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Supreme Court of India
Pravat Chandra Mohanty vs The State Of Odisha on 11 February, 2021Author: Ashok Bhushan
Bench: Ashok Bhushan, R. Subhash Reddy
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 125 OF 2021
(arising out of SLP (Crl.)No.6174/2020)
PRAVAT CHANDRA MOHANTY …APPELLANT(S)
VERSUS
THE STATE OF ODISHA & ANR. …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 126 OF 2021
(arising out of SLP (Crl.)No.6224/2020)
PRATAP KUMAR CHOUDHURY …APPELLANT(S)
(IN JUDICIAL CUSTODY)
VERSUS
THE STATE OF ODISHA …RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
Leave granted.
2.
Signature Not Verified
These two appeals by the accused have been filed
Digitally signed by
MEENAKSHI KOHLI
against the common judgment of the Orissa High Court
Date: 2021.02.11
14:47:12 IST
Reason:
dated 09.11.2020 dismissing the Criminal Appeal Nos.
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207 and 210 of 1988 filed by the appellants. Both the
appellants being the accused in Lal Bagh P.S.Case
No.273 of 1985 were tried in Sessions Trial No.246 of
1985 for the offences punishable under Sections 304,
342, 323, 294, 201 167, 477-A, 471 read with Section 34
of the IPC. Learned Sessions Judge convicted the
accused Pratap Kumar Choudhury under Section 304 (Part
II) IPC to undergo R.I. for eight years and accused
Pravat Chandra Mohanty under Section 304 (Part II) to
undergo R.I. for five years. Both the accused were
further sentenced under Section 471 IPC read with
Section 466 IPC to undergo R.I. for three years and
R.I. for three months under Section 342 IPC and R.I.
for one month under Section 323 IPC by judgment dated
29.08.1988.
3. Aggrieved by the judgment of the trial court the
appellants, Pravat Chandra Mohanty (hereinafter
referred to as “Mohanty”) filed Criminal Appeal No.207
of 1988 and Pratap Kumar Choudhury (hereinafter
referred to as “Choudhury”) filed Criminal Appeal
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No.210 of 1988 before the Orissa High Court. The High
Court decided both the appeals by its judgment and
order dated 09.11.2020 partly allowing the appeals. The
conviction of both the appellants under Section 304
(Part II) IPC read with Section 34 IPC and Section
342/34 IPC was set aside and their conviction under
Sections 323/34 IPC and 471/34 IPC was upheld. The High
Court convicted both the appellants under Section
324/34 IPC. Simple imprisonment for one month was
imposed under Section 323/34 IPC. Simple imprisonment
for three months for the offence under Section 471/34
IPC and simple imprisonment for one year for the
offence under Section 324/34 IPC were imposed by the
High Court. All the sentences were to run
concurrently. Aggrieved by the above judgment these
appeals have been filed.
4. When these appeals were taken by this Court on
17.12.2020, learned counsel for the appellants confined
his submissions to the conviction under Section 324 IPC
only. Learned counsel for the appellants further
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volunteered that the appellants are willing to
compensate the family of the deceased. Following order
was passed on 17.12.2020 by this Court:
“Learned senior counsel for the
petitioners confines his submissions to the
conviction under Section 224 of the IPC on the
ground that what was used was a baton. He
volunteers that the petitioners are willing to
compensate the family of the deceased and that
they are now in their middle 70s. On a Court
query learned counsel offers and agrees to
deposit Rs.3.5 lakhs each for the two
petitioners each totaling to Rs.7 lakhs as
compensation in this Court within three weeks
so that the total compensation admissible to
the family would be 10 lakhs taking into
consideration Rs. 3 lakhs awarded to the legal
representatives of the deceased which the State
Government would have paid.
Issue notice on the SLP as well as on the
interim bail returnable in the first
miscellaneous week post the winter recess.
We consider appropriate to implead the
legal representatives of the deceased as
respondents.
Amended memo of parties be filed.
Notice be also issued to the said
respondents.
Dasti in addition through the standing
counsel for the State and to the legal heirs of
the deceased in person.”
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5. Legal heirs/representatives of the deceased were
impleaded in these appeals and they entered appearance
before this Court. On 08.01.2021 following order was
passed:
“Applications for exemption from filing
c/c of the impugned judgment and official
translation are allowed.
