PRAVAT CHANDRA MOHANTYversusTHE STATE OF ODISHA & ANR.

                          [2021] 4 S.C.R. 407                             407


                 PRAVAT CHANDRA MOHANTY                                   A
                                  v.
                 THE STATE OF ODISHA & ANR.
                 (Criminal Appeal No. 125 of 2021)
                        FEBRUARY 11, 2021                                 B
       [ASHOK BHUSHAN AND AJAY RASTOGI, JJ.]
       Penal Code, 1860: s. 324 – Voluntarily causing hurt by
dangerous weapons or means – Two police officers mercilessly beat
victim in the premises of the police station, who died the same night
                                                                          C
– Conviction of the accused u/s. 304 (Part II), s. 471/466, s. 342, s.
323 and sentenced accordingly – High Court set aside the
conviction u/s. 304 (Part II) r/w s. 34 and s. 342/34, and upheld
their conviction u/s. 324/34, s. 323/34 and s. 471/34 – Appeal before
this Court – Submissions of the accused that conviction u/s. 324 be
compounded by this Court u/s. 320(2) Cr.P.C.; and that the accused        D
are willing to compensate the family of the deceased – Held: Evidence
of informant, who was also the eye-witness cannot be discarded
because he was agnate of the deceased – Wooden lathi and batten
are the weapons of the police force and the injuries having caused
to the victim by these weapons, were likely to cause death – Trial
                                                                          E
court recorded the findings that with mala fide intentions to suppress
the injuries, description of injuries were minimized in inquest report
by accused – Thus, conviction by the High Court u/s. 324 is
sustainable, and upheld – However, as prayed by the accused,
offence u/s. 324 cannot be compounded by the Court in exercise of
s. 320(2) read with sub-section (5) – Offence was committed by the        F
in-charge of the Police Station as well as the Senior Inspector, posted
at the same Police Station – Police of State is protector of law and
order – Beating of a person in the Police Station is the concern for
all and causes a sense of fear in the entire society – In view of the
fact that the accused are more than 75 years of age now, the sentence
                                                                          G
awarded for conviction u/s. 324 is reduced to six months instead of
one year with compensation of Rs.3.5 Lakhs each to the legal heir
of the deceased in addition to the compensation awarded by the
High Court – Code of Criminal Procedure, 1973 - s. 320(2) and (5)
– Compensation – Witnesses.
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                                 407
408            SUPREME COURT REPORTS                       [2021] 4 S.C.R.


A            Code 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 only
      with permission of the Court – Grant of leave as contemplated by
      sub-section (5) of s. 320 is not automatic nor it has to be mechanical
      on receipt of request by the accused which may be agreed by the
B
      victim or his legal heirs – 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 – Furthermore, administration of criminal justice
      requires prosecution of all offenders by the State – Offences which
C     affect the public in general and create fear in the public in general
      are serious offences, nature of offence may be relevant consideration
      for 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 the
D     High Court have been perused 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 was rightly been
      believed by the trial court and the High court to the fact that both
E     deceased and informant arrived at Police Station after 7.30 p.m.
      and they were mercilessly beaten by the accused. 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. The evidence of PW.1 could not
      have been discarded merely because he was an agnate of the
F     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, 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 only
G     lathi and wooden baton 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

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 PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA                        409


offence”. Wooden lathi and baton are the weapons which are usely      A
possessed by the police and the submission cannot be accepted
that the injuries cannot be caused by wooden lathi and baton which
may cause death. It depends on the manner of use of the wooden
lathi and baton. Weapons were seized and exhibited as material
objects. The failure of prosecution to show the weapon to PW.1
                                                                      B
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. [Paras
22 and 23][421-F-H; 422-A-C]                                          C
      1.3 The trial court has also convicted on the inquest report
prepared by accused PK. The trial court after considering the
evidence recorded the findings that with mala fide intentions to
suppress the injuries, description of injuries have been minimized
in the exhibit by accused PK. The submissions that conviction         D
by the High Court under Section 324 IPC is unsustainable cannot
be accepted. Thus, the conviction of accused under Section 324
IPC is upheld. [Para 25][423-A-C]
      2.1 In the instant case, accused has already been convicted
for offence under Section 324 IPC. By Cr.P.C. (Amendment) Act,        E
2005, offence under Section 324 IPC has been made non-
compoundable offence. Prior to the aforesaid amendment, offence
under Section 324 was compoundable. The submissions that on
the date when offence was committed, i.e., 04/05.05.1985, the
offence under Section 324 IPC was compoundable is accepted.
[Para 28][423-F-H]                                                    F

      2.2 The offence under Section 324 in the facts of the instant
case can be compounded only with permission of the Court. Sub-
Section (5) of Section 320 provides that “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 instant case is    G
not permissible only on the agreement on the request of the
appellant which may be also accepted by the legal heirs of the



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410            SUPREME COURT REPORTS                      [2021] 4 S.C.R.


