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2016 DIGILAW 1833 (GUJ)

Goswami Hardevgiri Ramgiri v. State of Gujarat

2016-08-31

G.B.SHAH

body2016
JUDGMENT : G.B SHAH, J. As Criminal Appeal as well as Criminal Revision Application arise out of the same judgment and order, they were heard together and are being decided by this common judgment. 2. Both these Criminal Appeal and Criminal Revision Application arise out of judgment and order dated 28.4.2005 passed by the learned Additional Sessions Judge and 8th Fast Track Judge, Mehsana, in Sessions Case No. 198 of 2004 whereby original accused were convicted and sentenced to suffer RI for three years and to pay fine of Rs. 1,000/- each, in default, to suffer further SI for three months for the offence punishable under section 325 of IPC and RI for six months and to pay fine of Rs. 500/- each, in default, to suffer further SI for one month for the offence punishable under section 323 of IPC. All the sentences were ordered to run concurrently. Accused were given benefit of set off for the period undergone in jail. Criminal Appeal No. 918 of 2005 is filed by the original accused against their conviction while Criminal Revision Application No. 568 of 2005 is filed by the original complainant for enhancement of sentence imposed on original accused. 3. Short facts of the case of the prosecution are that a complaint was filed by the complainant-Vishnubhai Dahyabhai Modi before Kheralu Police Station being II.C.R No. 78 of 2002 against the accused for the offence punishable under sections 307, 323, 294(B), 506(2) and 34 of IPC and also under section 135 of B.P Act. In pursuance of the said complaint, investigation started and as there appeared prima facie case against the accused, a charge sheet was filed against the accused Thereafter charge was framed against the accused. The charge was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 To, prove the guilt against the accused, prosecution examined several witnesses and also relied on several documentary evidence. After filing of closing pursis by the prosecution, further statements of accused under Sec.313 of Cr.P.C were recorded. 3.2 On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, impugned judgment and order as aforesaid in the earlier part of this judgment was delivered giving rise to the present Criminal Appeal by the original accused and Criminal Revision Application by the original complainant. 4. 3.2 On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, impugned judgment and order as aforesaid in the earlier part of this judgment was delivered giving rise to the present Criminal Appeal by the original accused and Criminal Revision Application by the original complainant. 4. Heard learned advocates, Mr. Mehul Sharad Shah for the original accused, Mr. Nitin M. Amin for the original complainant and learned Addl. Public Prosecutor, Ms. Reeta Chandarana for the State. 5. Before effective hearing, it is jointly submitted by the learned advocates appearing for the parties that the matter is settled and compromise has been arrived at between the parties and two separate affidavits duly signed by both the parties are produced before the Court, which are taken on record. It is, therefore, requested that considering the compromise arrived at between the parties, the sentence imposed on the accused may be reduced the period they have already undergone in jail. 6. This Court has gone through the impugned judgment and order as also the affidavits filed in the matters. 7. It has been held by the Hon'ble Supreme Court in the case of Ishwar Singh v. State of Madhya Pradesh reported in AIR 2009 S.C 675 from paragraphs 13 to 16 as under: “13. Now, it cannot be gainsaid that an offence punishable under 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 purpose of reduction of sentence. 14. In Jetha Ram v. State of Rajasthan, (2006) 9 SCC 255 , Murugesan v. Ganapathy Velar, (2001) 10 SCC 504 and Ishwarlal v. State of M.P, JT 1988 (3) SC 366 (1), this Court, while taking into account the fact of compromise between the parties, reduced sentence imposed on the appellant-accused to already undergone, though the offences were not compoundable. But it was also stated that in Mahesh Chand v. State of Rajasthan, AIR 1988 SC 2111 , such offence was ordered to be compounded. 15. But it was also stated that in Mahesh Chand v. State of Rajasthan, AIR 1988 SC 2111 , such offence was ordered to be compounded. 15. In our considered opinion, it would not be appropriate to order compounding of an offence not compoundable under the Code 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. 