# PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA & ANR

- **Citation:** [2021] 4 S.C.R. 407
- **Court:** Supreme Court of India
- **Decided:** 2021-02-11
- **Case number:** Criminal Appeal No. 125 of 2021
- **Bench:** Ashok Bhushan, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pravat-chandra-mohanty-v-the-state-of-odisha-anr-35228
- **Pages:** 23

## Headnote

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
- 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
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
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
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
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.
407
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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
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
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
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
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
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
lathi and wooden

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 [2021] 4 S.C.R. 407
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 by
dangerous weapons or means - Two police officers mercilessly beat
victim 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 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
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
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
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
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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SUPREME COURT REPORTS
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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
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
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
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
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
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
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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offence". Wooden lathi and baton 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 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
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]
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
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,
2005, offence under Section 324 IPC has been made noncompoundable 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]
2.2 The offence under Section 324 in the facts of the instant
case can be compounded only with permission of the Court. SubSection (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
not permissible only on the agreement on the request of the
appellant which may be also accepted by the legal heirs of the
PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA
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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
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
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
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
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
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
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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Inspector, posted at the same Police Station. The Police of State
is protector of law and order. The people look forward to the
Police to protect their life and property. People go to the Police
Station with the hope that their person and property will be
protected by the police and injustice and offence committed on
them shall be redressed and the guilty be punished. When the
protector of people and society himself instead of protecting the
people adopts brutality and inhumanly beat the person who comes
to the police station, it is a matter of great public concern. The
beating of a person in the Police Station is the concern for all and
causes a sense of fear in the entire society. [Para 36][426-B-D]
2.6 Present is a case where this Court is not to grant leave
for compounding the offences under Section 324 IPC as prayed
by the counsel for the appellants. The present is a case where
the accused who were police officers, one of them being in-charge
of Station and other Senior Inspector have themselves brutally
beaten the deceased, who died the same night. Their offences
cannot be compounded by the 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.
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
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
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]
PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA
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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,
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
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.
Case Law Reference
AIR (1945) Nagpur, Oudh,
Peshawar & Sind 104
approved
Para 35
(2019) 18 SCC 571
relied on
Para 38
[ 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.
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
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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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 the
common judgment of the Orissa High Court dated 09.11.2020 dismissing
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
undergo R.I. for eight years and accused Pravat Chandra Mohanty under
Section 304 (Part II) to undergo R.I. for five years. Both the accused
were further sentenced under Section 471 IPC read with Section 466
IPC to undergo R.I. for three years and R.I. for three months under
Section 342 IPC and R.I. for one month under Section 323 IPC by
judgment dated 29.08.1988.
3. Aggrieved by the judgment of the trial court the appellants,
Pravat Chandra Mohanty (hereinafter referred to as "Mohanty") filed
Criminal Appeal No.207 of 1988 and Pratap Kumar Choudhury
(hereinafter referred to as "Choudhury") filed Criminal Appeal No.210
of 1988 before the Orissa High Court. The High Court decided both the
appeals by its judgment and order dated 09.11.2020 partly allowing the
appeals. The conviction of both the appellants under Section 304 (Part
II) IPC read with Section 34 IPC and Section 342/34 IPC was set aside
and their conviction under Sections 323/34 IPC and 471/34 IPC was
upheld. The High Court convicted both the appellants under Section
324/34 IPC. Simple imprisonment for one month was imposed under
Section 323/34 IPC. Simple imprisonment for three months for the offence
under Section 471/34 IPC and simple imprisonment for one year for the
offence under Section 324/34 IPC were imposed by the High Court. All
the sentences were to run concurrently. Aggrieved by the above judgment
these appeals have been filed.
4. When these appeals were taken by this Court on 17.12.2020,
learned counsel for the appellants confined his submissions to the
conviction under Section 324 IPC only. Learned counsel for the appellants
further volunteered that the appellants are willing to compensate the
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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
are willing to compensate the family of the deceased and that
they are now in their middle 70s. On a Court query learned counsel
offers and agrees to deposit Rs.3.5 lakhs each for the two
petitioners each totaling to Rs.7 lakhs as compensation in this
Court within three weeks so that the total compensation admissible
to the family would be 10 lakhs taking into consideration Rs. 3
lakhs awarded to the legal representatives of the deceased which
the State Government would have paid.
Issue notice on the SLP as well as on the interim bail returnable in
the first miscellaneous week post the winter recess.
We consider appropriate to implead the legal representatives of
the deceased as respondents.
Amended memo of parties be filed.
Notice be also issued to the said respondents.
