Judgment Criminal Appeal No. 893 is by the adult accused and Crl. App. No. 894 of 1983 is by his younger brothers, the two Juvenile accused and are directed against the judgment of the Principal Sessions Judge North Division at Vellor, in S.C. Nos. 96 and 97 of 1983, respectively, convicting the adult accused for an offence under section 304. Part I, Indian Penal Code, and sentencing him to undergo rigorous imprisonment for a period of five years and convicting the two juveniles for an offence underS.304, Part I, r/w 109,I.P.C., and ordering their detention for a period of two years in Senior Approved School at Chengalpattu. The adult accused (hereinafter referred as the first accused) and the two juveniles (hereinafter referred to as J1 and J2) are brothers. In the above two Sessions cases they were tried for an offence underS.302, I.P.C, in that on 22.5.1983 at about 12.30 p.m. in their village Vadavirinjipuram, in furtherance of a common intention, they caused the death of one Venkatesan, the first accused stabbed him on his back with a knife while J1 and J2 caught hold of his hands. The prosecution case was that the house of Subramani, the father of A1, J1 and J2 and the house of P.W.11 were situated near each other. There was a house in between the above two houses, regarding which P.W.1 had entered into a sale agreement with Govindaraj, the owner of the above house, for a sum of Rs.7,000. Subramani, who had also intended to purchase the house, was aggrieved over the sale agreement and as a result of this there had been enmity between the two families. P.W.2 is the wife of P.W.1. The deceased is the younger brother of P.W.2. A day prior of he occurrence, i.e., on 21.5.1983, P.W.1 had spread some cocoanut stalks in the land which he had agreed to purchase. They had gone out of the village during day and when they returned at 8 p.m. the deceased told them that Subramani had objected to the coconut stalks being spread in the land and that he had told them that after P.W.1 returned he would pass on the information to him (P.W.1). The next day, i.e., on 22nd May, 1983 at about 12.30 p.m. P.W.1 was at home since he was not doing well. Pw.2 also was at home. The next day, i.e., on 22nd May, 1983 at about 12.30 p.m. P.W.1 was at home since he was not doing well. Pw.2 also was at home. The first accused had come there and had asked P.Ws.1 and 2 to remove the cocoanut stalks. P.W.1 had stated that since he was not doing well that day he would remove them the next day. The first accused, however, persisted that the coconut stalks must be removed immediately. Thereupon, P.W.2 intervened and stated that because P.W.1 was not doing well they had undertaken to remove the stalks the next day. The first accused thereupon abused P.W.2 in a filthy language for having come to the rescue of P.W.1. The deceased, who came to the scene just then and finding that his sister, P.W.2 was being abused in a vulgar lan guage, found fault with the first accused as to why he was using a language which even the husband of P.W.2 would not us. Thereupon, J1 and J2 lifted the deceased and when the deceased tried to wriggle out, they caught hold of his two hands and suddently the first accused with his pen knife, M.O.1, stabbed the deceased on the back four or five times. When alarm was raised the three accused ran away. P.W.5 saw the three persons running away from the scene. Though some first aid was sought to be given to the deceased, within about half an hour he died. P.W.1 thereafter went to the police station and at 3 p.m.gave Exs. P1 to P.W.10, who registered the same as Crime No. 102 of 1983 for an offence underS.302, I.P.C. Investigation was taken up, observation mahazar, Ex.P11 was prepared, blood-stained earth from the scene of occurrence was recovered and inquest was held between 11 p.m. and 1 a.m., that night, the inquest report being Ex.P14. The dead body was sent through P.W.8 a constable, to P.W.7 the Medical Officer, who conducted autopsy on the dead body on 23rd May, 1983 at 12.35 p.m., and found on the dead body the following injuries: 1. Incised wound 5 × 2 × cms on the back over paraspinal area of D-7 on left side. 2. Incised wound 3 × 2 × 2 cms over paraspinal area of D-9 left side. 3. Incised wound 3 × 2 × 2 cms over paraspinal area of L2. 4. Incised wound 5 × 2 × cms on the back over paraspinal area of D-7 on left side. 2. Incised wound 3 × 2 × 2 cms over paraspinal area of D-9 left side. 3. Incised wound 3 × 2 × 2 cms over paraspinal area of L2. 4. Incised wound 5 × 2 × 9 cms over paraspinal area of D-7 right side. Frothy blood extruding through the wound. 