Pravat Chandra Mohanty vs The State Of Odisha on 11 February, 2021


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Supreme Court of India

Pravat Chandra Mohanty vs The State Of Odisha on 11 February, 2021

Author: Ashok Bhushan

Bench: Ashok Bhushan, R. Subhash Reddy

                                                                            1


                                                                   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.
2

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
3

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
4

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.”
5

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
6

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
7

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
8

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.
9

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
10

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
11

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
12

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
13

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.”
14

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
16

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.

17

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.
18

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
19

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.

20

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.

21

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.

22

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
23

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
24

“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
25

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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