A     deceased but composition is permissible only by the leave of the
      Court. [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 on
      receipt of request by the appellant which may be agreed by the
B     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. The prosecution by the
      State is the policy of law because all the offences are against the
C     society. The 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. [Paras 30
D     and 31][424-C-F]
            2.4 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
E     offences, nature of which offence may be relevant consideration
      for Court to grant or refuse the leave. Looking into the conclusion
      recorded by the trial court and the High Court after marshalling
      the evidence on record, it is established 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
F     deceased by the accused. As per the evidence of PW-1, which
      has been believed by the Courts below, the victim was beaten so
      mercilessly that he passed stool, Urine and started bleeding.
      [Para 32][424-F-H; 425-A]
            Provincial Government, Central Provinces and Berar
G           vs. Bipin Singh Choudhary AIR (1945) Nagpur, Oudh,
            Peshawar & Sind 104 – approved
            2.5 In the instant case, the offence was committed by the
      in-charge of the Police Station, Purighat as well as the Senior

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 PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA                         411


Inspector, posted at the same Police Station. The Police of State      A
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 offence committed on
them shall be redressed and the guilty be punished. When the
                                                                       B
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. [Para 36][426-B-D]
      2.6 Present is a case where this Court is not to grant leave     C
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           D
cannot be compounded by the Court in exercise of Section 320(2)
read with sub-section (5). The prayer of the appellants to
compound the offence is rejected. [Para 38][427-A-C]
      Yashwant and others vs. State of Maharashtra (2019)
      18 SCC 571 – relied on.                                          E
      3.1 This Court 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       F
in the order dated 17.12.2020. [Para 39][427-C-D]
      3.2 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        G
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. The
compensation awarded was not adequate. [Para 40][427-D-E]

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412            SUPREME COURT REPORTS                      [2021] 4 S.C.R.


A           3.3 Looking to the facts that both the appellants are more
      than 75 years of age now, 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,
B
      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 legal heirs of the
C     deceased. [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 Singh
            vs. State of Madhya Pradesh (2008) 15 SCC 667 :
            [2008] 14 SCR 574 – referred to.
D                           Case Law Reference
      AIR (1945) Nagpur, Oudh,
      Peshawar & Sind 104                  approved          Para 35
      (2019) 18 SCC 571                    relied on         Para 38
E
      [ 2011] 13 SCR 177                   referred to       Para 41
      [2008] 14 SCR 574                    referred to       Para 42
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      125 of 2021.
F           From the Judgment and Order dated 09.11.2020 of the High Court
      of Orissa at Cuttack in Criminal appeal No. 207 of 1988.
            With
            Criminal Appeal No. 126 of 2021
G            Basant 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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 PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA                              413


      The Judgment of the Court was delivered by                            A
      ASHOK BHUSHAN, J.
      1. Leave granted.
      2. These two appeals by the accused have been filed against the
common judgment of the Orissa High Court dated 09.11.2020 dismissing        B
the 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 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           C
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             D
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 No.210       E
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          F
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     G
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 volunteered that the appellants are willing to compensate the
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414            SUPREME COURT REPORTS                          [2021] 4 S.C.R.


A     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 324 of the IPC on the ground that
            what was used was a baton. He volunteers that the petitioners
B           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
C           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.

D           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
E
            the legal heirs of the deceased in person.”
            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:
F           “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
G           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.
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  PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA                             415
               [ASHOK BHUSHAN, J.]

      Both the learned senior counsel for the petitioner and learned        A
      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           B
Mehrotra has appeared for the State of Odisha and Ms. Priyanka 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.     C
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        D
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 to be paid to the legal heirs,
the offences be compounded.                                                 E

      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         F
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    G
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 during trial for
identification. Learned counsel further submits that there were material
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416             SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A     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
B
      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
C     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.
            12. Learned counsel appearing for the legal representatives of
      the deceased, Kasinath Naik, expressed their agreement to proposal of
D     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.

E           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
F           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
G           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 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
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PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA                                 417
             [ASHOK BHUSHAN, J.]

  had called him to go to the police station. After sometime, Kasinath        A
  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
                                                                              B
  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            C
  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   D
  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           E
  the deceased was taken to the other side verandah of the police
  station and was assaulted. Though the informant was not able to
  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            F
  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            G
  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             H
418      SUPREME COURT REPORTS                            [2021] 4 S.C.R.


A     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
B
      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
C     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 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
D
      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
E     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
F
      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.
G     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.”
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  PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA                              419
               [ASHOK BHUSHAN, J.]

        15. The prosecution in the trial has examined 39 witnesses, i.e.,    A
PW.1 to PW.39. PW.1, Kusia Naik, being 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
                                                                             B
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       C
      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.    D
      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.”
       16. The defence which was taken on behalf of the accused before       E
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    F
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       G
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. 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:      H
420            SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A            “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,
B
            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
C           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
D     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 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
E     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
F     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.
G
            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
H
  PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA                             421
               [ASHOK BHUSHAN, J.]

court to the fact that both deceased and informant arrived at Police        A
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        B
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.
       21. Now, we may notice the submissions of the learned counsel        C
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          D
      shooting, stab-bing 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         E
      in-hale, 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      F
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 lathi and batten are
                                                                            G
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.
                                                                            H
422            SUPREME COURT REPORTS                            [2021] 4 S.C.R.


A           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
B
      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.
             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
C     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.
D
            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.
E           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
F
            anus.
            7. Pressure abrasion in an area of 2" x 1" on left elbow joint on its
            posterior as pect.
            8. Pattern bruise in an area of 7" x 5" on the lateral aspect of the
G           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.
H
  PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA                                423
               [ASHOK BHUSHAN, J.]

      11. Pattern bruise 12 cm x 1" on left side of back over the left         A
      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         B
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 unsustainable.
We, thus, affirm the conviction of accused under Section 324 IPC.
       26. Now, we come to the submission, which has been much pressed         C
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:-
                                                                               D
      “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.”
                                                                               E
      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 to
      which he is committed, or, as the case may be, before which the          F
      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
                                                                               G
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
                                                                               H
424            SUPREME COURT REPORTS                          [2021] 4 S.C.R.


A     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
B     (5) of Section 320 provides that “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.
C
             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
D
      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 offenders have to bring to the
      Courts and punish for their offences to maintain peace and order in the
E
      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
F
      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 for 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
G     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 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
H
  PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA                              425
               [ASHOK BHUSHAN, J.]

below, the victim was beaten so mercilessly that he passed stool, Urine      A
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           B
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
                                                                             C
that case was found guilty of cheating. He 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   D
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       E
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     F
      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 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
                                                                             G
      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...”
                                                                             H
426             SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A            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,
B     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
      offence committed on them shall be redressed and the guilty be punished.
      When the protector of people and society himself instead of protecting
C
      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
D
      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
E     34: -
            “34. As the police in this case are the violators of law, who had
            the primary responsibility to protect and uphold law, thereby
            mandating the punishment for such violation to be proportionately
            stringent so as to have effective deterrent effect and instill
F           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
G
            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.”
H
  PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA                               427
               [ASHOK BHUSHAN, J.]

       38. The observations as quoted above are fully attracted in the        A
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
                                                                              B
have themselves brutally beaten the deceased, who died the same night.
Their offences cannot be compounded by the 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       C
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      D
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      E
deceased. We 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            F
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/
                                                                              G
      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
                                                                              H
428            SUPREME COURT REPORTS                          [2021] 4 S.C.R.


A           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 the question of
            sentence awarded to the appellants.”
B
            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
C           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
D           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
E           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.
            14. In our considered opinion, it would not be appropriate to order
            compounding of an offence not compoundable under the Code
F           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.”
G            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,
H
  PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA                                 429
               [ASHOK BHUSHAN, J.]

sentence of one year is reduced to six months by awarding compensation          A
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 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
                                                                                B
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         C
of the deceased. The compensation to the legal heirs be paid as directed
above.

Nidhi Jain                                            Appeals partly allowed.
                                                                                D




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                                                                                H