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2023 DIGILAW 727 (GUJ)

Senma Mangalbhai Motibhai v. State Of Gujarat

2023-05-03

HEMANT M.PRACHCHHAK

body2023
JUDGMENT : 1. The present appeal is preferred by the appellants – original accused Nos.1 and 2 under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 29.07.2019 passed by the learned Sessions Judge, Mehsana in Sessions Case No.115 of 2017, whereby, the learned Trial Judge has convicted the present appellant No.1 for the offence punishable under Section 323 of the Indian Penal Code, 1860 for a period of one year rigorous imprisonment and a fine of Rs.1,000/- and in default of payment of fine, to undergo further simple imprisonment for one month. The learned Trial Judge has convicted the appellant No.2 for the offence punishable under Section 324 of the Indian Penal Code, 1860 for a period of two years rigorous imprisonment and a fine of Rs.2,000/- and in default of payment of fine, to undergo further simple imprisonment for two months. However, the learned Trial Judge was pleased to acquit the appellant No.1 from the offence punishable under Sections 147, 148, 149, 324, 504, 506(2) of the Indian Penal Code. The learned Trial Judge was further pleased to acquit the appellant No.2 from the offence punishable under Sections 147, 148, 149, 323, 504, 506(2) of the Indian Penal Code. The learned Trial Judge was pleased to acquit the original accused Nos.3, 4 and 5 from all the charges levelled against them. 2. The case of the prosecution briefly is that, on 08.06.2017, at about 7 o’clock, the father of the complainant namely Gafurbhai had reached at the residential house of the appellants and had asked the appellant No.1 that he had not received entire amount of sale consideration of land which was sold through him. As a result, it is alleged that the appellant – accused got excited and informed Gafurbhai that amount is already paid to him but Gafurbhai insisted for the outstanding amount and therefore, the appellant No.1 got excited and started using filthy language. Thereafter, the appellant No.1 gave kick and fist blow to Gafurbhai and other accused persons formed unlawful assembly and the appellant No.2 herein inflicted an injury on the head with the aid of stick. Therefore, the criminal complaint came to be registered before Bavlu Police Station being C.R. No.I-38 of 2017. Thereafter, the appellant No.1 gave kick and fist blow to Gafurbhai and other accused persons formed unlawful assembly and the appellant No.2 herein inflicted an injury on the head with the aid of stick. Therefore, the criminal complaint came to be registered before Bavlu Police Station being C.R. No.I-38 of 2017. 2.1 Thereafter, the investigation was carried out and the appellants were arrested and charge sheeted alongwith other co-accused against the aforesaid offences before the Learned Judicial Magistrate First Class, Kadi. Since the cross case (complaint filed by the appellants’ side) was triable by the Court of Sessions, the accused were committed to the Sessions court at Mehsana and on that basis Sessions Case No.115 of 2017 came to be registered and the case was transferred to the Learned Sessions Judge, Mehsana. 2.2 The Court framed the charge against the accused persons and after leading the evidence by the prosecution, the Court found the accused persons guilty of the offence as mentioned above and convicted them vide impugned judgment and order of conviction. 3. Being aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellants – accused have preferred the present appeal alongwith Criminal Misc. Application No.1 of 2019 for suspension of sentence before this Court. The appeal came to be admitted by the Co-ordinate Bench of this Court vide order dated 09.08.2019 and the conviction imposed by the Trial Court came to be suspended vide order dated 09.08.2019 and therefore, the appellants were enlarged on bail during the pendency of the appeal. 4. During the pendency of the appeal, at the instance of the villagers and community people, the parties are said to have settled the matter whereby the complainant has shown his willingness that he 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 appellants have undergone during the pendency of the trial and, thereafter, till the date of admission of the appeal. 5. Learned advocate appearing for the appellants accused has tendered the affidavits filed by the complainant – Senma Hansaben Jagdishbhai and the injured - Senma Gafurbhai Gandabhai dated 17.02.2022. The same is taken on record. 6. Today, the complainant along with injured as well as the appellants accused are remained personally present before the Court. 5. Learned advocate appearing for the appellants accused has tendered the affidavits filed by the complainant – Senma Hansaben Jagdishbhai and the injured - Senma Gafurbhai Gandabhai dated 17.02.2022. The same is taken on record. 6. Today, the complainant along with injured as well as the appellants accused are remained personally present before the Court. After verifying the facts from the concerned parties, the affidavit sworn in by the parties makes it clear that the parties, on the advice of their elders, entered into an amicable settlement and now they have no any grudge against the appellants. The appellants have apologized for their fault and have taken responsibility for their action and have maturely sought forgiveness from the victim. In return, the victim has also voluntarily accepted the apology and has forgive them and has come forward without any reservation to settle the dispute. 7. Heard learned advocate Mr.Yogendra Thakore appearing for the appellants, learned APP Mr.H.K. Patel appearing for the respondent - State of Gujarat and learned advocate Mr.Mohamadzaid I. Saiyed appearing for the original complainant. 8. The offence under Section 323 of the Indian Penal Code is non-compoundable and bailable, while the offence under Section 324 of the IPC is compoundable and non-bailable, however, the Court can grant permission to record the compromise and settle the dispute under Section 320 of the Code of Criminal Procedure, 1973. It emerges from the record that the appellants have been released on bail by the competent trial court pending the trial and have also paid fine as imposed by the Trial Court. 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. 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. 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 the provisions of the IPC, the Court can grant permission to record compromise as Section 324 if non-compoundable, however, with the permission of the Court, the Court can grant permission to settle the dispute under Section 320 of the Cr.P.C. Now, considering the fact that the incident took place 08.06.2017, so almost 6 years have been passed and during these 6 years, neither any untoward incident took place between the parties nor there is any complaint registered against the present appellants. It emerges from the record that even after being released on bail, there is no allegation with regard to breach of peace and tranquility against the appellants and no further offence committed by the appellants. Taking note of the settlement arrived at between the parties and considering the relationship of the parties and also sentence undergone by the appellants, sentence of imprisonment imposed upon the appellants is converted to the period already undergone by them and also to the extent of fine paid by them. 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. 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. 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. 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. 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. 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. 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 the present case, more than 6 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 imposed by the Trial Court is substituted by the period already undergone by the appellants. This approach is adopted in view of peculiar facts of the case and also considering long lapse of time. Therefore, maintaining the judgment, the interest of justice will be sub-served if the punishment imposed by the Trial Court is substituted by the period already undergone by the appellants. This approach is adopted in view of peculiar facts of the case and also considering long lapse of time. The ends of justice would meet if the impugned judgment is suitably modified and the following order is passed. 15. The present appeal is partly allowed. The impugned judgment and order of conviction dated 29.07.2019 passed by the learned Sessions Judge, Mehsana in Sessions Case No.115 of 2017 is modified to the extent that the rigorous imprisonment imposed upon the appellants shall be reduced to the period already undergone by the appellants and the amount of fine is putforth. As the appellants are on bail, they need not surrender to the jail authority. The bail and bail bond stands cancelled. Surety, if any, shall stand discharged. 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.