16. In the instant case, the incident took place before more than fifteen years; the parties are residing in one and the same village and they are also relatives. The appellant was about 20 years of age at the time of commission of crime. It was his first offence. After conviction, the petitioner was taken into custody. During the pendency of appeal before the High Court, he was enlarged on bail but, after the decision of the High Court, he again surrendered and is in jail at present. Though he had applied for bail, the prayer was not granted and he is not released on bail. Considering the totality of facts and circumstances, in our opinion, ends of justice would be met if the sentence of imprisonment awarded to the appellant (Accused No. 1) is reduced to the period already undergone.” 8. It has been held by the Hon'ble Apex Court in the aforesaid decision that while awarding sentence, the Court may keep in mind the factum of compromise arrived at between the parties being a relevant circumstance and can reduce the sentence. 9. In the case of Sathiyamoorthy v. State, represented by The Inspector of Police Madurai reported in AIR 2014 SC (Supp) 1582, it has been held by the Hon'ble Supreme Court at head note as under: “Penal Code (45 of 1860), S.341, S.325, S.148, S.149-WRONGFUL RESTRAINT-COMPOUNDING OF OFFENCE-Wrongful restraint, grievous hurt, rioting and unlawful assembly-Sentence-Both accused and victim have entered into a compromise-In view of settlement between parties, compoundable offences under Ss. 341 and 325 permitted to be compounded-Permission to compound non-compoundable offences under Ss. 148 and 149 cannot be granted-However in view of fact that appellants having undergone more than six months imprisonment-Their conviction is reduced to sentence already undergone by them subject to appellants paying Rs. 30,000/- as compensation to victim.” 10. 341 and 325 permitted to be compounded-Permission to compound non-compoundable offences under Ss. 148 and 149 cannot be granted-However in view of fact that appellants having undergone more than six months imprisonment-Their conviction is reduced to sentence already undergone by them subject to appellants paying Rs. 30,000/- as compensation to victim.” 10. It has been held by the Hon'ble Apex Court in the aforesaid decision that although permission to compound non-compoundable offences cannot be granted, however, if the accused has undergone more than six months imprisonment-while awarding sentence, the Court may keep in mind the factum of compromise between the parties being a relevant circumstance and can reduce the sentence. 11. In the background of the aforesaid decisions of the Hon'ble Supreme Court, this Court has gone through the affidavits filed in the matters. It appears that incident in question took place before 14 years on trivial issue all of a sudden. Both the parties are staying in the same Village since last many years. It further appears that since the alleged incident, no adverse incident or quarrel or any litigation had taken place between the parties and both the parties are staying peacefully and in order to maintain peace and harmony between the parties, they have entered into compromise with their own consent and free will and sought to compound the offence. 12. Considering the averments made in the affidavits and also considering the facts that matter is settled between the parties as per the compromise and the accused have remained in jail for some period, this Court is of the opinion that the parties can be permitted to compound the offence and hence, the appeal is required to be partly allowed and the sentence imposed on the accused is required to be reduced to the period already undergone by them in jail. 13. Thus, Criminal Appeal No. 918 of 2005 is partly allowed. While confirming the conviction, the sentence imposed on the original accused is ordered to be reduced to the period already undergone. They are reported to be on bail and hence, their bail bonds shall stand cancelled. Impugned judgment and order dated 28.4.2005 passed by the learned Additional Sessions Judge and 8th Fast Track Judge, Mehsana, in Sessions Case No. 198 of 2004 is modified only to the aforesaid extent. Remaining part of the impugned judgment shall remain unaltered. Criminal Revision Application, however, is dismissed. Impugned judgment and order dated 28.4.2005 passed by the learned Additional Sessions Judge and 8th Fast Track Judge, Mehsana, in Sessions Case No. 198 of 2004 is modified only to the aforesaid extent. Remaining part of the impugned judgment shall remain unaltered. Criminal Revision Application, however, is dismissed. Rule is discharged. Record and proceedings shall be sent back forthwith to the trial court. 14. It is clarified that the observations by this Court in this common judgment being made for the purpose of deciding these matters looking to the peculiar facts and circumstances of the cases, this judgment may not be treated as precedent.