JUDGMENT
K.J. Vaidya, J.
1. These two appeals, one by the State of Gujarat for enhancement of the sentence against the respondent-accused Bhikhaji Kaluji only, and the another by Bhikhaji Kaluji and three others against their respective orders of conviction and sentence, arise out of the common judgment and order dated 31-12-1982, rendered in Sessions Case No. 108 of 1982 by the learned Assistant Sessions Judge, Mehsana, wherein respondents on their being tried for the alleged offences punishable under Sections 307, 326, 323, 324 of I.P.C. and Section 135 (i) of the Bombay Police Act, 1951, were at the end of the trial ordered to be convicted and sentenced as under:
The accused No. 1 Bhikhaji Kaluji was convicted for the offence punishable under Section 307 of I. P. C and sentenced to suffer R.I. for two years and to pay a fine of Rs. 300/- and in default R.T. for one month. While accused Nos. 2 and 3, viz., Hemaji Kaluji and Kaluji Bhimaji were convicted for the offence punishable under Section 323 of I.P.C. and each one of them was sentenced to suffer R.I. for one month and to pay a fine of Rs. 100/- and in default further R.I. for 15 days, while the accused No. 4 Motiji Hathiji was convicted for the offence punishable under Section 324 of I.P.C. and sentenced to suffer R.I. for 4 months and to pay a fine of Rs. 200/- and in default further R.I. for 15 days.
2. Recalling few relevant facts of the prosecution case in brief, it may be stated that incident in question took place on 21-3-1981 at 8-00 p.m. on a public road in village-Mamvada, Taluka Sidhpur, wherein all the aforesaid accused assaulted : (1) Keshar Dana (P.W.-12, Exh. 34); (2) Dhanraj Ramaji (P.W.-4, Exh. 19); and (3) Jesang Ramaji (P.W.-11, Exh. 33) causing injuries to them. It is further alleged that at the time of incident, the accused No. 1-Bhikhaji Kaluji was armed with Dhariya and he gave a blow with it on the head of Keshar Dana (P.W.-12, Exh. 34); the accused No. 4 was armed with an axe and inflicted a blow with it on Jesang Ramaji (P.W.-11, Exh. 33); while accused Nos. 2 and 3 who were armed with sticks gave blows with it on Dhanraj Ramaji (P.W.-4, Exh. 19) and Jesang Ramaji (P.W.-11, Exh. 33). The motive alleged for the incident in question was a fact that one Dhanraj Ramaji (P.W.-4, Exh. 19) had taken a cart on hire of one Madarji Chelaji (not examined) and that the accused persons also wanted the said cart, and as a result of this the dispute arose between the said parties giving rise to the present incident.
3. When these two appeals were called out for final hearing today, Mr. Ashok Shah, learned Advocate appearing for the accused submitted one application under Section 320(5) of the Code, the same being Misc. Criminal Application No. 715 of 1992 inter alia praying for granting necessary permission to compound the alleged offences between the accused and the injured parties. In a joint compromise purshis duly signed by the concerned parties and also identified and signed by the respective learned Advocates, annexed to the said application, it has been stated that the accused and the injured prosecution witnesses were residing in the same village, namely, Mamvada since last many years, and that, neither anytime before the alleged incident that took place on 21-3-1981 nor thereafter in last 11 years any further untoward incident had taken place between them. That the alleged incident had unfortunately arisen out of some misunderstanding at the relevant time and thereafter with the help of the good offices and intervention of some respectable citizens of the village, the embittered relations between the parties have been softened and amicably settled out of the Court and as a result of which, at present, better, cordial and peaceful relations have been restored once again between them bringing about peace in the village. In the concluding paragraph of the said compromise purshis, it has been specifically stated that the outcome of the said compromise was happy and the same was accepted voluntarily and without any sort of external pressure brought upon them. Mr. Ashok Shah, on the basis of aforesaid compromise purshis has submitted before vs that all the four accused persons, the injured prosecution witnesses as well as the local learned Advocate Mr. C. S. Rajput who has identified the accused, were present before the Court and therefore the compromise purshis submitted to this Court may be accepted and appropriate orders acquitting the accused be passed. Mr. Ashok Shah further submitted that the concerned parties have come from a long distance, and therefore, if the matter is heard and decided today, they may not have to unnecessarily stay over here. Now indeed there cannot be any objection for any Court to take into consideration the compromise arrived at between the parties out-of-the Court, while deciding the matter. But, at the same time, it is indeed not possible to accept the request of the learned Advocate to decide the matter now and here immediately. In