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2023 DIGILAW 669 (GUJ)

Vinodbhai Javansinh Davar v. State of Gujarat

2023-04-21

HEMANT M.PRACHCHHAK

body2023
JUDGMENT : 1. The present appeal is preferred by the appellant – accused under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 29.11.2021 passed by the learned 11th Sessions Judge, (Special Judge, Atrocity Cases), Vadodara in Sessions Case No.157 of 2019, whereby, the learned Trial Judge has convicted the appellant under Section 307 of the Indian Penal Code (for short “the IPC”) and directed him to undergo sentence of simple imprisonment of 10 years with fine of Rs.5,000/-, and in default of payment of fine, to undergo further simple imprisonment for a period of six months, and fine of Rs.25,000/- as per Section 357 of the Criminal Procedure Code, and in default of payment of fine, to undergo further simple imprisonment for a period of one year. So far as the offence under Section 135 of the G.P. Act is concerned, the Court has disbelieved the case and acquitted the present accused for the said offence. 2. The case of the prosecution briefly is that, the FIR being C.R.No.-14 of 2019 came to be registered before PSI City Police Station, Vadodara, wherein it was alleged that on 10.03.2019 at around 09.57 a.m., the complainant received a call from her mother informing the complainant that when she was on the way to her workplace at Hathikhana Market, the present appellant allegedly attacked behind her with a sharp weapon due to which she was inured on her head and left hand and hence, asked the complainant to rush to that place. Therefore, the complainant reached Hathikhana Market with her sister where she saw blood stains in front of shop no.E/28 and her mother was moved to hospital in 108 ambulance. The accused is of suspicious in nature and he had previously beaten complainant’s mother many times for which a complaint was registered at Varasiya Police Station and because of his suspicious nature, he had attempted to kill complainant’s mother with sharp knife. Therefore, the FIR was registered before PSI City Police Station, Vadodara. 2.1 The FIR was investigated by the Investigating Agency and after sufficient materials was found against the accused, the Investigating Officer has submitted the charge-sheet before the concerned Judicial Magistrate. Therefore, the FIR was registered before PSI City Police Station, Vadodara. 2.1 The FIR was investigated by the Investigating Agency and after sufficient materials was found against the accused, the Investigating Officer has submitted the charge-sheet before the concerned Judicial Magistrate. As the case was exclusively triable by the Court of Sessions, the said case was committed to the Sessions Court, Vadodara under Section 209 of the Code of Criminal Procedure, 1973, which was registered as Sessions Case No.157 of 2019. 2.2 The Court framed the charge against the accused and after leading the evidence by the prosecution, the Court found the accused guilty of the offence punishable under Section 307 of the IPC and directed him to undergo sentence of simple imprisonment of 10 years with fine of Rs.5,000/-, and in default of payment of fine, to undergo further simple imprisonment for a period of six months, and fine of Rs.25,000/- as per Section 357 of the Criminal Procedure Code, and in default of payment of fine, to undergo further simple imprisonment for a period of one year vide impugned judgment and order of conviction. 3. Being aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellant – accused has preferred the present appeal alongwith Criminal Misc. Application No.1 of 2022 for suspension of sentence. The appeal came to be admitted by the Co-ordinate Bench of this Court vide order dated 13.09.2022. 4. As the dispute is between husband and wife, and now the wife has entered into settlement / compromise at the instance of the elders of the family & society with the husband, the wife has tendered an affidavit before this Court, wherein, it is mentioned that they have inter se settled the dispute and now there is no grudge against the appellant husband and considering the ill health of the appellant who is aged 64 years, the wife though it fit to file the present affidavit and shown her willingness that she has no objection if the impugned judgment and order of conviction passed by the trial Court is quashed and set aside and the Court can consider the period which the appellant has undergone during the pendency of the trial and thereafter, till the date of admission of the appeal. 5. Learned counsel appearing for the appellant accused has tendered the affidavit of the victim – Davar Ramilaben Vinodbhai, dated 21.04.2023. 5. Learned counsel appearing for the appellant accused has tendered the affidavit of the victim – Davar Ramilaben Vinodbhai, dated 21.04.2023. The same is taken on record. 