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2016 DIGILAW 1947 (GUJ)

Miteshkumar Manharlal Dave v. State of Gujarat

2016-09-06

G.B.SHAH

body2016
JUDGMENT : G.B SHAH, J. This appeal arises out of judgment and order dated 8.4.2002 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 74 of 2001 (Old No. 19 of 1998) whereby original accused No. 2 was convicted and sentenced to suffer RI for seven years and to pay fine of Rs. 5,000/-, in default, to suffer further SI for three months for the offence punishable under section 306 of IPC and both the 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 498-A read with section 114 of IPC. Both the sentences of accused No. 2 were ordered to run concurrently. Accused were given benefit of set off for the period undergone in jail. 2. Short facts of the case of the prosecution are that a complaint was filed by the complainant-Saritaben Hasmukhbhai Bhatt before Dehgam Police Station being I.C.R No. 197 of 1997 against the accused for the offence punishable under sections 498-A, 304, 306 and 114 of IPC. 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. 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. 4. 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. 5. Heard learned advocates, Mr. H.B Shethna for the original accused and learned Addl. Public Prosecutor, Mr. K.L Pandya for the State. 6. Before effective hearing, it is submitted by the learned advocate appearing for the appellant that the matter is settled and compromise has been arrived at between the parties and an affidavit duly signed by the complainant is produced before the Court, which is taken on record. Public Prosecutor, Mr. K.L Pandya for the State. 6. Before effective hearing, it is submitted by the learned advocate appearing for the appellant that the matter is settled and compromise has been arrived at between the parties and an affidavit duly signed by the complainant is produced before the Court, which is 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 to the period already undergone in jail. 7. This Court has gone through the impugned judgment and order as also the affidavit filed in the matter. 8. It has been held by the Hon'ble Supreme Court in the case of Ishwar Singh v. State of Madhya Pradesh reported in (2008) 15 SCC 667 : 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 , Murugesanv. 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, 1990 Supp SCC 681 : 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 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.” 9. 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. 10. 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.” 11. 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.” 11. 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. 12. In the background of the aforesaid decisions of the Hon'ble Supreme Court, this Court has gone through the affidavit filed in the matter. It appears that incident in question took place before 19 years and with passage of time, family members of the accused have reached to the complainant's family and expressed remorse and sympathy regarding loss of life of the complainant's daughter, which is accepted by her. She has further stated that appellant No. 1 aged about 44 years is suffering from acute knee problem and appellant No. 2 aged about 75 years is suffering from breathlessness and weakness related to old age and vision problem due to improper cataract operation. She has further stated that appellant No. 1 has spent about 3 months in jail and appellant No. 2 has spent about 17 months in jail and thus have suffered enough and therefore, she has stated that no purpose would be served in further sentencing the appellants and hence, appeal may be disposed of by sentencing the appellants to the period already undergone by them. 13. Considering the averments made in the affidavit 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. 14. The appeal is accordingly partly allowed. 14. The appeal is accordingly partly allowed. While confirming the conviction, the sentence imposed on the appellants-original accused is ordered to be reduced to the period already undergone. They are reported to be on bail and hence, their bail bond shall stand cancelled. The impugned judgment and order dated 8.4.2002 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 74 of 2001 (Old No. 19 of 1998) is accordingly modified to the aforesaid extent. Remaining part of the impugned judgment including fine is unaltered. Record and proceedings are ordered to be sent back to the court below forthwith. 15. As this judgment has been delivered looking to the peculiar facts and circumstances of the case, this may not be treated as the precedent.