act of balancing is indeed a difficult task. It has
 F
      been very aptly indicated in Dennis Councle
      McGautha v. State of California [402 US 183} that no
      formula of a foolproof nature is possible that would
      provide a reasonable criterion in determining a just
G     and appropriate punishment in the infinite variety of -
      circumstances that may affect the gravity of the crime.
      In the absence of any foolproof formula which may
      provide any basis for reasonable criteria to correctly
      assess various circumstances germane to the
H     consideration of gravity of crime, the discretionary
         NANDA GOPALAN v. STATE OF KERALA                      573
             [ADARSH KUMAR GOEL, J.]

      judgment in the facts of each case is the only way in A
       which such judgment may be equitably distinguished".

     14. In Dasan, it was observed :

      "7. Section 320 of the Criminal Procedure Code ("the
                                                                8
      Code'/ pertains to offences punishable under the Penal
      Code only. It states which offences can be
      compounded, by whom they can be compounded and
      which offences can be compounded only with the
      permission of the concerned court. Sub-sections 3 to      c
      8 thereof further clarify how Section 320 of the Code
      operates. Sub-section 9 thereof states that no offence
      shall be compounded except as provided by this
      section. The legislative intent is, therefore, clear.
      Compounding has to be done strictly in accordance         o
      with Section 320 of the Code. No deviation from this
      provision is permissible."

   15. In Bankat vs. State of Mal1arashtra 6, it was
observed:                                                       E
     "11. In our view, the submission of the learned counsel
     for the respondent requires to be accepted. For
     compounding of the offences punishable under /PC,
     a complete scheme is provided under Section 320 of F
     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 offences mentioned in the G
     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

6 (2oosi 1 sec 343                                              H
574   SUPREME COURT REPORTS                   [2015] 4 S.C.R.

A     compounded except as provided by this section". In
      view of the aforesaid legislative mandate, only the
      offences which are covered by Table 1 or Table 2 as
      stated above can be compounded and the rest of the
      offences punishable under /PC could not be
B     compounded.

      12. Further, the decision in Ram Pujan case {1973 (2)
      sec 456] 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 case
      [1999 (2) SCC 213] the Court referred to the decision
D     of this Court in Y Sure sh Babu v. State of A. P [2005
      (1) sec 347] and to the following observations made
      by the Supreme Court in Mahesh Chand case [(1990)
      Supp. SCC 681] (SCC p. 682, para 3):

E      "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 the
       offence was committed, it may be proper that the trial
F      court shall permit them to compound the offence."

      and held as under: (SCC p. 214, para 3)

      "We are unable to follow the said decision as a
G     binding precedent. Section 320 which deals with
      'compounding of offences' provides two Tables
      therein, one containing descriptions of offences which
      can be compounded by the person mentioned in it,
      and the other containing descriptions of offences
H     which can be compounded with the permission of the
          NANDA GOPALAN v. STATE OF KERALA                      575
              [ADARSH KUMAR GOEL, J.]

       court by the persons indicated therein. Only such A
       offences as are included in the said two Tables can
       be compounded and none else."

      13. In the case of Y. Suresh Babu the Court has
      specifically observed that the said case "shall not be B
      treated as a precedent". The 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 sub-section (9) of Section 320
      was not drawn. Hence, the High Court rightly refused C
      to grant permission to compound the offence
      punishable under Section 326."

     16. In view of the above, we are inclined to reduce the
sentence of imprisonment of the appellant to the period          o
already undergone, while increasing the amount of
compensation to Rs.2 lakhs to be paid to the victim within
three months, failing which the sentence awarded by the High
Court will stand affirmed.
                                                                 E
     17. The appeal is disposed of in above terms.
Devika Gujral                             Appeal disposed of.



                                                                 F