6. Today, the victim Ramilaben – wife of the appellant accused is present before this Court. On asking the facts, she has voluntarily stated that she has no any dispute with the appellant husband and therefore, she has voluntarily filed this affidavit inter alia stating that if this Court exercise powers and consider the submissions made on behalf of the appellant to alter the conviction from 10 years to the actual period undergone by the appellant accused may be treated as the period of conviction and sentence, then the interest of justice would be sub-served. Therefore, the Court may kindly exercise the appellate powers under appropriate case and pass appropriate orders. 7. Heard learned counsel Mr.Manan Patel appearing for the appellant accused, learned APP Mr.H.K. Patel for the respondent – State of Gujarat and learned counsel Mr.Chirag M. Shrimali appearing for the complainant. 8. Section 307 of the IPC is a non-compoundable offence. No permission can be granted to record the compromise between the parties. Section 307 of the IPC reads as under : “307. Attempt to murder. - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinabove mentioned. Attempts by life-convicts. - [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]” 9. It is worthwhile to refer to the decisions of the Hon’ble Supreme Court in the case of Manjit Singh Vs. State of Punjab reported in (2020) 18 SCC 777 and in the case of Sy. Azhar Sy. Kalandar Vs. State of Maharashtra reported in AIR 2021 SC 4298 . 10. It is worthwhile to refer to the decisions of the Hon’ble Supreme Court in the case of Manjit Singh Vs. State of Punjab reported in (2020) 18 SCC 777 and in the case of Sy. Azhar Sy. Kalandar Vs. State of Maharashtra reported in AIR 2021 SC 4298 . 10. Considering the facts of the present case and the averments made in the appeal and the material placed on record, it appears that the parties have amicably settled their dispute during the pendency of the appeal. As the offence is under Section 307 of the IPC, the Court cannot grant any permission to record the compromise arrived at between the parties. Now, considering the fact that the incident took place on 10.03.2019, so almost 4 years have been passed and there is no enmity or dispute between the victim and the appellant. It emerges from the record that the appellant is said to have been served out the sentence of 4 years in jail. Taking note of the settlement arrived at between the parties and considering the relationship of the parties and also sentence undergone by the appellant, sentence of imprisonment imposed upon the appellant under Section 307 of the IPC is reduced from ten years to the period already undergone by him. 11. In the case of Manjit Singh (supra), the Hon’ble Supreme Court has held and observed in paragraphs No.13 and 14 as under:- “5. Section 307 I.P.C. is a non-compoundable offence. No permission can be granted to record the compromise between the parties. In Ishwar Singh v. State of Madhya Pradesh, (2008) 15 SCC 667 , the Supreme Court of India has held that in a non-compoundable offence the compromise entered into between the parties is indeed a relevant circumstance which the Court may keep in mind for considering the quantum of sentence. In Paras (13) and (14) of the judgment in Ishwar Singh (supra) this Court has held as under: "13. 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., (2008) 15 SCC 671, 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. But it was also stated that in Mahesh Chand v. State of Rajasthan, 1990 Supp. SCC 681 such offence was ordered to be compounded. 14. 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." As noted earlier, in the present case the appellant accused, Manjit Singh, has been sentenced to undergo imprisonment for five years. The appellant is said to have served seventeen months of imprisonment. Taking note of the compromise entered into between the parties and considering the relationship of the parties and the facts and circumstances of the case and also the sentence undergone by the appellant accused, the sentence of imprisonment imposed upon the appellant under Sections 307 and 324 I.P.C. is reduced from five years/two years to the period already undergone by him. The appellant is ordered to be released forthwith unless his presence is required in any other case. In view of the compromise entered into between the parties, the fine amount of Rs.50,000/- imposed upon the appellant is set aside. If the said fine amount has already been paid, the same shall be refunded to the appellant- Manjit Singh.” 12. In the case of Sy. Azhar S. Kalandar (supra), the Hon’ble Supreme Court has held and observed in paragraphs No.11 to 14 as under:- “11. In almost the same circumstances which have been noticed by us, a three Judge Bench of this Court in a recent judgment in Murali Vs. State represented by Inspector of Police, 2021(1) SCC 726 where the parties decided to forgive their past and live amicably, this Court has come to their rescue by interfering in the quantum of sentence which obviously is not compoundable under Section 320 Cr.P.C. but has interfered since there is no minimum sentence prescribed. This Court in Murali(supra), has taken note of the judgment of this Court in Ram Pujan and Others Vs. State of U.P., 1973(2) SCC 456 which was further followed by this Court in Ishwar Singh Vs. This Court in Murali(supra), has taken note of the judgment of this Court in Ram Pujan and Others Vs. State of U.P., 1973(2) SCC 456 which was further followed by this Court in Ishwar Singh Vs. State of M.P. and the later decisions as referred to in paras 11 and 12 of the judgment has taken note of the compromise between the parties to reduce the sentence of the convicts even in serious non-compoundable offences. The relevant paras are as follows: "11. In later decisions including in Ram Lal v. State of J&K (1999) 2 SCC 213 ; Bankat v. State of Maharashtra (2005) 1 SCC 343 ; Mohar Singh v. State of Rajasthan (2015) 11 SCC 226 ; Nanda Gopalan v. State of Kerala (2015) 11 SCC 137 ; Shankar v. State of Maharashtra (2019) 5 SCC 166 , this Court has taken note of the compromise between parties to reduce the sentence of the convicts even in serious non-compoundable offences. 