KAMI VITTHAL MANDHARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The applicants were tried in the Regular Criminal Case no. 83/1994 for offence under sections 326, 341 read with section 34 of I. P. C. before the Judicial Magistrate, First Class, Maregaon. That prosecution had arisen out of an incident that took place on 2-12-1985, when the applicants obstructed one Bapurao and others while they were going through the fields of the applicants. The allegation was that the applicant No. 2 assaulted Bapurao with but end of the axe which resulted in head injury to him and at that time the applicant No. 1 held Bapurao so as to facilitate the applicant No. 2 to assault him with the axe. The trial Court after considering the evidence convicted the applicants for offence under sections 326, 341, read with section 34 of I. P. C. and also sentenced them. to undergo one year rigorous imprisonment and fine of Rs. 500/- in default to under-go one month simple imprisonment each and one month simple imprisonment respectively by its judgment and order dated 17-2-1997. Applicants taking exception to the judgment of conviction and sentence passed against them preferred Criminal Appeal No. 12/1997 and the same was decided by the Ilnd Additional Sessions Judge, yavatmal on 28-2-2000, whereunder their conviction and sentence for offences under section 326 read with section 34 of I. P. C. was confirmed, while in respect of offence under section 341 in view of the compromise (Exhibit 12) an order was passed below Exhibit 1 on 19-1-2000, and the conviction and sentence was set aside and both the applicants came to be acquitted of the offence punishable under section 341 of I. P. C. The applicants have now approached this court challenging their conviction and sentence for offence under section 326 read with section 34 of I. P. C. by preferring this revision application. The learned Counsel for the applicants vehemently submitted that the Appellate Court committed an error in dismissing the appeal on erroneous considerations that the Court has no inherent powers like the Apex court to dispose of the matter taking into consideration the fact that the parties have compromised and settled the matter out of the Court. Learned counsel for the applicants as has been done before the Appellate Court placed reliance on the decision of the Apex Court in 2000 (5) Bom. C. R. (S. C. J99 : a. I. R. 1999 S. C. 2183 (Surendra Nath Mohanty and another-Appellants. v. State of Orissa-Respondentf. In that case when the matter was before the Supreme court it was brought to the notice of the Court that the parties have settled their disputes outside the Court. The appellants in that case were involved for committing offence under section 326 of I. P. C. and they were convicted for said offence by the trial Court as well as the First Appellate Court, their revision application against the conviction order and also the application for correction, alteration and for compounding of the offence filed by the appellants were rejected by the High Court. The Apex Court on considering the fact that the parties have settled their dispute outside the Court and 10 years have elapsed from the date of incident and the accused have already undergone three months rigorous imprisonment, the sentence of imprisonment reduced to a period already undergone. It was contended before the Apex Court on behalf of the. appellants that as the dispute was amicably settled and the matter was compromised the High Court ought to have granted permission to compound the offence and ought not to have convicted the appellants and imposed the sentence. As against that the learned Counsel for the respondent therein submitted that the offence under section 326 is not compoundable and therefore, the High Court has rightly rejected the application for compounding the same. The Apex Court found that the submission of the learned counsel for the respondent therein is required to be accepted. For compounding of the offence punishable under Indian Penal Code a complete scheme is provided under section 320 of the Criminal Procedure code, 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. The Apex Court therefore, observed that in view of the aforesaid legislative mandate, only the offences which are covered by the table 1 or 2 as stated above can be compounded and the,rest of the offences punishable under indian Penal Code could not be compounded.

(2.) However, the Apex Court referring to its earlier decision in (Ram Pujan v. State of Uttar Pradesh) , A. I. R. 1973 S. C. 2418 found that it does not advance the contention raised by the appellants. In the said case the Court held that the major offences for which accused have been convicted were no doubt non-compoundable, but the fact of compromise can be taken into account in determining the quantum of sentence. The Apex Court ultimately considering the earlier decisions observed that-considering a fact that the parties have settled their dispute outside the Court and the fact that 10 years have elapsed from the date of incident and the further fact that the appellants have already undergone three months imprisonment as per the sentence imposed on them, the ends of justice would be met if the sentence of imprisonment is reduced to the period already undergone besides imposing a fine. Therefore, in that case, the Apex Court reduced the sentence as indicated above, that is how the Apex court's appeal came to be disposed of.

(3.) In the case before hand the parties have already settled the matter by compromise and they had submitted application seeking permission to compound the offence. It is a matter of record that in addition to that application exhibit 12 the parties have filed compromise pursis. The Appellate Court has rightly rejected the application refusing to grant permission to compound the offence and basically for the reason that the offence under section 326 is noncompoundable. But the fact remains that the parties have settled the matter by compromise. It is not disputed that the parties are related with each other. The applicants are facing prosecution since 18 years by now and in that the sword of conviction is hanging on their head since almost five years and that is further aggravated by the Appellate Court confirming the conviction and sentence. The Appellate Court has accepted the compromise between the parties so far as the offence under section 341 of I. P. C. is concerned. The contents of application Exhibit 12 no doubt unequivocally show that the parties have settled the matter amicably and enmical relations between them have been put an end to and they have united as a result of the amicable settlement. Therefore, following the decision of the Apex Court in A. I. R. 1999 s. C. page 2181 in my considered opinion, substantive sentence as awarded by the Court below is not called for and that the ends of justice would meet if the substantive sentence of imprisonment is reduced to the period already undergone. With the assistance of the Counsel for the parties from the record it is found that at the trial the applicants were arrested on 2-12-85 and they were released on bail on 13-12-85 and when the appeal was decided on 28-1-2000 the applicants were taken in custody on the same day and this Court by order dated 17-2-2000 ordered release of the applicants on bail by suspending their sentence and accordingly the applicants came to be released on bail on 20-2-2000. This shows that the applicants were in Jail for a total period of 35 days. Having regard to the facts and circumstances of the case and self eloquent fact that the parties have settled the matter amicably and that the appellate Court has accepted the factum of compromise, the sentence already undergone by the applicants i. e. 35 days would meet the ends of justice. Hence the order: