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CR.A/65/1998 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 65 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
KANUBHAI
VAGHABHAI CHAVDA - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================
Appearance :
MR
BC DAVE for
Appellant(s) : 1,
MR HL JANI, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 28/03/2011
ORAL
JUDGMENT
This
appeal is directed against the judgment and order dated 16th
January, 1998 passed by the learned Additional Sessions Judge,
Nadiad in Sessions Case No. 146 of 1994, whereby the appellant has
been convicted for the offences punishable under Sections 325 and
323 of the Indian Penal Code. The learned trial Judge was pleased to
convict the appellant under Section 325 of the Indian Penal Code and
ordered to undergo simple imprisonment for a period of one year and
also imposed fine of Rs.500/-, and in default of payment of fine,
ordered to undergo simple imprisonment for a further period of three
months. The learned trial Judge was also pleased to convict the
appellant for the offence punishable under Section 323 and ordered
to undergo simple imprisonment for a period of one month. However,
both the sentences were ordered to run concurrently.
The
case of the prosecution is that on 20th June, 1993 at
about 20.45 hours, the appellant along with four other accused
forming an unlawful assembly and attacked on the father of the
complainant with deadly weapons. It is also the case of the
prosecution that the appellant, who was having Dharia in his hand,
had given Dharia blow on the head of the father of the complainant.
The original accused No.2 caught hold of the father of the
complainant and the appellant gave second blow of Dharia on the left
side of abdomen of the father of the complainant. The original
accused No.3 had given a stick blow to the complainant’s father.
Therefore, the complainant, his mother, his maternal aunty, his
sister intervened and made shouts. It is also the case of the
prosecution that the accused had also given stick blow to the
complainant’s sister. Thereafter, as the other people of street
gathered, the accused had run away.
Therefore,
a complaint to the said effect was registered with Vaso Police
Station. Thereafter, necessary
investigation was carried out and statements of several witnesses
were recorded. Panchnama of seen of offence came to be drawn. Even
from the possession of the present appellant, weapon Dharia was
seized and panchnama was also drawn. During the course of
investigation, as sufficient material was found against the accused,
they were arrested. After completion of investigation,
charge-sheet was filed in the competent Court but, the same was
committed to the Sessions Court, Nadiad for trial.
During
the trial, the prosecution has examined several witnesses and also
produced on record documentary evidence to prove their case.
At
the end of trial, the Court below convicted the accused and imposed
sentenced as narrated above and therefore, the appellant has filed
the present appeal.
Mr.B.C.
Dave, learned counsel for the appellant, has submitted that the
dispute between the parties have amicably settled outside the Court
on account of the intervention of responsible people of the
community. Mr.Dave has also contended that the appellant and the
complainant and the injured witnesses are residing in same village.
He has further submitted that no untoward incident has taken place
between the parties after the alleged incident and that the original
injured witness has willingly and under no duress has sought
permission of this Hon’ble Court to compound the offences.
In
support thereof, the learned counsel has produced the affidavit
dated 28th March, 2011 filed by the complainant and the
injured person at one side and the appellant-original accused at
other side. In the said affidavit, it has been stated that the
parties have amicably settled the dispute between them and they are
willing to compound the offences. The learned counsel has,
therefore, prayed that the appellant may be released by treating the
sentence already undergone by the appellant as sufficient.
I
have given my anxious consideration to the case and also the plea
put forward for seeking permission to compound the offences. I have
also examined the provisions of Section 320 of Code of Criminal
Procedure which deals with compounding of offences.
The
parties are residents of village Mitral, Taluka Nadiad, District
Kheda and no untoward incident had taken place after the alleged
incident. I am satisfied that the complainant and the original
injured witness have voluntarily desire to compound the offence with
the appellant-accused person for sufficient and genuine reasons
stated in the affidavit.
In
the case of Mahesh Chand & Anr. v. State of Rajasthan reported
in AIR 1988 SC pg. 2111, State of U.P. v. Fazilur Rehman reported in
J.T. 2002 (10) SC pg. 137, Badrilal v. State of M.P. Reported in
2005 SCC (Cri,) 1597, Jetha Ram v. State of Rajasthan reported in
2006 (9) SCC 255, Ishwar Singh v. State of M.P. Reported in AIR 2009
SC 675 and Manoj & Anr. v. State of M.P. Reported in 2009 (2)
GLH 56, the Apex Court while taking into account the fact of
compromise between the parties, has reduced the sentence imposed on
the accused to already undergone though the offences were not
compoundable. Thus, the compounding of offences is legal and valid.
Considering
the totality of the facts in the background of the settled legal
position, I allow the parties to compound the offences. Thus, the
appeal is partly allowed. The impugned judgment and order dated 16th
January, 1998 passed by the learned Additional Sessions Judge,
Nadiad in Sessions Case No. 146 of 1994 is modified in view of the
compromise arrived at between the parties, more particularly the
affidavit filed by the complainant – Govindbhai Gotabhai
Chavda and the injured person named Gotabhai Chhaganbhai Chavda and
also in view of the settled principles of law of compounding the
non-compoundable offences to the extent herein below :
The
conviction recorded by the Court below is confirmed; however, so far
as the sentence part is concerned, the same is modified to the
extent that the sentence already undergone by the appellant-accused
shall be treated to be sufficient sentence, in view of the
compromise arrived at between the parties. Appellant-original
accused is on bail and, therefore, this bail bond stand discharged.
The sentence with regard to payment of fine is not disturbed. If the
appellant has not paid the fine amount, he will pay the said amount
within a period of four weeks from today. Record and Proceedings, if
any, be sent back to the Court below forthwith.
(Z.
K. Saiyed, J)
Anup
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