Dasti in addition through the standing counsel for the State and to
the legal heirs of the deceased in person."
5. Legal heirs/representatives of the deceased were impleaded in
these appeals and they entered appearance before this Court. On
08.01.2021 following order was passed:
"Applications for exemption from filing c/c of the impugned
judgment and official translation are allowed.
Learned counsel for the legal heirs of the deceased have entered
appearance through counsel and are agreeable to the proposal
made by learned counsel for the petitioner on 17.12.2020 which
was recorded by us.
Learned counsel for the State submits that he has just entered
appearance and may be given a short accommodation to obtain
instructions and make necessary submissions.
List on 13.01.2021.
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Both the learned senior counsel for the petitioner and learned
counsel for the State will submit a one page synopsis in advance
on the course of action suggested by them."
6. Thereafter, the appeals were heard by this Court on 04.02.2021.
We have heard Shri R. Basant, learned senior counsel and Shri Yasobant
Das, learned senior counsel for the appellants. Shri Ravi Prakash
Mehrotra has appeared for the State of Odisha and Ms. Priyanka Vora
has appeared for the legal representatives of the deceased.
7. Shri Basant, learned senior counsel, submits that in pursuance
of this Court's order dated 17.12.2020, the appellants have already
deposited the amount of Rs.3.5 lakhs each in the Registry of the Court.
He submits that learned counsel appearing for the legal representatives
are also agreeable with the proposal made by the learned counsel for
the appellants, hence, conviction under Section 324 IPC be compounded
by this Court under Section 320(2) Cr.P.C.
8. Learned counsel submits that on the date when the offences
took place, i.e. 04.5.1985, offences under Section 324 IPC were
compoundable which subsequently have been made non-compoundable.
He submits that both the appellants are now more than 75 years of age
and acting under the order of this Court dated 17.12.2020, the appellants
having deposited amount for compensation to be paid to the legal heirs,
the offences be compounded.
9. In addition to the above submission, learned counsel for the
appellants has also contended that conviction under Section 324 IPC by
the High Court is unsustainable. He submits that the conviction under
Section 324 IPC deserves to be converted to the conviction under Section
323 IPC. He submits that the ingredients of Section 324 IPC are not
made out from the evidence brought on record. He submits that injuries
which were found on the body of the deceased were all simple injuries.
He submits that weapon of offence being only a wooden batten/lathi
which weapon was not likely to cause death, hence, conviction under
Section 324 was unjustified. He further contends that either the offence
be converted under Section 323 IPC or imprisonment be substituted by
fine.
10. Shri Basant further submits that alleged weapons of offence,
i.e., MO.IV and MO.VII were not shown to PW.1 during trial for
identification. Learned counsel further submits that there were material
PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA
[ASHOK BHUSHAN, J.]
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contradictions in the statement of PW.1-Kusia Naik, so his evidence
deserved to be rejected. He submits that the High Court itself has found
the statement of PW.1 only partially reliable. Shri Basant, however, fairly
submitted that conviction under Section 471 IPC is not sought to be
compounded which is non-compoundable. Learned counsel has not
challenged the conviction under Section 471/34 IPC and is confined his
submission only with regard to the conviction under Section 324 IPC.
11. Learned counsel for the State of Odisha, Shri Mehrotra,
referring to affidavit filed on behalf of the State submits that with regard
to the amount of compensation directed by the High Court to be given
by the State Government, the State Government has completed necessary
procedural formalities and would deposit or give the compensation amount
as directed by the High Court to the legal representatives in the mode
and manner as this Court would please direct.
12. Learned counsel appearing for the legal representatives of
the deceased, Kasinath Naik, expressed their agreement to proposal of
the learned counsel for the appellants as noticed in the order dated
17.12.2020.
13. We have considered the submissions of the learned counsel
for the parties and perused the record.
