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2008 DIGILAW 380 (GAU)

Rafique Uddin v. State of Assam

2008-05-27

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. Two warring parties, with the intervention of the wiser men in their society, have decided to burry their enemical relation and live as good-friends and peace-loving co-villagers. This is the backdrop of the application, which has given rise to the Criminal Misc. Case No. 410/2007. 2. Let me, first, set out the facts, which have given rise to this application. One Ayub Ali lodged a First Information Report with the police alleging, inter alia, that on 4.9.1997, at about 1:00 am, accused Rofique Uddin, Nejir Uddin, Mujib Uddin and Atabur Rahman, armed with various weapons, came to the house of the informant, knocked at the door of the house and as soon as the door was opened by the informant, the accused entered into the house, assaulted the informant by means of a dragger, caught hold of his daughter, HK, and dragged her out of the house with a view to forcibly committing sexual intercourse with her, but they, eventually, failed and fled away from the scene. This FIR led to the registration of a case under Sections 457/376/511/324/34 of the Indian Penal Code ('the IPC'). On completion of investigation, police laid charge sheet accordingly. 3. During trial, all the accused pleaded not guilty to the charges framed against them under Sections457 and 324 read with Section 34, IPC and Section 376 read with Section 511, IPC. In support of their case, prosecution examined altogether four witnesses including the medical officer and the investigating officer. Having found all the accused, who had so faced the trial, guilty of offences under Sections 457 and 324 read with Section 34, IPC, the learned Sessions Judge, Hailakandi, convicted the accused aforementioned accordingly and sentenced each of them to suffer, for their conviction under Section 457 read with Section 34, IPC, to undergo rigorous imprisonment for two years and pay fine of Rs. 500 and, in default of payment of fine, suffer rigorous imprisonment for a further period of one month and also to undergo, for their conviction under Section 324 read with Section34, IPC, one year of rigorous imprisonment with payment of fine of Rs. 500 each and, in default of payment of fine, undergo rigorous imprisonment for a further period of one month, both the sentences having been directed to run concurrently. 500 each and, in default of payment of fine, undergo rigorous imprisonment for a further period of one month, both the sentences having been directed to run concurrently. Aggrieved by the judgment and order, dated 29.9.2001, passed, in Sessions Case No. 53/2000, by the learned Sessions Judge, Hailakandi, whereby the accused-Appellants stood convicted and sentenced, as indicated hereinbefore, all of them preferred an appeal, which gave rise to Criminal Appeal No. 344/2001. 4. While the appeal was pending, an application was made seeking composition of the offences of which the accused-Appellants stand convicted, the application having been made jointly by the accused-Appellants, on the one hand, and the informant, Ayub Ali, and his daughter, RK, on the other. 5. I have heard Mr. P.K. Roy Choudhury, learned Counsel for the accused-Appellants, and Mr. K. Munir, learned Additional Public Prosecutor, Assam. 6. While considering the present application seeking composition of offences under Sections 457 and324 read with Section 34, IPC, what needs to be pointed out is that according to the provisions of Section 320 of the Code of Criminal Procedure ('the Code'), an offence under Section 324, IPC is compoundable by the person to whom hurt is caused, but an offence, under Section 457, IPC, is not compoundable. The question, therefore, is this: Whether the parties to the present appeal can be allowed to compound an offence, which is, otherwise, not compoundable under Section 320 of the Code? 7. While considering the above aspect of law, what needs to be noted is that Section 320 of the Code provides a complete scheme as regards compounding of offences. Section 320(1) provides that the offences mentioned in the table, provided thereunder, can be. compounded by the persons named in column No. 3 of the said table. Section 320(2) provides that the offences mentioned in the table can be compounded by the victim with the permission of the court. The provisions for composition of offences, as embodied in Section 320 of the Code, have, however, been made subject to Sub-section (9) of Section 320 of the Code inasmuch Section 320(9) specifically provides that no offence shall be compounded except as provided by this section. 8. In view of the clear legislative mandate, it has been held by a three-Judges Bench, in Surendra Nath Mohanty and Anr. 8. In view of the clear legislative mandate, it has been held by a three-Judges Bench, in Surendra Nath Mohanty and Anr. v. State of Orissa, AIR 1999 SC 2181 , that only offences, covered by Table 1 or 2 as stated above of Section 320 of the Code, which can be compounded and the rest of the offences, punishable under the Indian Penal Code, cannot be compounded. 9. One may also point out that in Ram Pujan v. State of U.P., AIR 1973 SC 2418 , the court had held that though major offences for which the accused stood convicted were, undoubtedly, non-compoundable the fact of compromise can be taken into account in determining the quantum of sentence. 