Criminal Appeal No.336 of 1996,Bombay No.5 of 1995

12th January, 2006

Petitioner Counsel: Shri. C. R. DESHPANDE
Respondent Counsel: Smt. B. R. KHEKALE

Cases Cited:
Surendra Nath Mohanty Vs. State of Orissa, 1999 ALL MR (Cri) 1267 (S.C.)=AIR 1999 SC 2181 [Para 10]
Jalaluddin Vs. State of Uttar Pradesh, 2002 ALL MR (Cri) 1609 (S.C.) [Para 13]

JUDGMENT

JUDGMENT :- Heard Shri. C. R. Deshpande, learned Advocate for the appellants and Smt. B. R. Khekale, learned APP for the Respondent. Perused the record.

2. The appellants herein, being aggrieved by the judgment and order dated 30-12-1994, passed by the learned Additional Sessions Judge, Dhule, in Sessions Case No.94 of 1993, whereby they were convicted for the offences under Sections 325, 436, 337, 147, 148 read with section 149 of Indian Penal Code, have preferred this appeal, challenging the said judgment and order of conviction and sentence passed.

3. The incident, which gave rise to the prosecution and the subsequent appeal after the order of conviction and sentence, took place on 19-5-1993, in the morning at residential huts in Gavthan survey number of Village-Pimpripada, a hamlet of Village-Wakwad in Shirpur Taluka of Dhule District. The main grievance of the appellants was that, because of the hutments of the victims, interest of the appellants, who are inter-se related, was affected, as they were cultivating that piece of land, where the victims had their huts. Therefore, in an incident that took place in the morning, when the victims refused to remove their huts from that land, the appellants, having gathered there and also formed unlawful assembly with the common object of causing hurt to the inmates of the huts, so also to destroy the huts, had assaulted some of the victims, including complainant Gopal Dalsha Pawara, and one Fattu, with sticks, axe, slings, causing grievous injuries to them and also set on fire complainant's hut during the course of same transaction and also robbed complainant of cash amount of Rs.5,000/-. After the complaint was lodged, offence was registered and on completion of investigation, the appellants came to be charge-sheeted and in due course of time, case was committed to the Court of Sessions, Dhule. The appellants pleaded not guilty to the charge and claimed to be tried.

4. The prosecution examined in all 12 witnesses, including the complainant. The learned Sessions Judge, by his judgment and order, as stated above, convicted the appellants for the offences punishable 436, 325 read with Section 149 of Indian Penal Code, so also under section 147, while accused Nos.2, 3 and 5 were convicted in addition, under Section 148 of Indian Penal Code. All the appellants were sentenced to suffer rigorous imprisonment for five years, on each count under Sections 325, 436 read with section 149, for one month and fine of Rs.500/-, in default, to undergo rigorous imprisonment for one month for offence under Section 147, while no separate sentence was imposed for offence under section 148 of Indian Penal Code. By the same order, learned Sessions Judge acquitted appellants Wanya Surmal Pawara and Laxman @ Laxya Dulba Pawara (original accused Nos.2 and 3 respectively) for offence under Section 394 of Indian Penal Code.

5. After the appeal was admitted by order dated 16-1-1995, appellant No.6 Bhonga Surmal Pawara was reported to be dead and, therefore, by order dated 2-7-1998, appeal came to be abated, so far as it relates to appellant No.6.

6. When the appeal came up for hearing on 24-9-2004, on behalf of appellants, Criminal Application No.1945 of 2004 came to be filed for seeking permission of the court to compound the offence, since the parties had arrived at terms and settled the matter amicably. Along with this application, parties had also filed compromise purshis, cognizance of which is also taken by the court in its order dated 10-9-2004. The court observed that the parties have arrived at a compromise as the offence under Section 325 of IPC is compoundable with permission of the court and that the terms of compromise were not verified from the office. The court further observed that since the appellants are convicted for offence under Section 434, IPC, the matter be placed for final hearing.

7. It is not disputed that the terms of compromise have been verified by the office in pursuance of the order passed by the Court, and as submitted by learned Counsel for the appellants, the victims Gopal Pawara and Fattu, when the terms of compromise were verified by the office, accepted the same and as stated in the purshish, accepted the contents particularly in paragraph 13, wherein they have candidly stated that they have no grudge against the accused, nor the accused have any grudge against the injured persons. The statement has been made at Bar that Shri. R. K. Astekar, Advocate, has identified the victims in the office, at the time of verification of terms of compromise.

8. It is also a matter of record, so also very specifically stated in the terms of compromise, that after filing of the appeal, appellant No.1 (original accused No.1) Guman Kutrya Pawara has died. As such, besides the injured persons, rest of the appellants are also party to this compromise arrived at.