the present case, it is not possible for us to accept the said request of the learned Advocate Mr. Shah for two reasons : firstly, so far as the accused No. 1-Bhikhaji Kaluji is concerned, he is convicted for the alleged offence punishable under Section 307 of I.P.C. and sentenced to suffer R.I. for two years and some fine. Now, this is an offence which is not compoundable even with the permission of the Court. Secondly, as regards those offences which are compoundable with the permission of the Court under Section 320(5) of Cr.P.C, it may be stated that before any Court can legitimately exercise its discretion to permit the composition of offences there must be some cogent and tangible material available on the record which can help, enable the Court to exercise its discretion reasonably. The paper book containing the evidence at trial standing by itself may not be sufficient as over and above the material facts and circumstances of the case, there must be some further independent material to render satisfaction to the judicial conscience of the Court that the composition arrived at between the parties was voluntary, bona fide and genuine one and that the accused have not been pressurised. Thus, granting of permission to compound the offences by the Court is not an idle and mechanical formality which can be undertaken at any time on mere asking of the parties without giving the Court reasonable opportunity to assess the bona fides of the compromise purshis. These days it is highly risky to accept such compromises without giving prosecution opportunity to make an indepth inquiry into the matter. In fact, whenever any such compromise purshis are filed before the Court, ordinarily, it should be the first and foremost duty of every such Court to find out of its own whether the compromise arrived at between the parties is voluntary, true, bona fide and genuine one as in these days of increasingly unbelievable broken down condition of law and order situation and terrorism prevailing all around, it is not impossible to rule out some possibility of such compromise being extorted at the point of some fear, black-mailing and/or some direct or indirect criminal intimidation. In this view of the matter, any Court faced with a situation wherein the offence could be compounded with the permission of the Court depending upon the facts and circumstances of that particular case, it should not mechanically embark upon exercising such vital discretion without taking adequate care to satisfy its conscience regarding the voluntary, genuine and bona fide character of such compromise purshis. In order to do this, it is desirable that a copy of such joint purshis is first of all handed over to the concerned Investigating Officer or for that purpose to some responsible Police Officer of that area to verify the contents of the same as well as to find out whether there exists any previous convictions or any other criminal antecedents and general conduct and character of the accused having any bearing on compromise. Such an exercise in the opinion of this Court ordinarily should be a condition precedent before the Court can safely and legitimately act upon such compromise purshis putting its final seal of approval granting the composition of the offences. At this stage, Mr. Ashok Shah submitted that day in and day out such compromise purshis are readily accepted and acted upon by many Courts and in that view of the matter, there will be no harm if in the present case also same is accepted after asking the parties present before the Court about its voluntary, genuine and bona fide character of the compromise purshis. We do not know as regards alleged practice followed by some of the Courts in matters which are required to be compounded with the previous permission of the Court. Any way, if such practice is followed by some Courts, then in that case, we may sound a word of caution that the same is simply improper as undue haste in accepting the composition between parties without properly verifying the voluntary, bona fide and genuine nature of the same, in a given case may bring about unimaginable consequences of gagging the voice of justice giving upper hand to the criminals. In fact, this type of hurried practice is a potential threat to the “administration of justice” and in turn to the “Rule of law” which requires to be scrupulously and zealously guarded by all the Courts concerned. Under the circumstances in the background of the view that we have taken, as stated above, we hereby direct the learned A,P.P. Mr. K. P. Raval to call any responsible Police Officer of the area asking him to conduct an indepth necessary inquiry into the matter of the alleged compromise purshis and find out whether the same is voluntary, bona fide, genuine and arrived at without any sort of external pressure or influence brought on the accused and submit thereafter his report duly sworn by him on or before the next date of hearing i.e., 6th March, 1992. 6th March, 1992.