5. Incised wound 7 × 2 × 2 cms over paraspinal area of D-9 right side. Ex.P5 was the post mortem certificate. According to P.W.7, the deceased would appear to have died of injury to vital organ, viz., right lung. J2 was arrested on 25th May, 1983 and on his information M.O.1 knife was recovered. The first accused surrendered at the police station. After completing investigation two separate charge sheets were laid, one against the first accused and the other against J1 and J2. 2. During trial in both the cases, P.Ws.1 to 11 were examined and Exs. P1 to P14 were marked. M.Os. 1 to 10 were also produced, In the case against J1 and J2, C.W.1, the Radiologist, was examined and Exts. C1 and C2 were marked to show that J1 was aged 17 years and J2 was aged 14 years. 3. When questioned underS.313, Cr.P.C. the Accused denied their complicity in the Crime. They did not examine any witness on their side. 4. The trial Court, on the evidence placed before it, found that, aided by J1 and J2. the deceased had died as a result of the stab injuries inflicted by the first accused. However, finding that the first accused did not have the necessary intention to cause the death of the deceased and could only be convicted for an offence underS.304, Part 1,I.P.C., convicted him thereunder. J1 and J2 were convicted for an offence underS.304 , Part I read with 109,I.P.C. The present appeals are directed against the above conviction and sentence. 5. However, finding that the first accused did not have the necessary intention to cause the death of the deceased and could only be convicted for an offence underS.304, Part 1,I.P.C., convicted him thereunder. J1 and J2 were convicted for an offence underS.304 , Part I read with 109,I.P.C. The present appeals are directed against the above conviction and sentence. 5. Thiru V. Gopinath, learned counsel for the appellants, contended that J1 and J2 ought not to have been convicted for an offence under S. 304 , Part I, read with 109 , I.P.C. since the evidence relating to abetment by aid was not satisfactory and there was no abetment by any instigation and the stab inflicted by the first accused was itself sudden, which J1 and J2 could not have anticipated and that, therefore, J1 and J2 were entitled to an acquittal. Regarding the case against the first accused, learned counsel submitted that subsequent to this occurrence. Subramani, the father of the first accused, J1 and J2 had been murdered and following that, on the intervention of the elders in the village, all disputes between the above two families were compromised and an agreement of compromise had also been drawn up and in the interest of peace and good relationship between the two families, even in the case relating to the murder of Subramani the prosecution witnesses had not tendered any evidence in support of the prosecution and the case, therefore, had ended in an acquittal and this would be a circumstance which could be taken into consideration in awarding lenient sentence on the first accused. In fact, a petition seeking permission of the Court to compound the matter has also been filed and though the offence underS.304, Part I, I.P.C, was not legally compoundable, still in view of the decision of the Supreme Court in Rampujan v. State of Uttar Pradesh Rampujan v. State of Uttar Pradesh 1973 Crl.L.J. 1612, the first accused need not be sent back to jail. 6. Learned Public Prosecutor also was heard. 7. The question that arises for consideration is whether the offence of abetment as against J1 and J2 had been made out and whether the first accused could be dealt with in accordance with the principles laid down in the above decision of the Supreme Court? 8. 6. Learned Public Prosecutor also was heard. 7. The question that arises for consideration is whether the offence of abetment as against J1 and J2 had been made out and whether the first accused could be dealt with in accordance with the principles laid down in the above decision of the Supreme Court? 8. Taking the case of J1 and J2, it is seen that they are younger brothers of the first accused. On the day of the occurrence, even according to the prosecution, there was no common intention or pre-meditation or prior concert between the three brothers. It was the first accused who had gone to the house of P.Ws.1 and 2 and had insisted upon the cocoanut stalks being removed immediately. It was only accidentally J1 and J2 came to the spot. In fact, both of them arrived after the deceased had come to the scene. In such circumstances, it is highly improbable whether J1 and J 2 could have abetted the crime by catching hold of the hands of the deceased. J1 is said to have caught the right hand and J2 is said to have caught the left hand. Even on that aspect, there is some little difference in the evidence of