9. Though the appellants have in this appeal challenged the conviction and sentence awarded by the trial Court, Shri. C. R. Deshpande, the learned Counsel appearing for the appellant restricted his submissions, in view of the fact that the parties have come to terms and settled the matter amicably. As the learned Counsel was well aware that the offence under Section 436 is not compoundable, he submitted that since the matter has been amicably settled between the parties and as the parties have been living harmoniously since over 13 years, the sentence awarded in respect of offence under Section 436 of IPC, which is undisputedly a non-compoundable offence, it would be in the interest of justice to reduce the substantive sentence to the period already undergone by the appellants.

10. To substantiate his submissions on this point, learned Counsel Shri. Deshpande has placed reliance on the decision of the Apex Court in the matter of Surendra Nath Mohanty and Anr.-Appellants Vs. State of Orissa-Respondent (AIR 1999 SC 2181) : [1999 ALL MR (Cri) 1267 (S.C.)]. In the reported case, the appellants were convicted for offences under Sections 307, 326, 325, 324 and 323 read with Section 34 of Indian Penal Code, and sentenced to five years rigorous imprisonment and fine of Rs.200/-, in default of payment, were to undergo rigorous imprisonment for one month. The Apex Court, in paragraph 5 of its judgment, observed thus :-

"In our view, submission of the learned counsel for the respondent requires to be accepted. For compounding of the offences punishable under the Indian Penal Code, complete scheme is provided under Section 320 of the Code of Criminal Procedure, 1973. Sub-section (1) of Section 320 provides that the offences mentioned in the table provided thereunder can be compounded by the persons mentioned in Column No.3 of the said table. Further, sub-section (2) provides that, the offences mentioned in the table could be compounded by the victim with the permission of the Court. As against this, sub-section (9) specifically provides that, "no offence shall be compounded except as provided by this Section". In view of the aforesaid legislative mandate, only the offences which are covered by table 1 or 2 as stated above can be compounded and the rest of the offences punishable under India Penal Code could not be compounded."

11. However, the Apex Court in the said case, while accepting the submissions of the learned Counsel for the appellants therein that, as the dispute was amicably settled and the matter was compromised, substantive sentence may be reduced to the period undergone, has observed in paragraph 8 of its judgment :

"We reiterate that the course adopted in Ram Pujan Vs. State of U.P. (AIR 1973 SC 2418 : 1973 Cri.L.J. 1612) and Mahesh Chand Vs. State of Rajasthan (AIR 1988 SC 2111 : 1989 Cri.L.J. 121) (supra) was not in accordance with law. However, considering the fact that parties have settled their dispute outside the Court and the fact that 10 years have elapsed from the date of the incident and the further fact that the appellants have already undergone three months imprisonment as per the sentence imposed on them, we think that ends of justice would be met if the sentence of imprisonment is reduced to the period already undergone besides imposing a fine of Rs.5,000/- on each of the accused under Section 326 read with section 34, IPC. We reduce the sentence as indicated above and direct that in default of payment of fine, the appellant concerned shall undergo simple imprisonment for a further period of three months."

12. In my considered view, having regard to the fact that in the case at hand, when the parties have settled the matter amicably, and as has been stated earlier, parties are living harmoneously and that a period almost of 13 years has elapsed since the date of occurrence, it will be in the interest of justice to reduce the sentence to the period already undergone. In other words, now no purpose would be served in directing the appellants to undergo sentence that has been awarded by the trial court. That is much more so, when the period of almost 13 years has lapsed and the parties have settled the matter amicably. It is only because offence under Section 436, IPC being not compoundable, the court cannot give permission to compound the offence. It is in that sense that it would meet the ends of justice, even if the period of sentence imposed upon the appellants for offence under Section 436, IPC is reduced to the period already undergone.

13. It would be useful to consider the decision of the Apex Court in the matter of Jalaluddin Vs. State of Uttar Pradesh, 2002 ALL MR (Cri) 1609 (S.C.), wherein the Apex Court has reduced the substantive sentence of the appellant therein, to the period already undergone. It was again in the backdrop of the fact that the incident therein had occurred on 24-12-1979 and the complainant and accused therein, who were close relatives of each other, were living amicably.

14. It is not necessary to make multiple reference to the decisions of the Apex Court and of this Court, wherein the same view is reiterated. Suffice it to say that, in a situation, as has been in the present case, the accused persons can be dealt with, by reducing the substantive sentence to the period already undergone, even in case of offences, which are not compoundable but only for the reason that the parties have settled the matter amicably, a long period of more than ten years has elapsed since the occurrence.

15. In the case at hand, since the appellants have paid fine and have already undergone the sentence for some period, I feel that the amount of fine should be paid to the victims or their survivors. With these observations, I pass the following order.

16. Appeal is partly allowed.

Appellants are acquitted, in so far as offences which are compoundable, are concerned, as a consequence of compromise between them and the complainant, in view of provisions contained in Section 320(2) of the Code of Criminal Procedure, 1973.

So far as offences, which are not compoundable, conviction of the appellants is maintained and substantive sentence is reduced to the period already undergone. The amount of fine deposited by the appellants, be paid over to the victims, or their survivors.

Appeal partly allowed.