Learned counsel for the legal heirs of the
deceased have entered appearance through
counsel and are agreeable to the proposal made
by learned counsel for the petitioner on
17.12.2020 which was recorded by us.
Learned counsel for the State submits that
he has just entered appearance and may be given
a short accommodation to obtain instructions
and make necessary submissions.
List on 13.01.2021.
Both the learned senior counsel for the
petitioner and learned counsel for the State
will submit a one page synopsis in advance on
the course of action suggested by them.”
6. Thereafter, the appeals were heard by this Court on
04.02.2021. We have heard Shri R. Basant, learned
senior counsel and Shri Yasobant Das, learned senior
counsel for the appellants. Shri Ravi Prakash Mehrotra
has appeared for the State of Odisha and Ms. Priyanka
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Vora has appeared for the legal representatives of the
deceased.
7. Shri Basant, learned senior counsel, submits that
in pursuance of this Court’s order dated 17.12.2020,
the appellants have already deposited the amount of
Rs.3.5 lakhs each in the Registry of the Court. He
submits that learned counsel appearing for the legal
representatives are also agreeable with the proposal
made by the learned counsel for the appellants, hence,
conviction under Section 324 IPC be compounded by this
Court under Section 320(2) Cr.P.C.
8. Learned counsel submits that on the date when the
offences took place, i.e. 04.5.1985, offences under
Section 324 IPC were compoundable which subsequently
have been made non-compoundable. He submits that both
the appellants are now more than 75 years of age and
acting under the order of this Court dated 17.12.2020,
the appellants having deposited amount for compensation
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to be paid to the legal heirs, the offences be
compounded.
9. In addition to the above submission, learned
counsel for the appellants has also contended that
conviction under Section 324 IPC by the High Court is
unsustainable. He submits that the conviction under
Section 324 IPC deserves to be converted to the
conviction under Section 323 IPC. He submits that the
ingredients of Section 324 IPC are not made out from
the evidence brought on record. He submits that
injuries which were found on the body of the deceased
were all simple injuries. He submits that weapon of
offence being only a wooden batten/lathi which weapon
was not likely to cause death, hence, conviction under
Section 324 was unjustified. He further contends that
either the offence be converted under Section 323 IPC
or imprisonment be substituted by fine.
10. Shri Basant further submits that alleged weapons of
offence, i.e., MO.IV and MO.VII were not shown to PW.1
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during trial for identification. Learned counsel
further submits that there were material contradictions
in the statement of PW.1-Kusia Naik, so his evidence
deserved to be rejected. He submits that the High Court
itself has found the statement of PW.1 only partially
reliable. Shri Basant, however, fairly submitted that
conviction under Section 471 IPC is not sought to be
compounded which is non-compoundable. Learned counsel
has not challenged the conviction under Section 471/34
IPC and is confined his submission only with regard to
the conviction under Section 324 IPC.
11. Learned counsel for the State of Odisha, Shri
Mehrotra, referring to affidavit filed on behalf of the
State submits that with regard to the amount of
compensation directed by the High Court to be given by
the State Government, the State Government has
completed necessary procedural formalities and would
deposit or give the compensation amount as directed by
the High Court to the legal representatives in the mode
and manner as this Court would please direct.
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12. Learned counsel appearing for the legal
representatives of the deceased, Kasinath Naik,
expressed their agreement to proposal of the learned
counsel for the appellants as noticed in the order
dated 17.12.2020.
13. We have considered the submissions of the learned
counsel for the parties and perused the record.
14. The High Court in its judgment has noticed the
prosecution case in paragraph 2 of the judgment.
