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CASE NO.: Appeal (crl.)  1344-1345 of 2004

PETITIONER: Bankat and Anr.

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 25/11/2004

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

(Arising out of SLP (Crl.) Nos. 3538-39/2004)

ARIJIT PASAYAT, J.

       Leave granted.

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

       For offence relatable to Section 326 read with Section 34 IPC  each of A-1 to A-3 was sentenced by the learned trial Judge to undergo  imprisonment for one year and pay a fine of Rs.500/- with default  stipulation. But looking to the age of A-4, he was sentenced to  imprisonment for one month and pay a fine of Rs.500/- with default  stipulation. No separate sentence was passed for the offence punishable  under Section 325 read with Section 34 IPC.                  By the impugned judgment, the High Court held that A-3 was not  responsible for the injury on the leg of victim Ratnabai (PW-2) and on  the head of the victim Manik (PW-1) and taking note of the long passage  of time the custodial sentence was reduced to the period already  undergone. However, the fine was enhanced to Rs.2,000/- For Pandurang  Mohan Aade (A-4) also, looking to his age fine was enhanced to  Rs.2,000/- but custodial sentence was reduced to period already  undergone. So far as the present appellants are concerned it was held  that there is no scope for interference with the sentence awarded. In  other words, the conviction was maintained for all the four accused  persons but different sentences were imposed.

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

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

       Though in support of the appeals, many points were urged on the

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factual aspects, we find that the Courts below have concurrently found  that the accused persons were responsible for injuries on the victims  Ratnabai and Manik and, therefore, in view of the evidence of the eye- witnesses, more particularly, the injured witnesses there is no scope  for interference with the conclusions arrived at.

It was next submitted by learned counsel for the appellants that  occurrence took place on 1.3.1993 and more than a decade has elapsed  and in the meantime the parties have sorted out their differences,  entered into compromise and, therefore, the High Court should have  accepted the prayer for modification of the order.  

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

It is vehemently contended by the learned counsel for the  appellants that as the dispute was amicably settled and the matter was  compromised, the High Court ought to have granted permission to  compound the offences and ought not to have convicted the appellants  and imposed the sentence. For this purpose, reliance is placed upon the  decisions of this Court in Ram Pujan v. State of U.P (1973 (2) SCC 456)  and Mahesh Chand v. State Rajasthan (1990 Supp SCC 681). As against  this, learned counsel for the respondent submitted that the offence  under Section 326 IPC is not compoundable and the High Court has  rightly rejected the application for compounding the same. He, for this  purpose, relied upon the judgment of this Court in Ram Lal v. State of  J&K (1999 (2) SCC 213)  wherein after referring to Section 320 (9) of  the Code  the Court observed that the decision in Mahesh Chand’s case  (supra) was rendered per incuriam.   In our view, the submission of the learned counsel for the  respondent requires to be accepted. For compounding of the offences  punishable under the IPC, a complete scheme is provided under Section  320 of the Code. Sub-section (1) of Section 320 provides that the  offences mentioned in the Table provided thereunder can be compounded  by the persons mentioned in column 3 of the said Table. Further, sub- section (2) provides that the offences mentioned in the Table could be  compounded by the victim with the permission of the court. As against  this, sub-section (9) specifically provides that "no offence shall be  compounded except as provided by this section". In view of the  aforesaid legislative mandate, only the offences which are covered by  Table 1 or Table 2 as stated above can be compounded and the rest of  the offences punishable under the IPC could not be compounded.   Further, the decision in Ram Pujan’s case (supra) does not  advance the contention raised by the appellants. In the said case, the  Court held that the major offences for which the accused have been  convicted were no doubt non-compoundable, but the fact of compromise  can be taken into account in determining the quantum of sentence. In  Ram Lal’s case (supra) the Court referred to the decision of this Court  in Y. Suresh Babu v. State of A.P.(JT (1987) 2 SC 361) and to the  following observations made by the Supreme Court in Mahesh Chand’s   case (supra)  and held as under : (SCC p. 682, para 3)  "3. We gave our anxious consideration to the case and  also the plea put forward for seeking permission to  compound the offence. After examining the nature of  the case and the circumstances under which the  offence was committed, it may be proper that the  trial court shall permit them to compound the  offence."

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In the case of Y. Suresh Babu’s (supra) the Court has  specifically observed that the said case "shall not be 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 to grant permission to compound  the offence punishable under Section 326.   We reiterate that the course adopted in Ram Pujan’s case (supra)  and Mahesh Chand’s case (supra) was not in accordance with law.  The above position was elaborately indicated by a three-Judge  Bench of this Court in Surendra Nath Mohanty and Anr. vs. State of  Orissa (1999 (5) SCC 238). However, considering the fact that the parties have settled their  dispute outside the court, the fact that 10 years have elapsed from the  date of the incident, and the further fact that the appellants have  already undergone several months’ imprisonment, ends of justice would  be met if the sentence of imprisonment is reduced to the period already  undergone besides imposing a fine of Rs.5000/- on each of the accused  under Section 326 read with Section 34 IPC. In default of payment of  fine, the appellants concerned shall undergo imprisonment for a further  period of six months. We also refrain from imposing any separate  sentence on the other counts of offences. Out of the fine amount, if  realised, a sum of Rs. 4000/- also be paid to each of the injured as  compensation.   The appeals stand disposed of accordingly.