14. The High Court in its judgment has noticed the prosecution
case in paragraph 2 of the judgment. Paragraph 2 of the High Court
judgment is as follows:
"2. The prosecution case, as per the first information report (Ext.1)
lodged by Kusia Nayak (P.W.1) on 05.05.1985 (Sunday) at 11
a.m. before the D.S.P., City, Cuttack(S) is that the informant was
staying in a rented house of one Bishnu Mohanty of Rajabagicha,
Cuttack. On 02.05.1985 he had been to Nayagarh in connection
with the marriage of his nephew and returned home to Cuttack in
the morning hours of 04.05.1985. After arrival, he was informed
by his wife Kanchan Dei (P.W.18) that there was quarrel between
their Basti residents Sura and Bainshi on Friday. He went to the
market and returned at about 4 p.m. when his wife told him that
Pramod Naik, Benu Naik and Guna Naik were abusing her in
filthy language and telling her 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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had called him to go to the police station. After sometime, Kasinath
Naik (hereafter 'the deceased') also told the informant that the
constable had come and told him in that respect. Accordingly,
both the informant and the deceased decided to go to Purighat
police station. In the evening hours, when both of them reached
at Purighat police station, one police officer having mustache told
the deceased that on the next time, he would cause fracture of
the hands and legs of the son of the deceased by assaulting him
as the later had filed a case against him before the Legal Aid. The
deceased remained silent. The said police officer also used slang
language against the deceased and told that he belonged to Alisha
Bazar, Cuttack and he would not allow the family of the deceased
to stay at Cuttack and no lawyer could do anything to him. The
deceased replied to the said police officer that on being assaulted,
his wife and son had filed the case before the Legal Aid and he
did not know anything in that respect.
It is further stated in the first information report that the said police
officer having mustache gave a kick to the deceased and again
used slang language and also gave two blows on the hands of the
informant and also kicked him. Then said police officer having
mustache further assaulted the 5 deceased who cried aloud and
in that process, he sustained bleeding injuries on his body. The
informant was asked to wait in one room of the police station and
the deceased was taken to the other side verandah of the police
station and was assaulted. Though the informant was not able to
see the assault but he could hear the cries of the deceased. Then
the police officer called the informant outside and after he came
out, he saw the appellant Pravat Mohanty assaulting the deceased
by means of a stick and the deceased was crying aloud. The
informant gave water to the deceased on being told by the police
officer but the deceased was having no strength to walk and he
was just crawling. The deceased came near the informant and he
was having bleeding injuries on his hands and necks and the legs
were swollen. The deceased was telling that he would not survive
and would die. When the deceased sought permission to attend
the call of nature, the police officer having mustache and appellant
Pravat Mohanty further assaulted him. When the deceased again
requested to attend the call of nature, with permission of the police
officer, the informant took him for such purpose and after they
PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA
[ASHOK BHUSHAN, J.]
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returned, the appellant Pravat Mohanty asked the deceased as to
why he was limping. The deceased was given bread to eat but
when he refused, appellant Pravat Mohanty compelled him to
take bread and further assaulted him 6 on his knee. Getting
indication from the constable, the informant concealed the bread
and told the police officer that the deceased had already taken
the bread. The said police officer brought liquor in a bottle and
poured it in the mouth of the deceased as well as the informant
and then sprinkled liquor over them and went outside of the police
station. Sura Naik (P.W.13) who belonged to the Basti of the
informant came to the police station and talked with one Mishra
Babu secretly but on seeing the deceased and the informant, he
went away. Then appellant Pravat Mohanty again assaulted the
deceased and asked him to sit in a vehicle to go to the hospital. At
that time, it was 11 to 12 O' clock in the night. The appellant
Pravat Mohanty, a driver and a constable lifted the deceased and
placed him inside the vehicle and he was crying that he would not
survive. When the informant expressed his eagerness to
accompany the deceased to the hospital, he was told that there
was no necessity to accompany the deceased even though the
deceased was calling the informant to accompany him. After the
deceased was taken away from the police station, one constable
chained the left leg of the informant to a table of the police station
and in the morning hours, the informant was untied as per the
instruction of the appellant Pravat Mohanty. One sweeper was
called to the police station and he was asked to clean the blood
and stool of 7 the deceased which was lying at different places
inside the police station. At that time the informant came to know
that the deceased had died in the hospital last night. The widow of
the deceased had also come to the police station crying but she
was not allowed to stay there by the Havildar. It is mentioned in
the first information report that the police officer having mustache
was a fair and tall person.
On receipt of such first information report, Purighat/ Lalbag P.S.
Case No.273 of 1985 was registered under sections 302, 342,
323, 294, 201 read with section 34 of the Indian Penal Code on
05.05.1985 at 11 a.m. against appellant Pravat Mohanty and the
other police officer of Purighat police station having mustache."
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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 and
injured witness and PW.39 Gaganbehari Mohanty, being the IO. No
witness was examined for the defence. A large number of Exhibits
running Ext.1 to Ext.67/1 were produced by the prosecution. Ext.A to
Ext.J were also admitted into the evidence by defence. MO.I to MO.VII
were material objects. After marshalling evidence on record, the learned
trial judge while holding conviction under Section 304 (Part-II) read with
Section 34 IPC recorded its conclusion in paragraph 74 which is to the
following effect:
"74. It is thus found that there is nexus between death of the
deceased and the act of the accused persons in subjecting him to
long detention throughout the night and in mercilessly beating him.