4. In response to the direction given by this Court on 27-2-1992, Mr. K. P. Rava), learned A.P.P. has today submitted the sworn report of P.S.I. Mr. S. S. Chavda, P.S.I -Kakoshi Police Station, wherein it has been stated that he has personally verified the criminal registers of his Police Station and that no offence was found to have been registered against any of the accused except the alleged C. R. No. 19 of 1981 out of which the present proceedings arise. That, there were no other complaints showing any criminal antecedent or bad character of the present accused. Further according to the P.S.I. Chavda only recently he had an occasion to visit village Mamvada on 19-2-1992 and 25-2-1992 because of the election which took place on 23-2-1992, wherein accused Motiji Hathiji was declared elected uncontested. We are also told orally by the said P.S.I. Chavda that there was complete peace prevailing in the village and that the relations between the complainant and the accused were quite cordial. It was also submitted by P.S.I. Chavda that he has inquired from the village people about the general behaviour of the accused and also as regards the fact whether the compromise arrived at between the parties was voluntary and genuine one, and that nothing objectionable have been found against any of the accused. Thus, it appears to us that the compromise as rived at between the parties is quite voluntary and genuine. Over and above this, further the accused as well as the injured persons are also present in the Court today. All the four accused have expressed their sincere sorrow and repentance for the unfortunate incident that took place 11 years back They have stated that the incident was sparked off all of a sudden in a heat of moment without any pre-meditation. All of them were hailing from a respectable family and that not only they were feeling sorry but were also ashamed of what had happened in the past. They have also assured this Court that they will behave properly in future and will see that such an untoward incident is not repeated as they are very much interested in maintaining peace and good relation with the injured persons. The injured persons who are also present before the Court have also quite large heartedly forgiven the accused. Over and above the assurance of maintenance of peace and goodwill between the parties given by the accused, by way of abundant caution, we had also called each of the injured persons in our chamber and taking them in confidence have further and finally satisfied ourselves about the free, voluntary and bona fide nature of the composition arrived at between the parties. We are also told by the injured that they have been duly compensated out of the Court and have been paid Rs. 15,000/- by way of monetary compensation towards the injuries caused to them. This indeed is a fair deal. Thus, taking into consideration, the overall facts and circumstances of the present case we are quite satisfied that the genuine, peaceful accord have been freely and voluntarily arrived at between the concerned parties. We also feel that such an amicable satisfactory settlement out of the Court is not only in the best of the interests of the parties concerned but the same may as well auger well in favour of general peace and law and order situation of the village. In this view of the matter, we hereby permit the concerned parties to compound the alleged offences under Sections 323, 324 and 326 of I.P.C. and as a result accordingly the same shall stand compounded under Section 320(5) read with Section 320(i) and (ii) of the Code. However, the learned Advocate Mr. Shah has quite fairly submitted that since the accused No. 1-Bhikhaji Kaluji has committed offence under Section 307 of I.P.C. which is not compoundable even with the permission of the Court, he does not press his composition. At the same time, Mr. Shah submitted that when the matter is amicably settled out of the Court between the parties and the injured have been duly and fairly compensated by the accused party, taking overall view of the matter, at least while maintaining the order of conviction under Section 307 of I.P.C, at this stage, the accused-Bhikhaji Kaluji may not be asked to undergo substantive sentence of imprisonment leaving a trace of bitterness in the innermost recesses of his heart. As against this, the learned A.P.P. Mr. Raval submitted that the offence under Section 307 of I.P.C. was quite grave and serious, therefore, the respondent must be at least made to realise the wrong he has committed by making him suffer rigorous imprisonment for sometime. The learned A.P.P. further submitted that if no sentence of imprisonment will be awarded to the respondent, this particular judgment and order could possibly be cited in number of matters and be conveniently abused to the disadvantage of the prosecution treating the same as a precedent. Now, this apprehension of the learned A.P.P. is absolutely ill-conceived, and therefore, has no substance whatsoever- as in matter of sentence as well as granting permission to composition of offences cannot be cited as a precedent as every case has to be decided on the basis of the facts and circumstances and overall merits of that particular case. Further, taking into consideration the peculiar facts and the circumstances of this case, viz., offence alleged was committed long back, before 11 years, the other three accused involved in the same incident (accused Nos. 2, 3 & 4) are already permitted to compound these offences alleged against them, and further since injured have been duly compensated and the matter has been amicably settled otherwise out of the Court bringing about the atmosphere of peace and goodwill, it would be little too technical, unjust, harsh and vindictive to ask accused No. 1-Bhikhaji Kaluji to undergo sentence already awarded by the trial Court. Thus, taking into consideration the special facts and circumstances of this case while confirming the order of conviction under Section 307 of I.P.C. against Bhikhaji Kaluji, we feel that overall interests of the justice would be better served if no further sentence of imprisonment is awarded in this case.
5. In the result, Criminal Appeal No. 324 of 1983 filed by the State of Gujarat for enhancement of sentence against the accused No. 1-Bhikhaji Kaluji stands dismissed.
So far as Criminal Appeal No. 983 of 1983 filed by the accused is concerned, in view of the compromise arrived at between the parties and sanctioned by this Court, the accused Nos. 2, 3 and 4 are ordered to be acquitted. Accordingly, the order of conviction and sentence passed by the trial Court against them is hereby quashed and set aside. Fine, if paid, may be refunded.
6. So far as accused No. 1-Bhikhaji Kaluji is concerned, his order of conviction is confirmed and sentence is ordered to be modified as already undergone, and sentence of fine is confirmed.
Rule made absolute in Misc. Criminal Application No. 715 of 1992.