JAYAPRAKASH Vs. STATE

JUDGEMENT

(1.) THE matter is taken up for hearing, THE learned counsel for THE accused/appellant herein represented that THE case of THE prosecution is that he had assaulted P. W. 2 and caused injury, which resulted in a criminal case under Section 307 IPC against THE accused and THE trial Judge after going through THE evidence both oral and documentary has held that THE charge under Section 307 IPC against THE accused has been proved beyond any reasonable doubt and accordingly convicted THE accused and sentenced to undergo 3 years RI, which necessitated THE accused to prefer this appeal and that subsequent to THE award of punishment by THE trial Court against THE accused both THE accused and THE victim P. W. 2 have become very friendly and P. W. 2 has magnanimously come forward to pardon THE accused. The learned counsel has also filed a joint memorandum of compromise entered into between P. W. 2 and THE accused and also an affidavit filed by THE accused to THE effect that he had entered into a compromise with P. W. 2 and that he was in prison for 25 days prior to conviction.

(2.) THE learned counsel Mr. C. R. Malarvannan appearing for the accused/appellant would further submit that taking into consideration the events which had taken place during the pendency of this appeal this Court may give due consideration for the submissions made by the accused and the sentence may be modified to that of a period already undergone even though the offence is not compoundable. In support of his contention the learned counsel mr. C. R. Malarvannan appearing for the accused/appellant would rely on AIR 1999 sc 895 (Ram Lal and another Vs. State of Jammu and Kashmir), wherein our honourable Apex Court has held that even though the offence is not compoundable the Court taking into consideration the facts and circumstances and the plight of the parties and taking note of the subsequent events which had occurred during the pendency of the appeal, can modify the sentence. In the above said dictum the accused was convicted under Section 326 of the Penal Code and subsequently had entered into a compromise with the victim and a joint memo was filed before the Court. Under such circumstances, the Honourable Apex Court has observed as follows:- "it is apparent that when the decision in Mahesh chand (AIR 1988 SC 2111) (supra) was rendered attention of the learned Judges was not drawn to the aforesaid legal prohibition. Nor was attention of the learned Judges who rendered the decision in Y. Suresh Babu (1987 (2) JT (SC) 361) (supra) drawn. Hence those were decisions rendered per incuriam. We hold that an offence which law declares to be non-compoundable even with the permission of the Court cannot be compounded at all. THE offence under Section 326 IPC is, admittedly, non-compoundable and hence we cannot acceded to the request of the learned counsel to permit the same to be compounded. However, considering the fact that parties have come to a settlement and the victims have no grievance now and considering the further fact that first appellant has already undergone a period of imprisonment of about six months, a lenient view can be taken and the sentence can be reduced to the period which he had already undergone. We order so and direct the jail authorities to set him at liberty forthwith. "

(3.) TAKING into consideration the submissions of both the accused as well as the victim P. W. 2, I am of the view that while confirming the conviction, the sentence alone can be modified to that of the period already undergone.