Paragraph 2 of the High Court judgment is as follows:
“2. The prosecution case, as per the first
information report (Ext.1) lodged by Kusia
Nayak (P.W.1) on 05.05.1985 (Sunday) at 11 a.m.
before the D.S.P., City, Cuttack(S) is that the
informant was staying in a rented house of one
Bishnu Mohanty of Rajabagicha, Cuttack. On
02.05.1985 he had been to Nayagarh in
connection with the marriage of his nephew and
returned home to Cuttack in the morning hours
of 04.05.1985. After arrival, he was informed
by his wife Kanchan Dei (P.W.18) that there was
quarrel between their Basti residents Sura and
Bainshi on Friday. He went to the market and
returned at about 4 p.m. when his wife told him
that Pramod Naik, Benu Naik and Guna Naik were
abusing her in filthy language and telling her
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to drive out her family members as they had no
houses and no holding numbers. The informant
was also told by his wife that 4 Thana Babu of
Purighat police station had called him to go to
the police station. After sometime, Kasinath
Naik (hereafter ‘the deceased’) also told the
informant that the constable had come and told
him in that respect. Accordingly, both the
informant and the deceased decided to go to
Purighat police station. In the evening hours,
when both of them reached at Purighat police
station, one police officer having mustache
told the deceased that on the next time, he
would cause fracture of the hands and legs of
the son of the deceased by assaulting him as
the later had filed a case against him before
the Legal Aid. The deceased remained silent.
The said police officer also used slang
language against the deceased and told that he
belonged to Alisha Bazar, Cuttack and he would
not allow the family of the deceased to stay at
Cuttack and no lawyer could do anything to him.
The deceased replied to the said police officer
that on being assaulted, his wife and son had
filed the case before the Legal Aid and he did
not know anything in that respect.
It is further stated in the first
information report that the said police officer
having mustache gave a kick to the deceased and
again used slang language and also gave two
blows on the hands of the informant and also
kicked him. Then said police officer having
mustache further assaulted the 5 deceased who
cried aloud and in that process, he sustained
bleeding injuries on his body. The informant
was asked to wait in one room of the police
station and the deceased was taken to the other
side verandah of the police station and was
assaulted. Though the informant was not able to
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see the assault but he could hear the cries of
the deceased. Then the police officer called
the informant outside and after he came out, he
saw the appellant Pravat Mohanty assaulting the
deceased by means of a stick and the deceased
was crying aloud. The informant gave water to
the deceased on being told by the police
officer but the deceased was having no strength
to walk and he was just crawling. The deceased
came near the informant and he was having
bleeding injuries on his hands and necks and
the legs were swollen. The deceased was telling
that he would not survive and would die. When
the deceased sought permission to attend the
call of nature, the police officer having
mustache and appellant Pravat Mohanty further
assaulted him. When the deceased again
requested to attend the call of nature, with
permission of the police officer, the informant
took him for such purpose and after they
returned, the appellant Pravat Mohanty asked
the deceased as to why he was limping. The
deceased was given bread to eat but when he
refused, appellant Pravat Mohanty compelled him
to take bread and further assaulted him 6 on
his knee. Getting indication from the
constable, the informant concealed the bread
and told the police officer that the deceased
had already taken the bread. The said police
officer brought liquor in a bottle and poured
it in the mouth of the deceased as well as the
informant and then sprinkled liquor over them
and went outside of the police station. Sura
Naik (P.W.13) who belonged to the Basti of the
informant came to the police station and talked
with one Mishra Babu secretly but on seeing the
deceased and the informant, he went away. Then
appellant Pravat Mohanty again assaulted the
deceased and asked him to sit in a vehicle to
go to the hospital. At that time, it was 11 to
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12 O’ clock in the night. The appellant Pravat
Mohanty, a driver and a constable lifted the
deceased and placed him inside the vehicle and
he was crying that he would not survive. When
the informant expressed his eagerness to
accompany the deceased to the hospital, he was
told that there was no necessity to accompany
the deceased even though the deceased was
calling the informant to accompany him. After
the deceased was taken away from the police
station, one constable chained the left leg of
the informant to a table of the police station
and in the morning hours, the informant was
untied as per the instruction of the appellant
Pravat Mohanty. One sweeper was called to the
police station and he was asked to clean the
blood and stool of 7 the deceased which was
lying at different places inside the police
station. At that time the informant came to
know that the deceased had died in the hospital
last night. The widow of the deceased had also
come to the police station crying but she was
not allowed to stay there by the Havildar. It
is mentioned in the first information report
that the police officer having mustache was a
fair and tall person.
