PRAVAT CHANDRA MOHANTY versus THE STATE OF ODISHA & ANR. on 11 February 2021

PRAVAT CHANDRA MOHANTY

v.

THE STATE OF ODISHA & ANR.

(Criminal Appeal No. 125 of 2021)

FEBRUARY 11, 2021

[ASHOK BHUSHAN AND AJAY RASTOGI, JJ.]

Penal Code, 1860: s. 324 – Voluntarily causing hurt bydangerous weapons or means – Two police officers mercilessly beatvictim in the premises of the police station, who died the same night– Conviction of the accused u/s. 304 (Part II), s. 471/466, s. 342, s.323 and sentenced accordingly – High Court set aside theconviction u/s. 304 (Part II) r/w s. 34 and s. 342/34, and upheldtheir conviction u/s. 324/34, s. 323/34 and s. 471/34 – Appeal beforethis Court – Submissions of the accused that conviction u/s. 324 becompounded by this Court u/s. 320(2) Cr.P.C.; and that the accusedare willing to compensate the family of the deceased – Held: Evidenceof informant, who was also the eye-witness cannot be discardedbecause he was agnate of the deceased – Wooden lathi and battenare the weapons of the police force and the injuries having causedto the victim by these weapons, were likely to cause death – Trialcourt recorded the findings that with mala fide intentions to suppressthe injuries, description of injuries were minimized in inquest reportby accused – Thus, conviction by the High Court u/s. 324 issustainable, and upheld – However, as prayed by the accused,offence u/s. 324 cannot be compounded by the Court in exercise ofs. 320(2) read with sub-section (5) – Offence was committed by thein-charge of the Police Station as well as the Senior Inspector, postedat the same Police Station – Police of State is protector of law andorder – Beating of a person in the Police Station is the concern forall and causes a sense of fear in the entire society – In view of thefact that the accused are more than 75 years of age now, the sentenceawarded for conviction u/s. 324 is reduced to six months instead ofone year with compensation of Rs.3.5 Lakhs each to the legal heirof the deceased in addition to the compensation awarded by theHigh Court – Code of Criminal Procedure, 1973 - s. 320(2) and (5)– Compensation – Witnesses.

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ACode of Criminal Procedure, 1973: s. 320(2) and (5) –Compounding of offence u/s. 324IPC – Leave of the Court –Permission of – Held: Offence u/s. 324 can be compounded onlywith permission of the Court – Grant of leave as contemplated bysub-section (5) of s. 320 is not automatic nor it has to be mechanicalon receipt of request by the accused which may be agreed by theBvictim or his legal heirs – Statutory requirement makes it a clearduty of the Court to look into the nature of the offence and theevidence and to satisfy itself whether permission should be or shouldnot be granted – Furthermore, administration of criminal justicerequires prosecution of all offenders by the State – Offences whichCaffect the public in general and create fear in the public in generalare serious offences, nature of offence may be relevant considerationfor the Court to grant or refuse the leave.

Partly allowing the appeals, the Court

HELD: 1.1 The judgment of the trial court as well as theDHigh Court have been perused and have adverted to themarshalling of oral evidence by both the Courts below as well asanalysis of the documentary evidence on record where evidenceof PW.1, who was the informant and eye-witness was rightly beenbelieved by the trial court and the High court to the fact that both Edeceased and informant arrived at Police Station after 7.30 p.m.and they were mercilessly beaten by the accused. In spite ofVarandah of the Police Station washed in the morning by thesweeper, the scientific officer, who visited the police station foundthe blood stains in the Varandah. The evidence of PW.1 could nothave been discarded merely because he was an agnate of theFdeceased. In the long cross-examination, PW.1 could not beshaken and his evidence of account given of beating of thedeceased by the Police Officers, is to be believed and relied on.[Paras 19 and 20][420-G-H; 421-A-C]

1.2 Emphasis of the counsel for the appellants is that onlyGlathi and wooden baton were alleged to have been used as weaponsof offence, use of which weapons cannot be said to be likely tocause death. MO.IV was a bamboo lathi and Mo.VII was a woodenbatten. Section 324 IPC uses the examination of “weapon of H

offence”. Wooden lathi and baton are the weapons which are uselypossessed by the police and the submission cannot be acceptedthat the injuries cannot be caused by wooden lathi and baton whichmay cause death. It depends on the manner of use of the woodenlathi and baton. Weapons were seized and exhibited as materialobjects. The failure of prosecution to show the weapon to PW.1in no manner can be said to be fatal to the prosecution case.Wooden lathi and batten are the weapons of the police force andthe injuries having caused to the deceased by these weapons ashas been found by the trial court and High Court, non-showing toPW.1 cannot impeach the credibility of evidence of PW.1. [Paras22 and 23][421-F-H; 422-A-C]

1.3 The trial court has also convicted on the inquest reportprepared by accused PK. The trial court after considering theevidence recorded the findings that with mala fide intentions tosuppress the injuries, description of injuries have been minimizedin the exhibit by accused PK. The submissions that convictionby the High Court under Section 324 IPC is unsustainable cannotbe accepted. Thus, the conviction of accused under Section 324IPC is upheld. [Para 25][423-A-C]

