Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 930 (JHR)

Ashok Sai v. State Of Jharkhand

2019-04-25

RAJESH SHANKAR

body2019
JUDGMENT Rajesh Shankar, J. - The present appeal has been preferred against the judgment of conviction dated 19.07.2017 and order of sentence dated 21.07.2017 passed by the learned Sessions Judge, Simdega in Sessions Trial No. 139 of 2012, whereby the appellant has been convicted under Sections 342, 307 and 498(A) of I.P.C. and sentenced to undergo R.I. for a period of one year under Section 342 of I.P.C., R.I. for a period of five years with fine of Rs.2,000/- under Section 307 of I.P.C. and R.I. for a period of two years with fine of Rs.2,000/- under Section 498(A) of I.P.C. and in default of payment of fine, to undergo further S.I of two months under each Section. However, all sentences have been ordered to run concurrently. 2. The case of the prosecution on the basis of the written report of the informant/respondent no.2-Smt. Sarita Paikra filed on 08.03.2012 is that the appellant performed court marriage with her on 27.08.2010 having marriage certificate no. 21/2010. After few days of marriage, the appellant and her in-laws started torturing her for demand of dowry of Rs.3,00,000/- and on non-fulfillment of the same, she was ousted from her matrimonial home. The informant lodged a complaint in the court of the Chief Judicial Magistrate, Simdega being Complaint Case no. 54 of 2011 on 21.06.2011 and the matter was settled before the District Judge in the month of September, 2011 as the appellant agreed to take her back to the matrimonial home. However, he took her on motorcycle and on way, he got her down and fled away. On 08.03.2012, she came to know that the appellant was going to solemnize marriage with another lady and as such she came to her matrimonial home but she was not allowed to enter the house and the demand of dowry was again made from her by the appellant and the father-in-law. It has further been alleged that the appellant and her father-in-law caught her hair and thrashed her on the ground, then the appellant started pressing her neck with an intention to kill and also assaulted her with stone as a result of which blood started oozing from her head. In the meantime when she raised alarm, the nearby people i.e., Anant Sai and Rambrij Sai came there and rescued her from further assault. 3. On the basis of the written report of the respondent no. In the meantime when she raised alarm, the nearby people i.e., Anant Sai and Rambrij Sai came there and rescued her from further assault. 3. On the basis of the written report of the respondent no. 2, an FIR being Kurdeg P.S Case No. 12 of 2012 was registered against the appellant and his father. After investigation, the police submitted the chargesheet under Sections 342/307/498A of IPC and section 3/4 of the Dowry Prohibition Act. Thereafter charge was framed against the appellant and his father under Sections 342/307/498A of the IPC and Section 3/4 of Dowry Prohibition Act and were tried accordingly. 4. Altogether ten witnesses were examined by the prosecution and two witnesses were examined by the defence and finally the trial court passed the judgment of conviction and order of sentence against the present appellant and his father as stated above. During the pendency of the present appeal, the father of the appellant namely Sudhram Sai died and vide order dated 28.02.2019, his name was ordered to be deleted from the cause title of the present appeal. 5. At the outset, the learned counsel for the appellant submits that I.A No. 1255 of 2019 has been filed by the informant and the appellant showing amicable settlement between them and presently they are living together in the matrimonial home. It is accordingly prayed that in view of the subsequent development in the matter, the parties may be allowed to compound the case and the present appeal may be disposed of in view of the said compromise. 6. Thus, the question before this court is as to whether the compromise arrived at by the parties can be accepted in the present appeal so as to acquit the appellant? 7. In the case of Manohar Singh v. State of M.P. , (2014) 13 SCC 75 , the Hon''ble Supreme Court has held as under:- "8. In the instant case, the appellant is convicted under Section 498-A IPC and sentenced to undergo six months'' imprisonment. He is convicted under Section 4 of the Dowry Act and sentenced to undergo six months'' imprisonment. Substantive sentences are to run concurrently. Even though the appellant and the respondent 2 wife have arrived at a compromise, the order of conviction cannot be quashed on that ground because the offences involved are non-compoundable. He is convicted under Section 4 of the Dowry Act and sentenced to undergo six months'' imprisonment. Substantive sentences are to run concurrently. Even though the appellant and the respondent 2 wife have arrived at a compromise, the order of conviction cannot be quashed on that ground because the offences involved are non-compoundable. However, in such a situation if the court feels that the parties have a real desire to bury the hatchet in the interest of peace, it can reduce the sentence of the accused to the sentence already undergone. Section 498-A IPC does not prescribe any minimum punishment. Section 4 of the Dowry Act prescribes minimum punishment of six months but proviso thereto states that the court may, for adequate or special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may be less than six months. Therefore, sentence of the appellant can be reduced to sentence already undergone by him. 9. Now the question is whether a case for reduction of sentence is made out particularly when the appellant has undergone only seven days'' sentence out of six months'' sentence imposed on him. We see no reason why in this case we should not reduce