12. Given this position of law and the peculiar circumstances arising out of subsequent events, we are of the considered opinion that it is a fit case to take a sympathetic view and reconsider the quantum of sentences awarded to the appellants. We say so because: first, the parties to the dispute have mutually buried their hatchet. The separate affidavit of the victim inspires confidence that the apology has voluntarily been accepted given the efflux of time and owing to the maturity brought about by age. There is no question of the settlement being as a result of any coercion or inducement. Considering that the parties are on friendly terms now and they inhabit the same society, this is a fit case for reduction of sentence." 12. Taking into consideration the facts of the instant case and the circumstances arising out of the subsequent events, in our opinion, it is a fit case to take a sympathetic view and reconsider the quantum of sentence awarded to the appellant. We have recorded our satisfaction, based on the reasons, that the parties to the dispute have mutually settled their disputes and buried their past. 13. The joint affidavit inspires confidence that the apology as tendered by the appellant has voluntarily been accepted given the efflux of time and is not a result of any coercion or inducement. We have recorded our satisfaction, based on the reasons, that the parties to the dispute have mutually settled their disputes and buried their past. 13. The joint affidavit inspires confidence that the apology as tendered by the appellant has voluntarily been accepted given the efflux of time and is not a result of any coercion or inducement. Considering that they are residing in the same village and are peacefully residing after the uncalled for incident has taken place, in our view, this appears to be a fit case for reduction of sentence. 14. Considering the overall facts on record and other mitigating factors and circumstances in which a crime has been committed including the nature of injury, period during which he remained under medical treatment, mental agony which the victim suffered and also the compromise entered into between the parties, while upholding conviction under Section 307 IPC, we deem it appropriate to reduce the quantum of sentence imposed on the appellant to five years rigorous imprisonment and to pay a fine of Rs. 10,000/- and in default of payment of fine shall suffer further three months' rigorous imprisonment. Ordered accordingly.” 13. Considering the submissions canvassed by the learned advocates on both the sides and the material placed on record and the aforesaid decisions of the Hon’ble Supreme Court, the appeal deserves to be allowed in part and the impugned judgment and order of conviction deserves to be modified to the extent. 14. In this case, more than 4 years have elapsed and the parties have settled in life. Therefore, maintaining the judgment, the interest of justice will be sub-served if the punishment of ten years is substituted by the period already undergone by the appellant. This approach is adopted in view of peculiar facts of the case and also considering long lapse of time. 15. The present appeal is partly allowed. The impugned judgment and order of conviction dated 29.11.2021 passed by the learned 11th Sessions Judge, (Special Judge, Atrocity Cases), Vadodara in Sessions Case No.157 of 2019 is modified to the extent that the simple imprisonment imposed upon the appellant for offence under Section 307 of the IPC shall be reduced to the period already undergone by the appellant. The conviction imposed upon the appellant – accused is altered and modified to the extent as ordered against him for the offence under Sections 307 of the Indian Penal Code. The conviction imposed upon the appellant – accused is altered and modified to the extent as ordered against him for the offence under Sections 307 of the Indian Penal Code. The appellant is ordered to be set at liberty forthwith, if not required in connection with any other case. The appellant shall pay the amount of fine imposed by the learned Trial Court within a period of one week from the date of his actual release. Record and Proceedings to be sent back to the concerned Trial Court forthwith. Registry is directed to communicate this order to the concerned Jail Authority forthwith. ORDER IN CRIMINAL MISC. APPLICATION In view of the disposal of the main appeal, the Criminal Misc. Application (For Suspension of Sentence) does not survive and stands disposed of accordingly.