2.1 In the instant case, accused has already been convictedfor 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, offenceunder Section 324 was compoundable. The submissions that onthe date when offence was committed, i.e., 04/05.05.1985, theoffence under Section 324 IPC was compoundable is accepted.[Para 28][423-F-H]

2.2 The offence under Section 324 in the facts of the instantcase can be compounded only with permission of the Court. Sub-Section (5) of Section 320 provides that “no composition for theoffence shall be allowed without the leave of the Court.” Thus,the composition of the offence in the facts of the instant case isnot permissible only on the agreement on the request of theappellant which may be also accepted by the legal heirs of the AB

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Adeceased but composition is permissible only by the leave of theCourt. [Para 29][424-B-C]

2.3 The grant of leave as contemplated by sub-section (5)of Section 320 is not automatic nor it has to be mechanical onreceipt of request by the appellant which may be agreed by theBvictim. The statutory requirement, makes it a clear duty of theCourt to look into the nature of the offence and the evidence andto satisfy itself whether permission should be or should not begranted. The administration of criminal justice requiresprosecution of all offenders by the State. The prosecution by theState is the policy of law because all the offences are against theCsociety. The offenders have to bring to the Courts and punish fortheir offences to maintain peace and order in the society. It is theduty of the prosecution to ensure that no offender goes scot-freewithout being punished for an offence. It is also the settledprinciple of law that innocent should not be punished. [Paras 30Dand 31][424-C-F]

2.4 The nature of offence, and its affect on society arerelevant considerations while granting leave by the Court ofcompounding the offence. The offences which affect the public ingeneral and create fear in the public in general are seriousEoffences, nature of which offence may be relevant considerationfor Court to grant or refuse the leave. Looking into the conclusionrecorded by the trial court and the High Court after marshallingthe evidence on record, it is established that both the accusedhave mercilessly beaten the deceased in the premises of thePolice Station. Eleven injuries were caused on the body of theFdeceased by the accused. As per the evidence of PW-1, whichhas been believed by the Courts below, the victim was beaten somercilessly that he passed stool, Urine and started bleeding.[Para 32][424-F-H; 425-A]

Provincial Government, Central Provinces and BerarGvs. Bipin Singh Choudhary AIR (1945) Nagpur, Oudh,Peshawar & Sind 104 – approved 2.5 In the instant case, the offence was committed by thein-charge of the Police Station, Purighat as well as the Senior H

Inspector, posted at the same Police Station. The Police of Stateis protector of law and order. The people look forward to thePolice to protect their life and property. People go to the PoliceStation with the hope that their person and property will beprotected by the police and injustice and offence committed onthem shall be redressed and the guilty be punished. When theprotector of people and society himself instead of protecting thepeople adopts brutality and inhumanly beat the person who comesto the police station, it is a matter of great public concern. Thebeating of a person in the Police Station is the concern for all andcauses a sense of fear in the entire society. [Para 36][426-B-D]

2.6 Present is a case where this Court is not to grant leavefor compounding the offences under Section 324 IPC as prayedby the counsel for the appellants. The present is a case wherethe accused who were police officers, one of them being in-chargeof Station and other Senior Inspector have themselves brutallybeaten the deceased, who died the same night. Their offencescannot be compounded by the Court in exercise of Section 320(2)read with sub-section (5). The prayer of the appellants tocompound the offence is rejected. [Para 38][427-A-C]

Yashwant and others vs. State of Maharashtra (2019)18 SCC 571 – relied on.

3.1 This Court noticed the submission of the counsel forthe appellants that they are ready to compensate the family ofthe deceased. The Court noticing the said statement had issuednotice in the matter. The appellants have also deposited theamount of Rs.3.5 Lakhs each as offered by their counsel recordedin the order dated 17.12.2020. [Para 39][427-C-D]

3.2 The custodial violence on the deceased which led tothe death is abhorrent and not acceptable in the civilized society.The offence committed by the accused is crime not against thedeceased alone but was against humanity and clear violations ofrights guaranteed under Article 21 of the Constitution. Althoughthe High Court has awarded the compensation of Rs.3 Lakhs infavour of the legal representatives of the deceased. Thecompensation awarded was not adequate. [Para 40][427-D-E]

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A3.3 Looking to the facts that both the appellants are morethan 75 years of age now, the ends of justice be served in reducingthe sentence awarded for conviction under Section 324 IPC tosix months instead of one year. Additionally the legal heirs of thedeceased can be compensated by the compensation which hasbeen offered and deposited by the appellant in this Court. Thus,Bsentence of one year is reduced to six months by awardingcompensation of Rs.3.5 Lakhs each to the legal heir of thedeceased in addition to the compensation awarded by the HighCourt. The compensation deposited in this Court shall be remittedto the trial court who may pay the same to the legal heirs of theCdeceased. [Para 43][428-G-H; 429-A-B]

Gulab Das and others vs. State of Madhya Pradesh(2011) 10 SCC 765: [ 2011] 13 SCR 177; Ishwar Singhvs. State of Madhya Pradesh (2008) 15 SCC 667 :[2008] 14 SCR 574 – referred to.D

Case Law Reference

AIR (1945) Nagpur, Oudh,

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.125 of 2021.

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From the Judgment and Order dated 09.11.2020 of the High Courtof Orissa at Cuttack in Criminal appeal No. 207 of 1988.

With

Criminal Appeal No. 126 of 2021

GBasant R., Yasobant Das, Sr. Advs., Kedar Nath Tripathy Adv.for the Appellant.

Ravi Prakash Mehrotra, Ankit Agarwal, Ms. Priyanka Vora,Siddhant Buxy, Advs. for the Respondents.

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The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. Leave granted.

2. These two appeals by the accused have been filed against thecommon judgment of the Orissa High Court dated 09.11.2020 dismissingthe Criminal Appeal Nos. 207 and 210 of 1988 filed by the appellants.Both the appellants being the accused in Lal Bagh P.S.Case No.273 of1985 were tried in Sessions Trial No.246 of 1985 for the offencespunishable under Sections 304, 342, 323, 294, 201 167, 477-A, 471 readwith Section 34 of the IPC. Learned Sessions Judge convicted theaccused Pratap Kumar Choudhury under Section 304 (Part II) IPC toundergo R.I. for eight years and accused Pravat Chandra Mohanty underSection 304 (Part II) to undergo R.I. for five years. Both the accusedwere further sentenced under Section 471 IPC read with Section 466IPC to undergo R.I. for three years and R.I. for three months underSection 342 IPC and R.I. for one month under Section 323 IPC byjudgment dated 29.08.1988.

3. Aggrieved by the judgment of the trial court the appellants,Pravat Chandra Mohanty (hereinafter referred to as “Mohanty”) filedCriminal Appeal No.207 of 1988 and Pratap Kumar Choudhury(hereinafter referred to as “Choudhury”) filed Criminal Appeal No.210of 1988 before the Orissa High Court. The High Court decided both theappeals by its judgment and order dated 09.11.2020 partly allowing theappeals. The conviction of both the appellants under Section 304 (PartII) IPC read with Section 34 IPC and Section 342/34 IPC was set asideand their conviction under Sections 323/34 IPC and 471/34 IPC wasupheld. The High Court convicted both the appellants under Section324/34 IPC. Simple imprisonment for one month was imposed underSection 323/34 IPC. Simple imprisonment for three months for the offenceunder Section 471/34 IPC and simple imprisonment for one year for theoffence under Section 324/34 IPC were imposed by the High Court. Allthe sentences were to run concurrently. Aggrieved by the above judgmentthese 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 theconviction under Section 324 IPC only. Learned counsel for the appellantsfurther volunteered that the appellants are willing to compensate the BC

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[2021] 4 S.C.R.

Afamily of the deceased. Following order was passed on 17.12.2020 bythis Court:

“Learned senior counsel for the petitioners confines his submissionsto the conviction under Section 324 of the IPC on the ground thatwhat was used was a baton. He volunteers that the petitionersBare willing to compensate the family of the deceased and thatthey are now in their middle 70s. On a Court query learned counseloffers and agrees to deposit Rs.3.5 lakhs each for the twopetitioners each totaling to Rs.7 lakhs as compensation in thisCourt within three weeks so that the total compensation admissibleto the family would be 10 lakhs taking into consideration Rs. 3Clakhs awarded to the legal representatives of the deceased whichthe State Government would have paid.

Issue notice on the SLP as well as on the interim bail returnable inthe first miscellaneous week post the winter recess.

DWe consider appropriate to implead the legal representatives ofthe deceased as respondents.

Amended memo of parties be filed.

Notice be also issued to the said respondents.

Issues

Dasti in addition through the standing counsel for the State and toEthe legal heirs of the deceased in person.”5. Legal heirs/representatives of the deceased were impleaded inthese appeals and they entered appearance before this Court. On08.01.2021 following order was passed:F“Applications for exemption from filing c/c of the impugnedjudgment and official translation are allowed.

Learned counsel for the legal heirs of the deceased have enteredappearance through counsel and are agreeable to the proposalmade by learned counsel for the petitioner on 17.12.2020 whichGwas recorded by us.

Learned counsel for the State submits that he has just enteredappearance and may be given a short accommodation to obtaininstructions and make necessary submissions.

List on 13.01.2021.H

Both the learned senior counsel for the petitioner and learnedcounsel for the State will submit a one page synopsis in advanceon 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 YasobantDas, learned senior counsel for the appellants. Shri Ravi PrakashMehrotra has appeared for the State of Odisha and Ms. Priyanka Vorahas appeared for the legal representatives of the deceased.

7. Shri Basant, learned senior counsel, submits that in pursuanceof this Court’s order dated 17.12.2020, the appellants have alreadydeposited the amount of Rs.3.5 lakhs each in the Registry of the Court.He submits that learned counsel appearing for the legal representativesare also agreeable with the proposal made by the learned counsel forthe appellants, hence, conviction under Section 324 IPC be compoundedby this Court under Section 320(2) Cr.P.C.

8. Learned counsel submits that on the date when the offencestook place, i.e. 04.5.1985, offences under Section 324 IPC werecompoundable which subsequently have been made non-compoundable.He submits that both the appellants are now more than 75 years of ageand acting under the order of this Court dated 17.12.2020, the appellantshaving deposited amount for compensation to be paid to the legal heirs,the offences be compounded.

9. In addition to the above submission, learned counsel for theappellants has also contended that conviction under Section 324 IPC bythe High Court is unsustainable. He submits that the conviction underSection 324 IPC deserves to be converted to the conviction under Section323 IPC. He submits that the ingredients of Section 324 IPC are notmade out from the evidence brought on record. He submits that injurieswhich were found on the body of the deceased were all simple injuries.He submits that weapon of offence being only a wooden batten/lathiwhich weapon was not likely to cause death, hence, conviction underSection 324 was unjustified. He further contends that either the offencebe converted under Section 323 IPC or imprisonment be substituted byfine.

10. Shri Basant further submits that alleged weapons of offence,i.e., MO.IV and MO.VII were not shown to PW.1 during trial foridentification. Learned counsel further submits that there were material A

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Acontradictions in the statement of PW.1-Kusia Naik, so his evidencedeserved to be rejected. He submits that the High Court itself has foundthe statement of PW.1 only partially reliable. Shri Basant, however, fairlysubmitted that conviction under Section 471 IPC is not sought to becompounded which is non-compoundable. Learned counsel has notchallenged the conviction under Section 471/34 IPC and is confined hisBsubmission 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 regardto the amount of compensation directed by the High Court to be givenby the State Government, the State Government has completed necessaryCprocedural formalities and would deposit or give the compensation amountas directed by the High Court to the legal representatives in the modeand manner as this Court would please direct.

12. Learned counsel appearing for the legal representatives ofthe deceased, Kasinath Naik, expressed their agreement to proposal ofDthe learned counsel for the appellants as noticed in the order dated17.12.2020.

13. We have considered the submissions of the learned counselfor the parties and perused the record.

E14. The High Court in its judgment has noticed the prosecutioncase in paragraph 2 of the judgment. Paragraph 2 of the High Courtjudgment 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 11Fa.m. before the D.S.P., City, Cuttack(S) is that the informant wasstaying in a rented house of one Bishnu Mohanty of Rajabagicha,Cuttack. On 02.05.1985 he had been to Nayagarh in connectionwith the marriage of his nephew and returned home to Cuttack inthe morning hours of 04.05.1985. After arrival, he was informedby his wife Kanchan Dei (P.W.18) that there was quarrel betweenGtheir Basti residents Sura and Bainshi on Friday. He went to themarket and returned at about 4 p.m. when his wife told him thatPramod Naik, Benu Naik and Guna Naik were abusing her infilthy language and telling her to drive out her family members asthey had no houses and no holding numbers. The informant wasalso told by his wife that 4 Thana Babu of Purighat police stationH

had called him to go to the police station. After sometime, KasinathNaik (hereafter ‘the deceased’) also told the informant that theconstable had come and told him in that respect. Accordingly,both the informant and the deceased decided to go to Purighatpolice station. In the evening hours, when both of them reachedat Purighat police station, one police officer having mustache toldthe deceased that on the next time, he would cause fracture ofthe hands and legs of the son of the deceased by assaulting himas the later had filed a case against him before the Legal Aid. Thedeceased remained silent. The said police officer also used slanglanguage against the deceased and told that he belonged to AlishaBazar, Cuttack and he would not allow the family of the deceasedto stay at Cuttack and no lawyer could do anything to him. Thedeceased replied to the said police officer that on being assaulted,his wife and son had filed the case before the Legal Aid and hedid not know anything in that respect.

It is further stated in the first information report that the said policeofficer having mustache gave a kick to the deceased and againused slang language and also gave two blows on the hands of theinformant and also kicked him. Then said police officer havingmustache further assaulted the 5 deceased who cried aloud andin that process, he sustained bleeding injuries on his body. Theinformant was asked to wait in one room of the police station andthe deceased was taken to the other side verandah of the policestation and was assaulted. Though the informant was not able tosee the assault but he could hear the cries of the deceased. Thenthe police officer called the informant outside and after he cameout, he saw the appellant Pravat Mohanty assaulting the deceasedby means of a stick and the deceased was crying aloud. Theinformant gave water to the deceased on being told by the policeofficer but the deceased was having no strength to walk and hewas just crawling. The deceased came near the informant and hewas having bleeding injuries on his hands and necks and the legswere swollen. The deceased was telling that he would not surviveand would die. When the deceased sought permission to attendthe call of nature, the police officer having mustache and appellantPravat Mohanty further assaulted him. When the deceased againrequested to attend the call of nature, with permission of the policeofficer, the informant took him for such purpose and after they AB

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Areturned, the appellant Pravat Mohanty asked the deceased as towhy he was limping. The deceased was given bread to eat butwhen he refused, appellant Pravat Mohanty compelled him totake bread and further assaulted him 6 on his knee. Gettingindication from the constable, the informant concealed the breadand told the police officer that the deceased had already takenBthe bread. The said police officer brought liquor in a bottle andpoured it in the mouth of the deceased as well as the informantand then sprinkled liquor over them and went outside of the policestation. Sura Naik (P.W.13) who belonged to the Basti of theinformant came to the police station and talked with one MishraCBabu secretly but on seeing the deceased and the informant, hewent away. Then appellant Pravat Mohanty again assaulted thedeceased and asked him to sit in a vehicle to go to the hospital. Atthat time, it was 11 to 12 O’ clock in the night. The appellantPravat Mohanty, a driver and a constable lifted the deceased andplaced him inside the vehicle and he was crying that he would notDsurvive. When the informant expressed his eagerness toaccompany the deceased to the hospital, he was told that therewas no necessity to accompany the deceased even though thedeceased was calling the informant to accompany him. After thedeceased was taken away from the police station, one constableEchained the left leg of the informant to a table of the police stationand in the morning hours, the informant was untied as per theinstruction of the appellant Pravat Mohanty. One sweeper wascalled to the police station and he was asked to clean the bloodand stool of 7 the deceased which was lying at different placesinside the police station. At that time the informant came to knowFthat the deceased had died in the hospital last night. The widow ofthe deceased had also come to the police station crying but shewas not allowed to stay there by the Havildar. It is mentioned inthe first information report that the police officer having mustachewas a fair and tall person.

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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 on05.05.1985 at 11 a.m. against appellant Pravat Mohanty and theother police officer of Purighat police station having mustache.”

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15. The prosecution in the trial has examined 39 witnesses, i.e.,PW.1 to PW.39. PW.1, Kusia Naik, being informant, eye-witness andinjured witness and PW.39 Gaganbehari Mohanty, being the IO. Nowitness was examined for the defence. A large number of Exhibitsrunning Ext.1 to Ext.67/1 were produced by the prosecution. Ext.A toExt.J were also admitted into the evidence by defence. MO.I to MO.VIIwere material objects. After marshalling evidence on record, the learnedtrial judge while holding conviction under Section 304 (Part-II) read withSection 34 IPC recorded its conclusion in paragraph 74 which is to thefollowing effect:

“74. It is thus found that there is nexus between death of thedeceased and the act of the accused persons in subjecting him tolong detention throughout the night and in mercilessly beating him.Therefore, it is clear that such death was caused by the act of theaccused persons. They did it in furtherance of their commonintention. The facts of the case disclose that there might not be anintention to cause such bodily injury as was likely to cause death.But the facts disclose that the accused persons knew that theiract would be likely to cause death. Hence, it is found that theaccused persons also committed an offence punishable u/s 304(Part-II) I.P.C. read with section 34 IPC.”

16. The defence which was taken on behalf of the accused beforethe Courts below was that deceased, Kasinath Naik came to PurighatPolice Station at about 9 p.m. on 04.05.1985 to lodge an FIR regardingoccurrence of assault on the deceased which took place on the KathajoriRiver embankment at about 9 p.m. by some unknown person in whichthe deceased sustained injuries. The case No.272/1985 was registeredby appellant, Mohanty who directed the appellant Choudhury to investigatethe case and maintain case diary. In order to substantiate its plea theevidence regarding FIR in Case No.272/1985 the case diary maintainedin the said case by the appellant Choudhury was marked as Ext.63.

17. The High Court after marshalling the evidence on record hasheld that the FIR lodged to have been signed by the deceased, KasinathNaik on which Lalbag P.S. Case No.272 of 1985 was registered did notcontain the signature of Kasinath Naik. In Case No.272/1985 final reportwas submitted indicating the case to be false. No one challenged thefinal report submitted in Case No.272/1985. It is relevant to notice therelevant discussion by the High Court which is to the following effect:

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A “In view of the foregoing discussions, the defence plea that anyoccurrence of assault on the deceased took place on the Kathajoririver embankment on 04.05.1985 at about 9.00 p.m. in which thedeceased sustained injuries and came to lodge the first informationreport to Purighat police station and accordingly, the F.I.R. wasregistered and that as per the direction of appellant Pravat Mohanty,Bappellant P.K. Choudhury took up investigation of the case andmaintained case diary vide Ext.63 mentioning all correct state ofaffairs is not acceptable. I am of the considered view that thedeceased 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 beenCpresented by him which carries the forged signature of thedeceased vide Ext.A.”

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18. Both the appellants have been convicted under Section 371/34 IPC by the courts below, finding offence of forging and fabrication ofrecord to be proved. The reason for fabricating the false story thatDdeceased, Kasinath Naik came to Police Station to lodge an FIR aboutthe assault on him at 9 p.m. was only with a view to save the accused,with intent to explain injuries caused on the body of deceased which hereceived during his stay in the Police Station. As noted above, theconviction of the appellants under Section 371/34 IPC has not beenchallenged before us. The defence taken by the appellants has miserablyEfailed. The High Court after re-appraising the evidence on recordincluding the oral and documentary evidence has come to the conclusionthat ante-mortem injuries noticed on the person of the deceased as perpostmortem report were caused in Purighat Police Station during hisstay from 7.30 p.m. till post midnight on 4/5.05.1985 and the evidence of Fthe scientific officer and chemical report also corroborates the assaultat the police station and the appellants were author of those injuries. Thetrial court has also held in its judgment after marshalling the entireevidence that injuries were caused to the deceased, Kasinath Naik inthe Police Station, Purighat by both the accused. The High Court onreappraisal of the evidence came to the same finding.G

19. We have carefully perused the judgment of the trial court aswell as the High Court and have adverted to the marshalling of oralevidence by both the Courts below as well as analysis of the documentaryevidence on record where evidence of PW.1, who was the informantand eye-witness has rightly been believed by the trial court and the HighH

court to the fact that both deceased and informant arrived at PoliceStation after 7.30 p.m. and they were mercilessly beaten by Choudhuryand Mohanty. In spite of Varandah of the Police Station washed in themorning by the sweeper, the scientific officer, who visited the policestation found the blood stains in the Varandah.

20. The evidence of PW.1 could not have been discarded merelybecause 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 beatingof the deceased by the Police Officers, i.e., Choudhury and Mohanty isto be believed and relied on.

21. Now, we may notice the submissions of the learned counselfor the appellants challenging their conviction under Section 324 IPC.Section 324 IPC reads:

“Section 324. Voluntarily causing hurt by dangerous weaponsor means.—Whoever, except in the case provided for by section334, volun-tarily causes hurt by means of any instrument forshooting, stab-bing or cutting, or any instrument which, used asweapon of offence, is likely to cause death, or by means of fire orany heated substance, or by means of any poison or any corrosivesubstance, or by means of any explosive substance or by meansof any substance which it is deleterious to the human body toin-hale, to swallow, or to receive into the blood, or by means ofany animal, shall be punished with imprisonment of eitherde-scription for a term which may extend to three years, or withfine, or with both.”

22. Emphasis of learned counsel for the appellants is that onlylathi and wooden batten were alleged to have been used as weapons ofoffence, use of which weapons cannot be said to be likely to causedeath. MO.IV was a bamboo lathi and Mo.VII was a wooden batten.Section 324 IPC uses the examination of “weapon of offence”. Thesubmission cannot be accepted that use of wooden lathi and batten areweapons which are not likely to cause death. Wooden lathi and battenare the weapons which are usely possessed by the police and thesubmission cannot be accepted that the injuries cannot be caused bywooden lathi and batten which may cause death. It depends on the mannerof use of the wooden lathi and batten.

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A23. Learned counsel further submits that MO.IV and MO.VIIwere not shown to PW.1 during trial for identification. MO.IV andMO.VII were seized and exhibited as material objects. The failure ofprosecution to show the MO.IV and MO.VII to PW.1 in no manner canbe said to be fatal to the prosecution case. Wooden lathi and batten arethe weapons of the police force and the injuries having caused to theBdeceased by these weapons as has been found by the trial court andHigh Court, non-showing to PW.1 cannot impeach the credibility ofevidence of PW.1.

24. Now, we look into the injuries which were found on the bodyof deceased. Post Mortem report is Exhibit-43. PW.-37 Dr. DebendraCKumar Pattnaik, had conducted the post mortem, who also appeared inthe Court. The external injuries found on the body of the deceased areas follows:- “1. Pattern bruise and abrasion in an area of 5” x 3" on the lateralside of right thigh at its lower 1/3[rd].D2. Pressure abrasion 2" x ½” in front of right leg 4" below theright knee.

3. Pressure abrasion 1.1/2" x 1/2" in the medial aspect of right leg2.1/2" above the medial malieolus.

E4. Multi-pressure abrasion in an area of 10" x 4" in front of left leg3.1/2" below the knee.

5. Lacerated wound 1/5" x 1/4% x skin deep 4.1/2" below the leftknee in front without involving the bone.

6. Grazed abrasion ½” x ½” on the left buttock 2" away from theFanus.

7. Pressure abrasion in an area of 2" x 1" on left elbow joint on itsposterior as pect.

8. Pattern bruise in an area of 7" x 5" on the lateral aspect of theGleft 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 thescapuliar region.

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11. Pattern bruise 12 cm x 1" on left side of back over the leftscapula region.”

25. The trial court has also convicted on the inquest report preparedby accused P.K. Chaudhary, i.e., Exhibit-16. The trial court has afterconsidering the evidence recorded the findings that with mala fideintentions to suppress the injuries, description of injuries have beenminimized in Exhibit-16 by accused P.K. Chaudhary. We are notpersuaded to accept submissions of learned counsel for the appellantsthat conviction by the High Court under Section 324 IPC is unsustainable.We, thus, affirm the conviction of accused under Section 324 IPC.