On receipt of such first information
report, Purighat/ Lalbag P.S. Case No.273 of
1985 was registered under sections 302, 342,
323, 294, 201 read with section 34 of the
Indian Penal Code on 05.05.1985 at 11 a.m.
against appellant Pravat Mohanty and the other
police officer of Purighat police station
having mustache.”
15. The prosecution in the trial has examined 39
witnesses, i.e., PW.1 to PW.39. PW.1, Kusia Naik, being
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informant, eye-witness and injured witness and PW.39
Gaganbehari Mohanty, being the IO. No witness was
examined for the defence. A large number of Exhibits
running Ext.1 to Ext.67/1 were produced by the
prosecution. Ext.A to Ext.J were also admitted into the
evidence by defence. MO.I to MO.VII were material
objects. After marshalling evidence on record, the
learned trial judge while holding conviction under
Section 304 (Part-II) read with Section 34 IPC recorded
its conclusion in paragraph 74 which is to the
following effect:
“74. It is thus found that there is nexus
between death of the deceased and the act of
the accused persons in subjecting him to long
detention throughout the night and in
mercilessly beating him. Therefore, it is clear
that such death was caused by the act of the
accused persons. They did it in furtherance of
their common intention. The facts of the case
disclose that there might not be an intention
to cause such bodily injury as was likely to
cause death. But the facts disclose that the
accused persons knew that their act would be
likely to cause death. Hence, it is found that
the accused persons also committed an offence
punishable u/s 304(Part-II) I.P.C. read with
section 34 IPC.”
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16. The defence which was taken on behalf of the
accused before the Courts below was that deceased,
Kasinath Naik came to Purighat Police Station at about
9 p.m. on 04.05.1985 to lodge an FIR regarding
occurrence of assault on the deceased which took place
on the Kathajori River embankment at about 9 p.m. by
some unknown person in which the deceased sustained
injuries. The case No.272/1985 was registered by
appellant, Mohanty who directed the appellant Choudhury
to investigate the case and maintain case diary. In
order to substantiate its plea the evidence regarding
FIR in Case No.272/1985 the case diary maintained in
the said case by the appellant Choudhury was marked as
Ext.63.
17. The High Court after marshalling the evidence on
record has held that the FIR lodged to have been signed
by the deceased, Kasinath Naik on which Lalbag P.S.
Case No.272 of 1985 was registered did not contain the
signature of Kasinath Naik. In Case No.272/1985 final
report was submitted indicating the case to be false.
15
No one challenged the final report submitted in Case
No.272/1985. It is relevant to notice the relevant
discussion by the High Court which is to the following
effect:
“In view of the foregoing discussions, the
defence plea that any occurrence of assault on
the deceased took place on the Kathajori river
embankment on 04.05.1985 at about 9.00 p.m. in
which the deceased sustained injuries and came
to lodge the first information report to
Purighat police station and accordingly, the
F.I.R. was registered and that as per the
direction of appellant Pravat Mohanty,
appellant P.K. Choudhury took up investigation
of the case and maintained case diary vide
Ext.63 mentioning all correct state of affairs
is not acceptable. I am of the considered view
that the deceased had not presented any F.I.R.
on 04.05.1985 at 10 p.m. at Purighat police
station and a false F.I.R. is shown to have
been presented by him which carries the forged
signature of the deceased vide Ext.A.”
18. Both the appellants have been convicted under
Section 371/34 IPC by the courts below, finding offence
of forging and fabrication of record to be proved. The
reason for fabricating the false story that deceased,
Kasinath Naik came to Police Station to lodge an FIR
about the assault on him at 9 p.m. was only with a view
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to save the accused, with intent to explain injuries
caused on the body of deceased which he received during
his stay in the Police Station. As noted above, the
conviction of the appellants under Section 371/34 IPC
has not been challenged before us. The defence taken by
the appellants has miserably failed. The High Court
after re-appraising the evidence on record including
the oral and documentary evidence has come to the
conclusion that ante-mortem injuries noticed on the
person of the deceased as per postmortem report were
caused in Purighat Police Station during his stay from
7.30 p.m. till post midnight on 4/5.05.1985 and the
evidence of the scientific officer and chemical report
also corroborates the assault at the police station and
the appellants were author of those injuries. The trial
court has also held in its judgment after marshalling
the entire evidence that injuries were caused to the
deceased, Kasinath Naik in the Police Station, Purighat
by both the accused. The High Court on reappraisal of
the evidence came to the same finding.