Therefore, it is clear that such death was caused by the act of the
accused persons. They did it in furtherance of their common
intention. The facts of the case disclose that there might not be an
intention to cause such bodily injury as was likely to cause death.
But the facts disclose that the accused persons knew that their
act would be likely to cause death. Hence, it is found that the
accused persons also committed an offence punishable u/s 304
(Part-II) I.P.C. read with section 34 IPC."
16. The defence which was taken on behalf of the accused before
the Courts below was that deceased, Kasinath Naik came to Purighat
Police Station at about 9 p.m. on 04.05.1985 to lodge an FIR regarding
occurrence of assault on the deceased which took place on the Kathajori
River embankment at about 9 p.m. by some unknown person in which
the deceased sustained injuries. The case No.272/1985 was registered
by appellant, Mohanty who directed the appellant Choudhury to investigate
the case and maintain case diary. In order to substantiate its plea the
evidence regarding FIR in Case No.272/1985 the case diary maintained
in the said case by the appellant Choudhury was marked as Ext.63.
17. The High Court after marshalling the evidence on record has
held that the FIR lodged to have been signed by the deceased, Kasinath
Naik on which Lalbag P.S. Case No.272 of 1985 was registered did not
contain the signature of Kasinath Naik. In Case No.272/1985 final report
was submitted indicating the case to be false. 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:
PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA
[ASHOK BHUSHAN, J.]
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 "In view of the foregoing discussions, the defence plea that any
occurrence of assault on the deceased took place on the Kathajori
river embankment on 04.05.1985 at about 9.00 p.m. in which the
deceased sustained injuries and came to lodge the first information
report to Purighat police station and accordingly, the F.I.R. was
registered and that as per the direction of appellant Pravat Mohanty,
appellant P.K. Choudhury took up investigation of the case and
maintained case diary vide Ext.63 mentioning all correct state of
affairs is not acceptable. I am of the considered view that the
deceased had not presented any F.I.R. on 04.05.1985 at 10 p.m.
at Purighat police station and a false F.I.R. is shown to have been
presented by him which carries the forged signature of the
deceased vide Ext.A."
18. Both the appellants have been convicted under Section 371/
34 IPC by the courts below, finding offence of forging and fabrication of
record to be proved. The reason for fabricating the false story that
deceased, Kasinath Naik came to Police Station to lodge an FIR about
the assault on him at 9 p.m. was only with a view to save the accused,
with intent to explain injuries caused on the body of deceased which he
received during his stay in the Police Station. As noted above, the
conviction of the appellants under Section 371/34 IPC has not been
challenged before us. The defence taken by the appellants has miserably
failed. The High Court after re-appraising the evidence on record
including the oral and documentary evidence has come to the conclusion
that ante-mortem injuries noticed on the person of the deceased as per
postmortem report were caused in Purighat Police Station during his
stay from 7.30 p.m. till post midnight on 4/5.05.1985 and the evidence of
the scientific officer and chemical report also corroborates the assault
at the police station and the appellants were author of those injuries. The
trial court has also held in its judgment after marshalling the entire
evidence that injuries were caused to the deceased, Kasinath Naik in
the Police Station, Purighat by both the accused. The High Court on
reappraisal of the evidence came to the same finding.
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
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court to the fact that both deceased and informant arrived at Police
Station after 7.30 p.m. and they were mercilessly beaten by Choudhury
and Mohanty. In spite of Varandah of the Police Station washed in the
morning by the sweeper, the scientific officer, who visited the police
station found the blood stains in the Varandah.
20. The evidence of PW.1 could not have been discarded merely
because he was an agnate of the deceased. In the long cross-examination,
PW.1 could not be shaken and his evidence of account given of beating
of the deceased by the Police Officers, i.e., Choudhury and Mohanty is
to be believed and relied on.
21. Now, we may notice the submissions of the learned counsel
for the appellants challenging their conviction under Section 324 IPC.
Section 324 IPC reads:
"Section 324. Voluntarily causing hurt by dangerous weapons
or means.-Whoever, except in the case provided for by section
334, volun-tarily causes hurt by means of any instrument for
shooting, 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
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
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
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.
PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA
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23. Learned counsel further submits that MO.IV and MO.VII
were not shown to PW.1 during trial for identification. MO.IV and
MO.VII were seized and exhibited as material objects. The failure of
prosecution to show the MO.IV and MO.VII to PW.1 in no manner can
be said to be fatal to the prosecution case. Wooden lathi and batten are
the weapons of the police force and the injuries having caused to the
deceased by these weapons as has been found by the trial court and
High Court, non-showing to PW.1 cannot impeach the credibility of
evidence of PW.1.