26. Now, we come to the submission, which has been much pressedby learned counsel for the appellant, i.e., composition of offence underSection 324 IPC. Section 320 of the Code of Criminal Procedure, 1973,provides for compounding of offence. Sub-Section (1) of Section 320contains a table which may be compounded by persons mentioned inthird column of the table whereas sub-section (2) of Section 320 provides:- “320(2). The offences punishable under the sections of the IndianPenal Code (45 of 1860) specified in the first two columns of thetable next following may, with the permission of Court beforewhich any prosecution for such offence is pending, be compoundedby 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 whenhe has been convicted and an appeal is pending, no compositionfor the offence shall be allowed without the leave of the Court towhich he is committed, or, as the case may be, before which theappeal is to be heard.”

28. The present is a case where accused has already beenconvicted 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 underSection 324 was compoundable. Learned counsel for the appellants isright in his submissions that on the date when offence was committed,i.e., 04/05.05.1985, the offence under Section 324 IPC wascompoundable. We, thus, need to examine as to whether in the presentcase, the request of the appellants to which learned counsel appearing A

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Afor the legal representative of the deceased have also agreed need to beaccepted and this Court may permit compounding of offence underSection 324 IPC.

29. The offence under Section 324 in the facts of the presentcase can be compounded only with permission of the Court. Sub-SectionB(5) of Section 320 provides that “no composition for the offence shall beallowed without the leave of the Court.” Thus, the composition of theoffence in the facts of the present case is not permissible only on theagreement on the request of the appellant which may be also acceptedby the legal heirs of the deceased but composition is permissible only bythe leave of the Court.C

30. The grant of leave as contemplated by sub-section (5) ofSection 320 is not automatic nor it has to be mechanical on receipt ofrequest by the appellant which may be agreed by the victim. The statutoryrequirement, makes it a clear duty of the Court to look into the nature ofthe offence and the evidence and to satisfy itself whether permissionDshould be or should not be granted. The administration of criminal justicerequires prosecution of all offenders by the State.

31. The prosecution by the State is the policy of law because allthe offences are against the society. The offenders have to bring to theCourts and punish for their offences to maintain peace and order in theEsociety. It is the duty of the prosecution to ensure that no offender goesscot-free without being punished for an offence. It is also the settledprinciple of law that innocent should not be punished.

32. The question arises as to while granting leave of the Court forcomposition of offence, what is the guiding factor for the Court to grantFor refuse the leave for composition of offence. The nature of offence,and its affect on society are relevant considerations while granting leaveby the Court for compounding the offence. The offences which affectthe public in general and create fear in the public in general are seriousoffences, nature of which offence may be relevant consideration forGCourt to grant or refuse the leave. When we look into the conclusionrecorded by the trial court and the High Court after marshalling theevidence on record, it is established that both the accused havemercilessly 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 CourtsH

below, the victim was beaten so mercilessly that he passed stool, Urineand started bleeding.

33. We may refer to a Division Bench Judgment of Nagpur HighCourt reported in Provincial Government, Central Provinces andBerar vs. Bipin Singh Choudhary, AIR (1945) Nagpur, Oudh,Peshawar & Sind 104, where the Division Bench consisted of JusticeVivian Bose(as he then was), had occasion to consider the provisions ofSection 345 Criminal Procedure Code, 1898, which are pari materiaprovision to Section 320 Cr.P.C. In the above case, the Government hadfiled an appeal where sanction was accorded under Section 345(2) Cr.P.C.to the compounding of offence of cheating. The respondent accused inthat case was found guilty of cheating. He had cheated a litigant. Theaccused was clerk in the High Court. He induced the complainant topay him a sum of Rs. 2,000/- stating that accused would hand it over toone of the Judges in charge of the complainant’s case as a bribe. LearnedMagistrate has accorded sanction stating that complainant and accusedwere friends and it would be pity to disturb their friendly relations withwhich public at large are not concerned and in which they are notinterested.

34. The Division Bench of the High Court expressed itsdisagreement with the view taken by the Magistrate. The Court heldthat the matter was of a very great public concern. The Division Benchheld following in the above case: -

“...The matter is, however, aggravated when we find that theperson who is said to have done the cheating is a clerk of theCourt. All public servants attached to a Court are trustees andguardians of the honour and integrity of the Court. It is a matterof grave import if any of them attempts to extract an illegalgratification or extort money from those who seek access to theCourts, or endeavours to lead them astray and, by abusing hisposition, tries to enrich himself. Persons in this class of life arelooked upon as persons of influence and of some authority by theordinary ignorant public. If therefore they abuse the position ofconfidence in which they are placed by reason of their office, itbecomes a matter of great public concern. In our opinion, it isperverse to consider otherwise. If ever there was a case in whichcomposition should have been refused, this is such a case...”

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35. The ratio of the judgment is that in event people holding publicoffice abuse their position, it becomes a matter of great public concern.We fully endorse the above view of the Nagpur High Court.

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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,Bposted at the same Police Station. The Police of State is protector oflaw and order. The people look forward to the Police to protect their lifeand property. People go to the Police Station with the hope that theirperson and property will be protected by the police and injustice andoffence committed on them shall be redressed and the guilty be punished.When the protector of people and society himself instead of protectingCthe people adopts brutality and inhumanly beat the person who comes tothe police station, it is a matter of great public concern. The beating of aperson in the Police Station is the concern for all and causes a sense offear in the entire society.

