JOY Vs. STATE OF KERALA

JUDGEMENT

(1.) A judgment of conviction and sentence under Sections 324 and 326 I.P.C. made by the Judicial First Class Magistrate Court, Thiruvalla, and confirmed in appeal by the Additional Sessions Judge, Pathanamthitta, is under challenge in this revision. On the allegation that the revision petitioner herein assaulted the defacto complainant Babu at about 8.30 p.m. on 23.10.1999, a crime was registered against the revision petitioner in the Perumpetty Police Station as Crime No. 100/1999. After investigation the police submitted final report in the Court of the Judicial First Class Magistrate, Thiruvalla under Sections 324 and 326 of I.P.C. Pending investigation in the crime, the said Babu, who is the second respondent herein, filed a suit against the revision petitioner before the Sub Court, Thiruvalla, for damages, in enforcement of his rights under the Law of Torts. By the time the criminal case came up for trial, the learned Sub Judge decreed the said suit in favour of the plaintiff, granting a compensation of Rs. 2.03 lakhs. The said decree is under challenge before this Court in R.F.A. No. 564 of 2009. The criminal case against the revision petitioner herein ended in conviction on trial. On conviction he was sentenced to undergo rigorous imprisonment for one year under S. 324 I.P.C. and to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 2,000/-under S. 326 I.P.C. The revision petitioner failed in his appeal before the Sessions Court, Pathanamthitta, and now he has come before this Court in revision, challenging the legality and propriety of the conviction and sentence. Being a connected matter this Revision Petition was brought before this Bench for hearing and disposal. Pending the two proceedings the revision petitioner and the second respondent herein settled the whole dispute. On the submission that the disputes could be resolved by mediation, the parties were referred to mediation in R.F.A. No. 564/2009. In the mediation process the parties amicably settled the whole dispute including the criminal case, and accordingly the revision petitioner herein agreed to pay a compensation of Rs. 1,70,000/- in instalments. The mediation agreement signed by both the parties is before this Court in R.F.A No. 564 of 2009. In view of amicable settlement in mediation the parties herein filed composition, with request for permission to compound the offences. Relying on the decisions of the Hon'ble Supreme Court in Y. Suresh Babu v. State of A.P., 2005 1 SCC 347, Gian Singh v. State of Punjab & Anr., 2012 CrLJ 4934 and Ashok Sadarangani v. Union of India, 2012 1 KerLT Suppl. 65 (SC)), the learned counsel for the revision petitioner submitted that permission can be granted to compound the offence under S. 326 I.P.C., in view of the amicable settlement of the whole dispute in mediation.

(2.) On a perusal of the judgments of the Hon'ble Supreme Court cited before us, we find that composition of non-compoundable offences cannot be resorted to in every case or dispute settled between the parties. Though the Hon'ble Supreme Court granted permission to compound the offence under S. 326 I.P.C. in Suresh Babu's case, the Hon'ble Supreme Court has directed such a course not to be treated as a precedent. In Ashok Sadarangani the Hon'ble Supreme Court held that continuance of a criminal proceeding after a compromise had been arrived at between the complainant and the accused would amount to abuse of process of court and an exercise in futility since the trial could be prolonged and ultimately may conclude in a decision which may not be of any consequence to any of the parties. But in the said case permission for composition was declined by the Hon'ble Supreme Court on the ground, that on examination of the materials in the said case, the Hon'ble Supreme Court found emphasis more on the criminal aspect than on the civil aspect. In Gian Singh's case the Hon'ble Supreme Court has held that the inherent power of the court under S. 482 of the Code of Criminal Procedure on the ground of settlement outside court in the case of non-compoundable offences, will have to be exercised in accordance with the guidelines engrafted in such power, i.e., (1) to secure the ends of justice or (2) to prevent abuse of the process of any court. On going through the various decisions on the point we found it difficult to allow composition in this case as regards' the offence under S. 326 I.P.C. However, we felt it necessary to look into the legal aspect, as to whether a conviction in this case under S. 326 I.P.C. is legally sustainable.

(3.) On facts, there is not much dispute in this case in view of the concurrent findings of the trial court and the appellate court, and also in the light of the amicable settlement in mediation. However, as part of appreciation of evidence in revision, this Court will have to analyse the evidence for coming to a decision on the said legal aspect. The incident of assault and infliction of injuries alleged by the prosecution stands well proved by the consistent and definite evidence given by the defacto complainant examined as PW3, the independent evidence given by PW7, and also the medical evidence including Ext. P5 wound certificate. It stands well proved by the evidence of PW3 and PW7, and also the medical evidence of PW8 that the 2nd respondent herein had sustained fracture of his right maxilla, fracture of left zygoma and fracture of nasal bone. The evidence given by these material witnesses stands not discredited, and in the present situation nothing was argued on facts by the learned counsel for the revision petitioner. It was submitted that the injured has lost his eye sight in one eye, but such a case stands not proved by any medical evidence. However, it stands proved that this is definitely a case of infliction of grievous hurt as defined under the law. But the important legal question is whether the grievous injuries involved in this case will attract the penal provision under S. 326 I.P.C.