DILIPSINH NATHUSINH BIHOLA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant has filed the present appeal against the judgment and order dated 30.9.2009 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) in Sessions Case No.24 of 2006, whereby the learned Sessions Judge convicted the appellant for the offence punishable under Sections 306 and 498(A) of the IPC.

(2.) Mr Yatin Soni, learned advocate for the applicant submitted that by order dated 18.12.2009, the office was directed by the Court to fix the main matter on the final hearing board as soon as the paper book is ready and therefore, the appellant did not press the application for bail and it was disposed of as not pressed. It is submitted that during the interregnum period, the matter is settled between the parties and the complainant's two sons Vijaysinh Setansinh Padhiar and Jagatsinh alias Jagdishbhai Setansinh Padhiar have filed the affidavits in support of the present appellant to the effect that they have no objection if the substantive sentence of the appellant is reduced to the extent of the period which has already been undergone by the appellant since his arrest uptill now and they are also not interested in payment of compensation. In view of the aforesaid facts and circumstances, the learned advocate for the appellant submitted that he does not challenge the order of conviction imposed by the learned Sessions Judge, but in view of the settlement arrived at between the parties and the detailed affidavits filed by two sons of the complainant, the sentence which the appellant has undergone till today be imposed on him instead of 7 years' R.I. as imposed by the learned Judge.

(3.) The learned advocate for the appellant has placed reliance on the judgment rendered by the Apex Court in the case of Ishwar Singh Vs. State of M.P., AIR 2009 SC 675 in support of the submission that even in the case of non-compoundable offence when the parties arrived at a compromise, the offence cannot be compounded. However, compromise can be considered while awarding sentence. In the case before the Apex Court, the accused was convicted for the offence punishable under Section 307. He was young and first offender and the incident was over about 15 years old. The compromise was reached between the parties during pendency of the appeal. The accused had suffered part of the sentence. However, in the facts and circumstances of the case, the sentence was reduced to period which the accused had already undergone. Learned advocate for the applicant submitted that in view of the aforesaid judgment, the sentence which has already undergone by the appellant be imposed on him instead of 7 years' R.I. as imposed by the learned Sessions Judge while convicting him for the offence punishable under Sections 306 and 498(A) of the IPC.