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19. We have carefully perused the judgment of the trial
court as well as the High Court and have adverted to
the marshalling of oral evidence by both the Courts
below as well as analysis of the documentary evidence
on record where evidence of PW.1, who was the informant
and eye-witness has rightly been believed by the trial
court and the High court to the fact that both deceased
and informant arrived at Police Station after 7.30 p.m.
and they were mercilessly beaten by Choudhury and
Mohanty. In spite of Varandah of the Police Station
washed in the morning by the sweeper, the scientific
officer, who visited the police station found the blood
stains in the Varandah.
20. The evidence of PW.1 could not have been discarded
merely because he was an agnate of the deceased. In the
long cross-examination, PW.1 could not be shaken and
his evidence of account given of beating of the
deceased by the Police Officers, i.e., Choudhury and
Mohanty is to be believed and relied on.
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21. Now, we may notice the submissions of the learned
counsel for the appellants challenging their conviction
under Section 324 IPC. Section 324 IPC reads:
“Section 324. Voluntarily causing hurt by
dangerous weapons or means.—Whoever, except in
the case provided for by section 334, volun-
tarily causes hurt by means of any instrument
for shooting, stabbing or cutting, or any
instrument which, used as weapon of offence, is
likely to cause death, or by means of fire 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 any animal, shall be
punished with imprisonment of either de-
scription for a term which may extend to three
years, or with fine, or with both.”
22. Emphasis of learned counsel for the appellants is
that only lathi and wooden batten were alleged to have
been used as weapons of offence, use of which weapons
cannot be said to be likely to cause death. MO.IV was a
bamboo lathi and Mo.VII was a wooden batten. Section
324 IPC uses the examination of “weapon of offence”.
The submission cannot be accepted that use of wooden
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lathi and batten are weapons which are not likely to
cause death. Wooden lathi and batten are the weapons
which are usely possessed by the police and the
submission cannot be accepted that the injuries cannot
be caused by wooden lathi and batten which may cause
death. It depends on the manner of use of the wooden
lathi and batten.
23. Learned counsel further submits that MO.IV and
MO.VII were not shown to PW.1 during trial for
identification. MO.IV and MO.VII were seized and
exhibited as material objects. The failure of
prosecution to show the MO.IV and MO.VII to PW.1 in no
manner can be said to be fatal to the prosecution case.
Wooden lathi and batten are the weapons of the police
force and the injuries having caused to the deceased by
these weapons as has been found by the trial court and
High Court, non-showing to PW.1 cannot impeach the
credibility of evidence of PW.1.
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24. Now, we look into the injuries which were found on
the body of deceased. Post Mortem report is Exhibit-43.
PW.-37 Dr. Debendra Kumar Pattnaik, had conducted the
post mortem, who also appeared in the Court. The
external injuries found on the body of the deceased are
as follows:-
“1. Pattern bruise and abrasion in an
area of 5” x 3” on the lateral side of
right thigh at its lower 1/3rd.
2. Pressure abrasion 2” x ½” in front
of right leg 4” below the right knee.
3. Pressure abrasion 1.1/2” x 1/2″ in
the medial aspect of right leg 2.1/2”
above the medial malieolus.
4. Multi-pressure abrasion in an area
of 10” x 4” in front of left leg
3.1/2” below the knee.
5. Lacerated wound 1/5” x 1/4% x skin
deep 4.1/2” below the left knee in
front without involving the bone.
6. Grazed abrasion ½” x ½” on the
left buttock 2” away from the anus.
7. Pressure abrasion in an area of 2”
x 1” on left elbow joint on its
posterior as pect.
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8. Pattern bruise in an area of 7” x
5” on the lateral aspect of the left
thigh.
9. Pattern bruise in an area of 20” x
3” on the right hand from 3” above the
elbow to the dorsom of palm.
10. Pattern bruise 12 cm x 1” size in
the left side of back over the
scapuliar region.
11. Pattern bruise 12 cm x 1” on left
side of back over the left scapula
region.”