24. Now, we look into the injuries which were found on the body
of deceased. Post Mortem report is Exhibit-43. PW.-37 Dr. Debendra
Kumar Pattnaik, had conducted the post mortem, who also appeared in
the Court. The external injuries found on the body of the deceased are
as follows:-
"1. Pattern bruise and abrasion in an area of 5" x 3" on the lateral
side of right thigh at its lower 1/3rd.
2. Pressure abrasion 2" x 1⁄2" in front of right leg 4" below the
right knee.
3. Pressure abrasion 1.1/2" x 1/2" in the medial aspect of right leg
2.1/2" above the medial malieolus.
4. Multi-pressure abrasion in an area of 10" x 4" in front of left leg
3.1/2" below the knee.
5. Lacerated wound 1/5" x 1/4% x skin deep 4.1/2" below the left
knee in front without involving the bone.
6. Grazed abrasion 1⁄2" x 1⁄2" on the left buttock 2" away from the
anus.
7. Pressure abrasion in an area of 2" x 1" on left elbow joint on its
posterior as pect.
8. Pattern bruise in an area of 7" x 5" on the lateral aspect of the
left thigh.
9. Pattern bruise in an area of 20" x 3" on the right hand from 3"
above the elbow to the dorsom of palm.
10. Pattern bruise 12 cm x 1" size in the left side of back over the
scapuliar region.
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11. Pattern bruise 12 cm x 1" on left side of back over the left
scapula region."
25. The trial court has also convicted on the inquest report prepared
by accused P.K. Chaudhary, i.e., Exhibit-16. The trial court has after
considering the evidence recorded the findings that with mala fide
intentions to suppress the injuries, description of injuries have been
minimized in Exhibit-16 by accused P.K. Chaudhary. We are not
persuaded to accept submissions of learned counsel for the appellants
that conviction by the High Court under Section 324 IPC is unsustainable.
We, thus, affirm the conviction of accused under Section 324 IPC.
26. Now, we come to the submission, which has been much pressed
by learned counsel for the appellant, i.e., composition of offence under
Section 324 IPC. Section 320 of the Code of Criminal Procedure, 1973,
provides for compounding of offence. Sub-Section (1) of Section 320
contains a table which may be compounded by persons mentioned in
third column of the table whereas sub-section (2) of Section 320 provides:-
"320(2). The offences punishable under the sections of the Indian
Penal Code (45 of 1860) specified in the first two columns of the
table next following may, with the permission of Court before
which any prosecution for such offence is pending, be compounded
by the persons mentioned in the third column of that table."
27. Sub-Section (5) of Section 320 provides as follows:-
"320(5). When the accused has been committed for trial or when
he has been convicted and an appeal is pending, no composition
for the offence shall be allowed without the leave of the Court to
which he is committed, or, as the case may be, before which the
appeal is to be heard."
28. The present is a case where accused has already been
convicted for offence under Section 324 IPC. By Cr.P.C. (Amendment)
Act, 2005, offence under Section 324 IPC has been made noncompoundable offence. Prior to the aforesaid amendment, offence under
Section 324 was compoundable. Learned counsel for the appellants is
right in his submissions that on the date when offence was committed,
i.e., 04/05.05.1985, the offence under Section 324 IPC was
compoundable. We, thus, need to examine as to whether in the present
case, the request of the appellants to which learned counsel appearing
PRAVAT CHANDRA MOHANTY v. THE STATE OF ODISHA
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for the legal representative of the deceased have also agreed need to be
accepted and this Court may permit compounding of offence under
Section 324 IPC.
29. The offence under Section 324 in the facts of the present
case can be compounded only with permission of the Court. Sub-Section
(5) of Section 320 provides that "no composition for the offence shall be
allowed without the leave of the Court." Thus, the composition of the
offence in the facts of the present case is not permissible only on the
agreement on the request of the appellant which may be also accepted
by the legal heirs of the deceased but composition is permissible only by
the leave of the Court.
30. The grant of leave as contemplated by sub-section (5) of
Section 320 is not automatic nor it has to be mechanical on receipt of
request by the appellant which may be agreed by the victim. The statutory
requirement, makes it a clear duty of the Court to look into the nature of
the offence and the evidence and to satisfy itself whether permission
should be or should not be granted. The administration of criminal justice
requires prosecution of all offenders by the State.
31. The prosecution by the State is the policy of law because all
the offences are against the society. The 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.