the appellant''s sentence to sentence already undergone by him. There can be no doubt about the genuine nature of compromise between the appellant and Respondent 2 wife. The appellant has offered to pay a sum of Rs 2,50,000 to Respondent 2 wife as compensation. A demand draft drawn in the name of Respondent 2 is brought to the Court. As directed by us even litigation costs of Rs 25,000 have been deposited by the appellant in the Court. Respondent 2 wife has appeared in this Court on more than one occasion and requested this Court to take compromise into consideration and pass appropriate orders. The learned counsel for the parties have requested us to take a kind view of the matter. The affidavit filed by the State of Madhya Pradesh opposing the prayer of the parties does not impress us. 10. We must also note that the trial court had acquitted the appellant. Though the Sessions Court reversed the order and convicted the appellant for two years, the High Court reduced the sentence to six months. The appellant and Respondent 2 were married in 2007. About seven years have gone by. 10. We must also note that the trial court had acquitted the appellant. Though the Sessions Court reversed the order and convicted the appellant for two years, the High Court reduced the sentence to six months. The appellant and Respondent 2 were married in 2007. About seven years have gone by. Considering all these circumstances, in the interest of peace and amity, we are of the opinion that the appellant''s sentence must be reduced to the sentence already undergone by him. 11. In the circumstances, the appeal is partly allowed. The conviction of the appellant under Section 498-A IPC and under Section 4 of the Dowry Act is maintained but the sentence awarded to the appellant is reduced to the sentence already undergone by him, subject to the condition that the appellant pays a sum of Rs 2,50,000 (Rupees two lakh fifty thousand only) to Respondent 2 wife as compensation. The impugned order stands modified to the above extent. We must note that a demand draft in the sum of Rs 2,50,000 drawn in the name of Respondent 2 Reena has been handed over to her counsel by the learned counsel for the appellant on 18-7-2014. In view of this, bail bond of the appellant, if any, stands discharged." 8. It would thus emerge that the order of conviction cannot be set aside at the appellate stage either in compoundable or non-compoundable offences. However, on the fact of any particular case, if it appears to the court that the parties have a real desire to bury the hatchet, it can reduce the sentence of the convict to the sentence already undergone in the interest of peace. Thus, at this stage the appellant cannot be acquitted merely due to the fact that the case has been compromised by the informant and the appellant. 9. Now, the question is that as to whether it is a fit case to reduce the sentence already undergone by the appellant. The LCR reflects that the appellant has served the sentence for about six months. In the present case, the maximum punishment awarded to the appellant is for five years under section 307 of IPC. 10. In the case of Ishwar Singh v. State of Madhya Pradesh , (2008) 15 SCC 667 , the appellant of that case was convicted and sentenced under Section 307 of the Indian Penal Code. In the present case, the maximum punishment awarded to the appellant is for five years under section 307 of IPC. 10. In the case of Ishwar Singh v. State of Madhya Pradesh , (2008) 15 SCC 667 , the appellant of that case was convicted and sentenced under Section 307 of the Indian Penal Code. The High Court dismissed the appeal affirming the judgment of conviction. The Hon''ble Supreme Court held that though it cannot be gainsaid that an offence punishable under Section 307 of the Indian Penal Code is not a compoundable offence, yet while dealing with such matters, the Court may take into account the relevant and important consideration regarding compromise between the parties for the purpose of reduction of sentence. Finally, at para 15 of the said judgment, it has been held as under:- "15. 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 was not released on bail. Considering the totality of facts and circumstances, in our opinion, the ends of justice would be met if the sentence of imprisonment awarded to the appellant (Accused 1) is reduced to the period already undergone." 11. In the instant case also, the appellant and the informant are the husband and wife and as per the affidavit filed by them, they have compromised the matter and are presently leading happy conjugal life. On perusal of the LCR, it appears that the appellant has remained in judicial custody for about six months. At this stage, if the appellant is sent to the judicial custody for serving the remaining period of sentence, there might be a further possibility of breakdown of marriage between the informant and the appellant and in that situation the informant will also have to suffer. At this stage, if the appellant is sent to the judicial custody for serving the remaining period of sentence, there might be a further possibility of breakdown of marriage between the informant and the appellant and in that situation the informant will also have to suffer. Thus, in the ends of justice and keeping in view the circumstances of the case in totality, the sentence awarded to the appellant is modified to the period already undergone by him. 12. In view of the aforesaid factual and legal position, the conviction of the accused as awarded by the trial court is maintained. However, the sentence awarded to the appellant is reduced to the sentence already undergone by him. Accordingly, bail bond of the appellant, if any, stands discharged. 13. The present appeal is partly allowed on the point of sentence. 14. I.A. No. 1255 of 2019 also stands disposed of.