25. The trial court has also convicted on the inquest
report prepared by accused P.K. Chaudhary, i.e.,
Exhibit-16. The trial court has after considering the
evidence recorded the findings that with mala fide
intentions to suppress the injuries, description of
injuries have been minimized in Exhibit-16 by accused
P.K. Chaudhary. We are not persuaded to accept
submissions of learned counsel for the appellants that
conviction by the High Court under Section 324 IPC is
initiated. We, thus, affirm the conviction of accused
under Section 324 IPC.
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26. Now, we come to the submission, which has been
much pressed by learned counsel for the appellant,
i.e., composition of offence under Section 324 IPC.
Section 320 of the Code of Criminal Procedure, 1973,
provides for compounding of offence. Sub-Section (1) of
Section 320 contains a table which may be compounded by
persons mentioned in third column of the table whereas
sub-section (2) of Section 320 provides: –
“320(2). The offences punishable under
the sections of the Indian Penal Code
(45 of 1860) specified in the first
two columns of the table next
following may, with the permission of
Court before which any prosecution for
such offence is pending, be compounded
by the persons mentioned in the third
column of that table.”
27. Sub-Section (5) of Section 320 provides as
follows: –
“320(5). When the accused has been
committed for trial or when he has been
convicted and an appeal is pending, no
composition for the offence shall be
allowed without the leave of the Court
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to which he is committed, or, as the
case may be, before which the appeal is
to be heard.”
28. The present is a case where accused has already
been convicted for offence under Section 324 IPC. By
Cr.P.C. (Amendment) Act, 2005, offence under Section
324 IPC has been made non-compoundable offence. Prior
to the aforesaid amendment, offence under Section 324
was compoundable. Learned counsel for the appellants is
right in his submissions that on the date when offence
was committed, i.e., 04/05.05.1985, the offence under
Section 324 IPC was compoundable. We, thus, need to
examine as to whether in the present case, the request
of the appellants to which learned counsel appearing
for the legal representative of the deceased have also
agreed need to be accepted and this Court may permit
compounding of offence under Section 324 IPC.
29. The offence under Section 324 in the facts of the
present case can be compounded only with permission of
the Court. Sub-Section (5) of Section 320 provides that
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“no composition for the offence shall be allowed
without the leave of the Court.” Thus, the composition
of the offence in the facts of the present case is not
permissible only on the agreement on the request of the
appellant which may be also accepted by the legal heirs
of the deceased but composition is permissible only by
the leave of the Court.
30. The grant of leave as contemplated by sub-section
(5) of Section 320 is not automatic nor it has to be
mechanical on receipt of request by the appellant which
may be agreed by the victim. The statutory requirement,
makes it a clear duty of the Court to look into the
nature of the offence and the evidence and to satisfy
itself whether permission should be or should not be
granted. The administration of criminal justice
requires prosecution of all offenders by the State.
31. The prosecution by the State is the policy of law
because all the offences are against the society. The
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offenders have to bring to the Courts and punish for
their offences to maintain peace and order in the
society. It is the duty of the prosecution to ensure
that no offender goes scot-free without being punished
for an offence. It is also the settled principle of law
that innocent should not be punished.
32. The question arises as to while granting leave of
the Court for composition of offence, what is the
guiding factor for the Court to grant or refuse the
leave for composition of offence. The nature of
offence, and its affect on society are relevant
considerations while granting leave by the Court of
compounding the offence. The offences which affect the
public in general and create fear in the public in
general are serious offences, nature of which offence
may be relevant consideration for Court to grant or
refuse the leave. When we look into the conclusion
recorded by the trial court and the High Court after
marshalling the evidence on record, it is established
26
that both the accused have mercilessly beaten the
deceased in the premises of the Police Station. Eleven
injuries were caused on the body of the deceased by the
accused. As per the evidence of PW-1, which has been
believed by the Courts below, the victim was beaten
mercilessly so that he passed on, stool, Urine and
started bleeding.