37. We may refer to the judgment of this Court in Yashwant andDothers vs. State of Maharashtra, (2019) 18 SCC 571, where thisCourt laid down that when the police is violator of the law whose primaryresponsibility is to protect the law, the punishment for such violation hasto be proportionately stringent so as to have effective deterrent effectand instill confidence in the society. Following was laid down in paragraphE34: - “34. As the police in this case are the violators of law, who hadthe primary responsibility to protect and uphold law, therebymandating the punishment for such violation to be proportionatelystringent so as to have effective deterrent effect and instillFconfidence in the society. It may not be out of context to remindthat the motto of Maharashtra State Police is “SadrakshnayaKhalanighrahanaya” (Sanskrit: “To protect good and to punishevil”), which needs to be respected. Those, who are called uponto administer the criminal law, must bear, in mind, that they have aduty not merely to the individual accused before them, but also toGthe State and to the community at large. Such incidents involvingpolice usually tend to deplete the confidence in our criminal justicesystem much more than those incidents involving privateindividuals. We must additionally factor this aspect while imposingan appropriate punishment on the accused herein.”

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38. The observations as quoted above are fully attracted in thefacts of the present case. We, thus, are of the considered opinion thatpresent is a case where this Court is not to grant leave for compoundingthe offences under Section 324 IPC as prayed by the counsel for theappellants. The present is a case where the accused who were policeofficers, one of them being in-charge of Station and other Senior Inspectorhave themselves brutally beaten the deceased, who died the same night.Their offences cannot be compounded by the Court in exercise of Section320(2) read with sub-section (5). We, thus, reject the prayer of theappellants 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 appellantsthat they are ready to compensate the family of the deceased. The Courtnoticing the said statement had issued notice in the matter. The appellantshave also deposited the amount of Rs.3.5 Lakhs each as offered bytheir counsel recorded in the order dated 17.12.2020.

40. The custodial violence on the deceased which led to the deathis abhorrent and not acceptable in the civilized society. The offencecommitted by the accused is crime not against the deceased alone butwas against humanity and clear violations of rights guaranteed underArticle 21 of the Constitution. Although the High Court has awarded thecompensation of Rs.3 Lakhs in favour of the legal representatives of thedeceased. We are of the view that compensation awarded was notadequate.

41. We may further notice that this Court has taken the view thateven when prayer for compounding of the offence is refused, the Courtcan consider in appropriate case, the question of sentence. We mayrefer to Gulab Das and others vs. State of Madhya Pradesh, (2011)10 SCC 765. In the above case, the Court refused to compound theoffence but the Court proceeded to interfere with the question ofsentence. 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 intoconsideration for the purpose of determining the quantum ofsentence to be awarded to the appellants. That is precisely theapproach which this Court has adopted in the cases referred toabove. Even when the prayer for composition has been declined A

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Athis Court has in the two cases mentioned above taken the fact ofsettlement between the parties into consideration while dealingwith the question of sentence. Apart from the fact that a settlementhas taken place between the parties, there are few othercircumstances that persuade us to interfere on the question ofsentence awarded to the appellants.”B42. To the same effect is the another judgment of this Court inIshwar 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 underCSection 307 IPC is not a compoundable offence. Section 320 ofthe Code of Criminal procedure, 1973 expressly states that nooffence shall be compounded if it is not compoundable under theCode. At the same time, however, while dealing with such matters,this Court may take into account a relevant and importantconsideration about compromise between the parties for theDpurpose 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 theparties, reduced sentence imposed on the appellant-accused toEalready undergone, though the offences were not compoundable.But it was also stated that in Mahesh Chand v. State of Rajasthansuch offence was ordered to be compounded.

14. In our considered opinion, it would not be appropriate to ordercompounding of an offence not compoundable under the CodeFignoring and keeping aside statutory provisions. In our judgment,however, limited submission of the learned counsel for the appellantdeserves consideration that while imposing substantive sentence,the factum of compromise between the parties is indeed a relevantcircumstance which the Court may keep in mind.”G43. Looking to the facts that both the appellants are more than 75years of age now, we are of the considered opinion that the ends ofjustice be served in reducing the sentence awarded for conviction underSection 324 IPC to six months instead of one year. Additionally the legalheirs of the deceased can be compensated by the compensation whichhas been offered and deposited by the appellant in this Court. Thus,H

sentence of one year is reduced to six months by awarding compensationof Rs.3.5 Lakhs each to the legal heir of the deceased in addition to thecompensation awarded by the High Court. The compensation depositedin this Court shall be remitted to the trial court who may pay the same tothe legal heirs of the deceased. The affidavit has been filed before usthat the deceased had four sons, his wife is dead, the entire amount bedisbursed equally to two sons who are alive and heirs of two deceasedsons.

44. In result, the appeals are partly allowed. The sentence awardedto the appellants under Section 324 IPC of one year is reduced to sixmonths with enhancement of compensation to Rs.3.5 lacs each in additionto compensation awarded by the High Court to be paid to the legal heirsof the deceased. The compensation to the legal heirs be paid as directedabove.

Nidhi Jain

Appeals partly allowed.

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