10. In Ramlal v. State of J&K AIR 1997 SC 895, the Supreme Court, referring to its earlier decision in Y. Suresh Babu v. State of A.P., JT (1987) 2 (SC) 361, held, at p. 2182, thus: "We gave our anxious consideration to the case and also the plea put forward for seeking permission to compound the offence. After examining the nature of the case and the circumstances under which the offence was committed, it may be proper that the trial court shall permit them to compound the offence." It may also be pointed out that in Y. Suresh Babu (supra), the Supreme Court had specifically observed at para 7, thus: In the case of Y. Suresh Babu, JT (1987) (2) (SC) 361 the Court has specifically observed that the said case shall not be treated as a precedent. 11. Having considered the decisions in Ram Pujan (supra), Mahesh Chand v. State of Rajasthan, AIR 1988 SC 2111 and Y. Suresh Babu (supra), the three-Judge Bench of the Supreme Court, in Surendra Nath Mohanty (supra), has held that the law laid down, in these decisions were not in accordance with law. 12. Having, thus, held that the law, laid down in Ram Pujan, Mahesh Chand, Y. Suresh Babu (supra), was not in accordance with law, the Apex Court nevertheless observed, held and ordered at para 8 as follows: We reiterate that the course adopted in Ram Pujan v. State of U.P., AIR 1973 SC 2418 : 1973 Cri LJ 1512 and Mahesh Chand v. State of Rajasthan, AIR 1988 SC 2111 : 1989 Cri LJ 121 (supra) was not in accordance with law. However, considering the fact that parties have settled their dispute outside the court and the fact that 10 years have elapsed from the date of the incident and further fact that Appellants have already undergone 3 months imprisonment as per the sentence imposed on them, we think that ends of justice would be met if the sentence of imprisonment is reduced to the period already undergone besides imposing a fine of Rs. 5,000 on each of the accused under Section 326 read with Section 34, IPC. We reduce the sentence as indicated above and direct that in default of payment of fine, the Appellant concerned shall undergo simple imprisonment for a further period of three months. We also refrain from imposing any separate sentence on the other counts of offences. Out of the fine amount, if realized, a sum of Rs. 9,000 also be paid to the injured as compensation. 13. The decision in Surendra Nath Mohanty's case (supra) clearly shows that an offence, which is not compoundable under Section 320, cannot be compounded. However, the fact of compromise can be a relevant factor for the purpose of considering the quantum of sentence to be passed in a given case. This becomes clear from the case of Jetha Ram and Ors. v. State of Rajasthan, (2006) 9 SCC 255 , too, wherein the Apex Court has held that since an offence, under Section 326, IPC, is not compoundable, it is not possible to record the compromise, but it is well settled that the fact of compromise can be taken into consideration, while awarding the sentence. 14. In the light of the law as discussed above, it becomes clear that in the present case, since the offence under Section 457, IPC, which the accused-Appellants stand convicted of, is not compoundable, the application made by the parties concerned, seeking composition of offences under Sections 324 and 457 read with Section 34, IPC, cannot be allowed in its entirely, particularly, so far as the conviction under Section 457 read with Section 34, IPC is concerned. The factum of compromise, which the parties have entered into, can, however, be taken into account as a relevant factor, when awarding the sentence. 15. The factum of compromise, which the parties have entered into, can, however, be taken into account as a relevant factor, when awarding the sentence. 15. It is also of some significance to note that in the present case, though the appeal was preferred by the Appellants against their conviction and the sentences passed against them, the evidence on record being clinching against the accused-Appellants, the appeal has not really been pressed, on their behalf, so far as the merit of their conviction is concerned. It is, however, been submitted, on behalf of the Appellants, that as the accused-Appellants, the informant and his family are co-villagers and they have settled their differences with the intervention of their elders in the society and as they have decided to live peacefully and in friendly relation, their sentences be reduced to the period already undergone by them. 16. In the light of the fact that the case was lodged in the year 1997, a period of about 10 years has already elapsed, the accused-Appellants have remained behind the bar for quite some time and the accusation of their having attempted to commit rape was found to have not been proved and, particularly, when the accused-Appellants and the informant's family have decided to live as friendly co-villagers, it would meet the ends of justice if the sentences, passed against the accuser-Appellants, be reduced to the period of imprisonment already undergone by them. 17. Considering, therefore, the matter in its entirety, while the application for composition of the offence under Section 324 read with Section 34, IPC is hereby allowed, their application for composition of offence under Section 457 read with Section 34, IPC is hereby rejected and their conviction under Section 457 read with Section 34, IPC is hereby upheld, but their sentences are reduced to the periods of imprisonment already undergone. 18. With the above observations and directions, the appeal as well as the miscellaneous application shall stand disposed of. 19. Send back the LCR.