33. We may refer to a Division Bench Judgment of Nagpur
High Court reported in Provincial Government, Central
Provinces and Berar vs. Bipin Singh Choudhary, AIR
(1945) Nagpur, Oudh, Peshawar & Sind 104, where the
Division Bench consisted of Justice Vivian Bose(as he
then was), had occasion to consider the provisions of
Section 345 Criminal Procedure Code, 1898, which are
pari materia provision to Section 320 Cr.P.C. In the
above case, the Government had filed an appeal where
sanction was accorded under Section 345(2) Cr.P.C. to
the compounding of offence of cheating. The respondent
accused in that case was found guilty of cheating. He
27
had cheated a litigant. The accused was clerk in the
High Court. He induced the complainant to pay him a sum
of Rs. 2,000/- stating that accused would hand it over
to one of the Judges in charge of the complainant’s
case as a bribe. Learned Magistrate has accorded
sanction stating that complainant and accused were
friends and it would be pity to disturb their friendly
relations with which public at large are not concerned
and in which they are not interested.
34. The Division Bench of the High Court expressed its
disagreement with the view taken by the Magistrate. The
Court held that the matter was of a very great public
concern. The Division Bench held following in the above
case: –
“…The matter is, however, aggravated when we
find that the person who is said to have done
the cheating is a clerk of the Court. All
public servants attached to a Court are
trustees and guardians of the honour and
integrity of the Court. It is a matter of grave
import if any of them attempts to extract an
illegal gratification or extort money from
those who seek access to the Courts, or
28
endeavours to lead them astray and, by abusing
his position, tries to enrich himself. Persons
in this class of life are looked upon as
persons of influence and of some authority by
the ordinary ignorant public. If therefore they
abuse the position of confidence in which they
are placed by reason of their office, it
becomes a matter of great public concern. In
our opinion, it is perverse to consider
otherwise. If ever there was a case in which
composition should have been refused, this is
such a case…”
35. The ratio of the judgment is that in event people
holding public office abuse their position, it becomes
a matter of great public concern. We fully endorse the
above view of the Nagpur High Court.
36. Present is a case where the offence was committed
by the in-charge of the Police Station, Purighat, as
well as the Senior Inspector, posted at the same Police
Station. The Police of State is protector of law and
order. The people look forward to the Police to protect
their life and property. People go to the Police
Station with the hope that their person and property
will be protected by the police and injustice and
29
offence committed on them shall be redressed and the
guilty be punished. When the protector of people and
society himself instead of protecting the people adopts
brutality and inhumanly beat the person who comes to
the police station, it is a matter of great public
concern. The beating of a person in the Police Station
is the concern for all and causes a sense of fear in
the entire society.
37. We may refer to the judgment of this Court in
Yashwant and others vs. State of Maharashtra, (2019) 18
SCC 571, where this Court laid down that when the
police is violator of the law whose primary
responsibility is to protect the law, the punishment
for such violation has to be proportionately stringent
so as to have effective deterrent effect and instill
confidence in the society. Following was laid down in
paragraph 34: –
“34. As the police in this case are the
violators of law, who had the primary
responsibility to protect and uphold law,
30
thereby mandating the punishment for such
violation to be proportionately stringent so as
to have effective deterrent effect and instill
confidence in the society. It may not be out of
context to remind that the motto of Maharashtra
State Police is “Sadrakshnaya
Khalanighrahanaya” (Sanskrit: “To protect good
and to punish evil”), which needs to be
respected. Those, who are called upon to
administer the criminal law, must bear, in
mind, that they have a duty not merely to the
individual accused before them, but also to the
State and to the community at large. Such
incidents involving police usually tend to
deplete the confidence in our criminal justice
system much more than those incidents involving
private individuals. We must additionally
factor this aspect while imposing an
appropriate punishment on the accused herein.”
38. The observations as quoted above are fully
attracted in the facts of the present case. We, thus,
are of the considered opinion that present is a case
where this Court is not to grant leave for compounding
the offences under Section 324 IPC as prayed by the
counsel for the appellants. The present is a case where
the accused who were police officers, one of them being
in-charge of Station and other Senior Inspector have
themselves brutally beaten the deceased, who died the
same night. Their offences cannot be compounded by the
31
Court in exercise of Section 320(2) read with sub-
section (5). We, thus, reject the prayer of the
appellants to compound the offence.
