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2016 DIGILAW 1948 (GUJ)

Shakraji Gabaji Thakore v. State of Gujarat

2016-09-06

G.B.SHAH

body2016
JUDGMENT : G.B SHAH, J. As common facts and law are involved in both these appeals which arise out of cross cases, they are being decided by this common judgment. 2. Criminal Appeal No. 31 of 2005 challenges judgment and order dated 29.12.2004 passed by the learned Additional Sessions Judge, 7th Fast Track Court, Mehsana, in Sessions Case No. 224 of 2003 whereby each of the original accused was convicted and sentenced to undergo RI for two years for the offence punishable under section 147 of the Indian Penal Code (hereinafter referred to as “IPC” for short), RI for three years for the offence punishable under section 148 of IPC and SI for one year with fine of Rs. 250/- each, in default, to suffer further SI for ten days (for the offence punishable under section 323 read with section 149 of IPC. All the sentences were ordered to run concurrently. The accused were given benefit of set off for the period already undergone in jail. 3. Criminal Appeal No. 32 of 2005, which arises out of cross case, challenges the judgment and order dated 29.12.2004 passed by the learned Additional Sessions Judge, 7th Fast Track Court, Mehsana, in Sessions Case No. 111 of 2002 whereby each of the original accused was convicted and sentenced to undergo imprisonment for one year for the offence punishable under section 147 of IPC, imprisonment for one year for the offence punishable under section 148 of IPC, SI for one year with fine of Rs. 100/- each, in default, to suffer further SI for five days for the offence punishable under section 323 read with section 149 of IPC, SI for two years with fine of Rs. 100/- each, in default, to suffer further SI for five days for the offence punishable under section 324 read with section 149 of IPC, RI for four years with fine of Rs. 200/- each, in default, to suffer further SI for ten days for the offence punishable under section 325 read with section 149 of IPC, SI for one month for the offence punishable under section 336 read with section 149 of IPC, SI for one month for the offence punishable under section 337 read with section 149 of IPC and RI for five years with fine of Rs. 500/-, in default, to suffer further SI for fifteen days for the offence punishable under section 307 read with section 149 of IPC. All the sentences were ordered to run concurrently. The accused were given benefit of set off for the period already undergone in jail. 4. Heard learned advocates, Ms. Kinjal R. Patel for Ms. Subhadra G. Patel for the appellants-original accused in Criminal Appeal No. 31 of 2005, Mr. Yogendra Thakore and Mr. Pravin Panchal for Mr. Prakash Jani, for the appellants-original accused in Criminal Appeal No. 32 of 2005 and learned Addl. Public Prosecutor, Mr. K.L Pandya for the respondent-State in both the appeals. 5. Before effective hearing, it is jointly submitted by the learned advocates appearing for the appellants-original accused in both the appeals that these are cross cases and the matters are settled and compromise has been arrived at between the parties and an affidavit affirmed by original accused No. 1-Thakore Babuji Jalaji in Criminal Appeal No. 32 of 2005 is produced, 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 the period they have already undergone in jail. 6. Learned advocate, Mr. Yogendra Thakore, for the accused in Criminal Appeal No. 32 of 2005 has stated at the bar that original accused No. 2 in Criminal Appeal No. 32 of 2005 has passed away. In view thereof, Criminal Appeal No. 32 of 2005 stands abated qua original accused No. 2. Xerox copy of the death certificate of accused No. 2 is produced. Same is ordered to be taken on record. 7. This Court has gone through the impugned judgments and orders as also the affidavit filed in Criminal Appeal No. 32 of 2005. Both the complainants of cross cases are present in Court. This Court has ascertained the wish from both the complainants, who are present in Court, and they have stated before the Court that they have arrived at a compromise and therefore, seek to compound the offence and requested that appeals may be allowed and the accused may be sentenced to the period already undergone by them. 8. This Court has ascertained the wish from both the complainants, who are present in Court, and they have stated before the Court that they have arrived at a compromise and therefore, seek to compound the offence and requested that appeals may be allowed and the accused may be sentenced to the period already undergone by them. 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 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. 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. 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. 12. In the background of the aforesaid decisions of the Hon'ble Supreme Court, this Court has gone through the affidavit filed in Criminal Appeal No. 32 of 2005 and has considered the wish of the complainants, who are present in the Court. It appears that incident in question took place before 15 years. Both the parties are staying in the same Village and they are relatives. 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. 13. Considering the averments made in the affidavit and also considering the facts that matter is settled between the parties 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, these appeals are 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. Both the appeals are accordingly partly allowed. Criminal Appeal No. 32 of 2005 qua original accused No. 2 stands abated. While confirming the conviction, the sentence imposed on the appellants-original accused is ordered to be reduced to the period already undergone. The appellants-accused are reported to be on bail and hence, their bail bond shall stand cancelled. The impugned judgments and orders dated 29.12.2004 passed by the learned Additional Sessions Judge, 7th Fast Track Court, Mehsana, in Sessions Case No. 224 of 2003 and Sessions Case No. 111 of 2002 respectively are accordingly modified to the aforesaid extent. Remaining part of the impugned judgments 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.