4 Whether This Case Involves A ... vs State Of Gujarat

The present Criminal Revision Application is directed against judgment and order dated 23.08.2002 passed by learned Additional Sessions Judge, Veraval, in Criminal Appeal No. 35 of 2001 which was filed by five appellants­original accused.

1.1 The applicants in this Revision Application are Page 1 of 7 R/CR.RA/442/2002 JUDGMENT original accused Nos. 3 and 4 who came to be convicted and sentenced as per the impugned order. Rest of the accused were released on probation for their good conduct under the Probation of Offenders Act, 1958, by the Sessions Court.

2. Learned Assistant Sessions Judge, Amreli, convicted all the accused persons by his judgment and order dated 16.05.1988 for the offences punishable under Sections 147, 148, 307 read with Section 149 and for the offences under Sections 323, 325 read with Section 149 of the Indian Penal Code, 1860. The conviction and sentence recorded by the Trial Court came to be modified by the Lower Appellate Court. Applicant No.1­accused No.3, as well as applicant No.2­accused No.4 came to be convicted for the offences under Sections 147, 148, 307, 325, IPC read with Section 149, IPC, and came to be sentenced to undergo rigorous imprisonment for 1 year and to pay fine of Rs.500/­ and in default of payment of fine, to undergo simple imprisonment for further 3(three) months.

3. Today, when the matter came up for consideration, learned advocate Mr. H. R. Prajapati for the applicants stated that the parties have buried their disputes and a settlement is arrived at. A xerox copy of settlement dated 13.12.2002 signed/thumb impressed/duly identified, as well as a copy of letter of pardon given by the applicants­accused, were produced on record. Learned advocate, today in course of submission, produced on record original copies of Page 2 of 7 R/CR.RA/442/2002 JUDGMENT the said settlement and pardon letter which are taken on record.

3.1 In the aforesaid settlement, the parties have stated that they with the intervention of elder persons, have put an end to their disputes. They have agreed not to commit any act which would lead to breach of peace amongst them. They have stated that in future, they would not act in any way resulting into breach of peace. The accused persons have given their pardon in writing and have assured that they will act as law abiding citizen and maintain peace.

4. Learned advocate for the applicants submitted that in view of the fact that the parties have settled the disputes and that the complainant has no grievance against the applicants­accused and the applicants­ accused have also pretended by tendering apology, appropriate order requires to be passed showing leniency towards the applicants. He submitted that the applicants have undergone the jail period which may be treated as sufficient in the facts and circumstances of the case. He relied on the decision of the Supreme Court in Ishwar Singh vs. State of Madhya Pradesh [2009(2) G.L.H. 22].

5. As far as the impugned judgment and order convicting the applicants is concerned, having carefully gone through the judgments of the courts below, the judgment and order of the Lower Appellate Court was based on proper and reasonable evidence and did not warrant any interference in the revisional jurisdiction of this Court under Section 397 of the Page 3 of 7 R/CR.RA/442/2002 JUDGMENT Code of Criminal Procedure, 1973. However, there is a substance in the prayer made by learned advocate for the applicants on the basis of compromise arrived at between the parties. It is a relevant fact on the basis of which the question of quantum of sentence would be addressed.

5.1 It emerges from the record that the applicants­ accused were initially convicted by judgment and order dated 16.05.1988 of the Trial Court. They were taken behind the bars pursuant to the impugned judgment and order passed by the Sessions Court. It further appears from the record that by virtue of order dated 21.01.2003, they were granted bail and were enlarged on condition of furnishing bond and security. It appears that as the applicants could not comply with the said conditions, they were not released. It was further seen from the record that Criminal Misc. Application No. 551 of 2003 was filed by the applicants­accused, in which this Court passed order dated 12.03.2003 and suspended part of the order which imposed the fine upon the applicants. Thus, from the date of impugned judgment till the aforesaid order dated 12.03.2003, the applicants have remained in jail for period more than 7(seven) months.

5.2 The offences for which the applicants are convicted, are not compoundable offences. Therefore. it is not possible to compound them. In Ishwar Singh(supra),this Court dealt with similar situation. The observations made by the Supreme Court were thus, Page 4 of 7 R/CR.RA/442/2002 JUDGMENT "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 the Code. At the same time, however, while dealing with such matters, this Court may take into account a relevant and important consideration between the parties for the purpose of reduction of sentence.

14. In Jetha Ram v. State of Rajasthan, (2006) 9 SCC 255, Murugesan & Ors. v. 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 appellant­accused to already undergone, though the offences were not compoundable. But it was also stated that in Mahesh Chand v. State of Rajasthan, AIR 1988 SC 211, such offence was ordered to be compounded.

15. In our considered opinion, it would not be appropriate to order compounding of an 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 Page 5 of 7 R/CR.RA/442/2002 JUDGMENT indeed a relevant circumstance which, the Court may keep in mind.

16. In the instance 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 undergone."

6. Going back to the facts of the instant case, the incident took place on 31.08.1984. More that three decades have passed. It was stated that the parties were neighbours. Looking to the manner of the incident, the parties were at the peak of their anger and out of heat of passion, the accused committed the crime. With the passage of time, the circumstances have changed. The parties have grown up in their age. The parties have grown up also in their understanding and wisdom as is reflected from the event of settlement reached by them as aforesaid and apology Page 6 of 7 R/CR.RA/442/2002 JUDGMENT expressed by the accused persons. Considering these circumstances cumulatively, the interest of justice would be served if the sentence awarded to both the applicants is reduced for each of them to the period which they have already undergone in the jail. The amount of fine imposed on each of the applicants, if not paid, shall be required to be paid by them.

7. For the foregoing reasons, the present Appeal is partly allowed. The conviction recorded by the Lower Appellate Court is maintained, however the order of payment of fine is not disturbed. As far as the sentence of imprisonment is concerned, the same is reduced to the period already undergone. In other words, the applicants shall not be required to suffer imprisonment any more and shall not be required to be sent behind the bars despite conviction is maintained.

8. The payment of fine, if not paid, shall be paid by the applicants within 6(six) weeks from today.

9. The Revision Application is disposed of in the aforesaid terms. Rule is made absolute to the aforesaid extent and in the aforesaid terms.

(N.V.ANJARIA, J.) chandrashekhar Page 7 of 7