P.W.1. At one stage P.W.1 would say that all the three brothers lifted the deceased. He would also add that all the three surrounded the deceased. P.W.1 has stated that J1 and J2 did not make the deceased to stand before the first accused and also that the stab by the first accused was sudden. In such circumstances, it could not be said that J1 and J2 could have anticipated that the first accused whipped out his knife to stab the deceased and it could also be not said that even if they caught hold of the deceased it was with an intention of helping the first accused to stab the deceased. In view of the evidence of P.Ws.1 and 2 that the attack by the first accused on the deceased was sudden, I am unable to hold that Jl and J2, with the intention of helping the first accused to stab the deceased, committed the offence as charged. At any rate, the evidence on that aspect is not free from doubt and J1 and J2 would be entitled to the benefit of doubt. At any rate, the evidence on that aspect is not free from doubt and J1 and J2 would be entitled to the benefit of doubt. Apart from that, it is not stated that J1 and J2 uttered any words, thereby indicating their intention to help the first accused. The conviction of J1 and J2, therefore, for the offence under S. 304 , Part I, read with 109 , I.P.C., is hereby set aside. Crl. App. No. 894 of 1983 is allowed. 9. Regarding the case against the first accused, an affidavit by P.W.2, who is the elder sister of the deceased, has been filed to the effect that her parents had died leaving the deceased when he was seven years old, that ever since then the deceased had been brought up by her and had studied upto 10th standard, that he was aged 20 years at the time of occurrence and had not yet married, that after the murder of her younger brother, the deceased, all the disputes between her family and the family of the first accused have been settled since, in between Subramania Gounder, the father of the first accused, himself had been murdered, that the settlement efiected in the village was given effect to in the murder case itself and the prosecution witnesses did not support the prosecution, thereby making the case end in an acquittal and that in pursuance of the same compromise the parties desired that the first accused need not be sent back to prison, since it might affect the peaceful and cordial relationship that now exists between the families in the village. 10. The offence underS.304, Part I,I.P.C., is no doubt, non-compoundable. However, under exactly similar circumstances, the Supreme Court in the decision reported in Rampujan v. State of Uttar Pradesh Rampujan v. State of Uttar Pradesh 1973 Crl.L.J. 1612 (S.C.), and refereed to above, has observed that this would be a circumstance in determining the quantum of sentence. In the above case, the conviction was for an offence underS.326, I.P.C., which is also a non- compoundable offence. However, when an application for compounding was filed, the Supreme Court held that since the parties belonged to one family and had since settled their disputes, it was not necessary to keep the accused in prison for any longer period. The major offence,S.326,I.P.C., was, no doubt, non-compoundable. However, when an application for compounding was filed, the Supreme Court held that since the parties belonged to one family and had since settled their disputes, it was not necessary to keep the accused in prison for any longer period. The major offence,S.326,I.P.C., was, no doubt, non-compoundable. But the fact of the compromise could be taken into account in determining the quantum of sentence. Laying down the above principle, the Supreme Court reduced the sentence of imprisonment to the period already undergone, provided each of the appellants paid a fine of Rs. 1,500 in addition to the period of imprisonment already undergone. It is brought to my notice that in the instant case, the first accused has already been in prison for nearly three months. The father of the first accused himself has been murdered and the family of the first accused, in pursuance of the compromise, had allowed the case to end in an acquittal. I, therefore, feel that the first accused need not be sent back to prison. The conviction of the first accused for the offence underS.304, Part I,I.P.C., is confirmed, but the sentence of imprisonment for a period of five years imposed by the trial court is reduced to the period of imprisonment already undergone. With this modification in sentence, Crl. App. No. 893 of 1983 (filed by the first accused) is dismissed, Crl. App. No. 894 of 1983 (filed by the juveniles) is allowed and the juveniles are acquitted. B.S. ----- Appeal dismissed & Appeal allowed.