39. From the order which was passed by this Court on
17.12.2020, this Court has noticed the submission of
the counsel for the appellants that they are ready to
compensate the family of the deceased. The Court
noticing the said statement had issued notice in the
matter. The appellants have also deposited the amount
of Rs.3.5 Lakhs each as offered by their counsel
recorded in the order dated 17.12.2020.
40. The custodial violence on the deceased which led
to the death is abhorrent and not acceptable in the
civilized society. The offence committed by the accused
is crime not against the deceased alone but was against
humanity and clear violations of rights guaranteed
under Article 21 of the Constitution. Although the High
Court has awarded the compensation of Rs.3 Lakhs in
favour of the legal representatives of the deceased. We
32
are of the view that compensation awarded was not
adequate.
41. We may further notice that this Court has taken
the view that even when prayer for compounding of the
offence is refused, the Court can consider in
appropriate case, the question of sentence. We may
refer to Gulab Das and others vs. State of Madhya
Pradesh, (2011) 10 SCC 765. In the above case, the
Court refused to compound the offence but the Court
proceeded to interfere with the question of sentence.
In paragraph 10, following was laid down:-
“10. Having said that, we are of the view that
the settlement/compromise arrived at between
the parties can be taken into consideration for
the purpose of determining the quantum of
sentence to be awarded to the appellants. That
is precisely the approach which this Court has
adopted in the cases referred to above. Even
when the prayer for composition has been
declined this Court has in the two cases
mentioned above taken the fact of settlement
between the parties into consideration while
dealing with the question of sentence. Apart
from the fact that a settlement has taken place
between the parties, there are few other
circumstances that persuade us to interfere on
33
the question of sentence awarded to the
appellants.”
42. To the same effect is the another judgment of this
Court in Ishwar Singh vs. State of Madhya Pradesh,
(2008) 15 SCC 667, following was laid down in paragraph
12, 13 and 14:-
“12. Now, it cannot be gainsaid that
an offence punishable under Section
307 IPC is not a compoundable offence.
Section 320 of the Code of Criminal
procedure, 1973 expressly states that
no offence shall be compounded if it
is not compoundable under the Code. At
the same time, however, while dealing
with such matters, this Court may take
into account a relevant and important
consideration about compromise between
the parties for the purpose of
reduction of sentence.
13. In Jetha Ram v. State of
Rajasthan, Murugesan v. Ganapathy
Velar and Ishwarlal v. State of M.P.
this Court, while taking into account
the fact of compromise between the
parties, reduced sentence imposed on
the appellant-accused to already
undergone, though the offences were
not compoundable. But it was also
stated that in Mahesh Chand v. State
of Rajasthan such offence was ordered
to be compounded.
34
14. In our considered opinion, it
would not be appropriate to order
compounding of an offence not
compoundable under the Code ignoring
and keeping aside statutory
provisions. In our judgment, however,
limited submission of the learned
counsel for the appellant deserves
consideration that while imposing
substantive sentence, the factum of
compromise between the parties is
indeed a relevant circumstance which
the Court may keep in mind.”
43. Looking to the facts that both the appellants are
more than 75 years of age now, we are of the considered
opinion that the ends of justice be served in reducing
the sentence awarded for conviction under Section 324
IPC to six months instead of one year. Additionally the
legal heirs of the deceased can be compensated by the
compensation which has been offered and deposited by
the appellant in this Court. Thus, sentence of one year
is reduced to six months by awarding compensation of
Rs.3.5 Lakhs each to the legal heir of the deceased in
addition to the compensation awarded by the High Court.
The compensation deposited in this Court shall be
remitted to the trial court who may pay the same to the
35
legal heirs of the deceased. The affidavit has been
filed before us that the deceased had four sons, his
wife is dead, the entire amount be disbursed equally to
two sons who are alive and heirs of two deceased sons.
44. In result, the appeals are partly allowed. The
sentence awarded to the appellants under Section 324
IPC of one year is reduced to six months with
enhancement of compensation to Rs.3.5 lacs each in
addition to compensation awarded by the High Court to
be paid to the legal heirs of the deceased. The
compensation to the legal heirs be paid as directed
above.
………………….J.
( ASHOK BHUSHAN )
………………….J.
( AJAY RASTOGI )
New Delhi,
February 11, 2021.
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