JUDGMENT
P.S. Brahme, J.
1. Heard respective Counsel for parties. Perused the record with the assistance of the learned Counsel for the parties.
2. In regard to an incident that took place on 25.7.2001, in which the victim Babai (P.W. 1) w/o original accused No. 1 Suresh (appellant No. 1) was set on fire by pouring kerosene with assistance of Sakharbai (appellant No. 2), who is admittedly second wife of appellant No. 1, both the appellants were tried before the III Ad hoc Additional Sessions Judge, Ahmednagar, in Sessions Case No. 148 of 2001 for offences under Sections 498-A, 307 and 506 r/w Section 34 of Indian Penal Code and the learned Judge, by his judgment and order dated 19.3.2002 convicted the appellants for offence under Section 307 of Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 500/-, in default to suffer rigorous imprisonment for one month; and appellant No. 1, in addition, was convicted for offence under Section 498-A of Indian Penal Code and was sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 500 /-, in default to suffer rigorous imprisonment for one month. The appellant No. 2 was, however, acquitted of offence under Section 498-A of Indian Penal Code. Both the appellants were acquitted of offence under Section 506 r/w Section 34 of Indian Penal Code. So far as appellant No. 1 is concerned, the learned Sessions Judge directed that all the substantive sentences to run concurrently. The appellants have challenged their conviction and sentence passed against them by the learned Sessions Judge by this appeal.
3. At the trial, the prosecution examined in all nine witnesses, including the complainant Babai (P.W. 1), Dr. Sharad Patil (P.W. 4) who examined the victim Babai and issued certificate Exh. 30 for having found the victim suffered 35% burn injuries, one Bahusaheb Wayal (P.W. 3) who had received message on phone from the victim Babai (P.W. 1), Head Constable Akolkar (P.W. 6) who was attached to Nagar Taluka Police Station and who recorded the complaint Exh. 21 as per the statement made by victim Babai (P.W. 1) and on the basis of that offence came to be registered vide C.R. No. III of 2001. The charge-sheet was filed after completing investigation and before the Additional Sessions Judge to the charge framed, the accused pleaded not guilty and claimed to be tried. Their defence is that of denial.
4. It may be noted that the fact that the victim Babai (P.W. 1) suffered burn injuries is not disputed. What was suggested on behalf of the defence at the trial was that the victim suffered burn injuries while she was at her parents’ house. The learned Sessions Judge, accepting the evidence of the victim Babai (P.W. 1) who fortunately survived in spite of an attempt to commit her murder by pouring kerosene on her person, the statement made by her in her complaint Exh. 21, the medical evidence which consists of certificate Exh. 30 in which details of the burn injuries have been given, and the circumstances attending the case, came to the conclusion that the appellants did set on fire the victim Babai (P.W. 1) by pouring kerosene on her person. On the evidence of witness Babai, the Trial Court found that she was subjected to cruelty as contemplated under Section 498-A of Indian Penal Code. In keeping with these findings, the Trial Court convicted the appellant Nos. 1 and 2 of offence under Section 307 r/w Section 34 of Indian Penal Code and appellant No. 1 was also found guilty of offence under Section 498-A of Indian Penal Code and accordingly he was convicted for that offence and Sentenced as stated earlier.
5. Though I have heard learned Counsel for the appellants on merits, having regard to clinching evidence on record which has been rightly accepted by the Trial Court, I do not think, that so far as conviction is concerned, any interference is called for. In the light of submissions made by the learned Counsel for the appellants, I have independently assessed the evidence of victim Babai (P.W. 1) in which she has categorically stated as to how the incident has taken place, in which at night while she was sleeping, kerosene was poured on her person by the appellant and she was set on fire. It is pertinent to note that the fact that the victim Babai (P.W. 1) suffered burn injuries is not disputed. It is borne out on the evidence on record and it is not challenged also that at the time when the incident took place the victim was residing in the house with the appellant. That is the reason why the Trial Court has rightly rejected the defence that the victim suffered burns when she was at her parent house. I have found that the defence was palpably false as also illogical. It is found, that the version of victim Babai (P.W. 1) before the Court as regards the incident that has taken place, has remained undisturbed though she was subjected to searching cross-examination by the defence. It is true that the learned Counsel for the appellants pointed out some inconsistencies, as also delay that has occasioned in actually lodging the complaint. But, after considering overall evidence of the complainant, coupled with medical evidence, the inconsistencies which are brought out by the defence are found to be inconsequential. As regards delay in lodging the complaint it is apparent on the evidence of the Medical Officer Dr. Patil (P.W. 6) when he has said that initially when he examined Babai (P.W. 1) when she was admitted in the hospital, she was not able to give a statement. Therefore, in that contingency, later on after lapse of some time when she was conscious and fit to make a statement, police recorded her statement which was taken as the complaint, on the basis of which offence came to be registered. Therefore, when intrinsic solitary evidence of victim Babai (P.W. 1) inspires confidence; no error has been committed by the Trial Court in convicting the appellants by accepting the solitary version of the victim. The fact that the victim Babai (P.W. 1) was a person who has suffered injuries in the incident and in such situation, her evidence before the Court is to be accepted with added advantage that she herself is the sufferer and sustained injuries. Therefore, conviction of appellants for offence under Section 307 of Indian Penal Code and that of appellant No. 1 for offence under Section 498-A of Indian Penal Code has to be confirmed.
6. This takes me to consider the submission of Mr. Kulkarni, learned Counsel appearing for the complainant, as also Mrs. Kulkarni, learned Counsel appearing for the appellants. The basis of submission of learned Counsel is that parties have come to terms and to substantiate that, complainant Babai (P.W. 1) who is wife of appellant No. 1 has filed her affidavit which is taken on record. It is not disputed that the victim Babai was married with appellant No. 1 about 22 years before and they have three children of their marriage, one son who is aged about 17 years and two daughters, out of whom, Sunita is aged about 15 years. It is also admitted by the complainant that appellant No. 2 Sakharbai is the second wife of the appellant No. 1 and they have a daughter aged about 3 years and admittedly appellants as well as complainant were living together. It is stated by the complainant in her affidavit that the relations between the appellants and complainant have improved with passage of time because of the intervention of the relatives and in the interest of the family and to have peace and harmony between them they have settled their dispute and differences by arriving at settlement in which appellant No. 1 has agreed to maintain the complainant.
7. The learned Counsel, in the background of amicable settlement arrived at between the parties, have urged that the Court should allow compounding of the offences in the greater interest of the parties as desired by them. The learned Counsel also submitted in the alternate that considering the evidence, this Court should find the appellants guilty of lesser offence and then considering the fact that the parties have come to terms, permit them to compound the offence and consequently the appellants be acquitted. It is also submitted that so far as offence under Section 498-A of Indian Penal Code is concerned, it is now made compoundable. The learned Counsel submitted in the alternate that if it is not permissible to scale down the offence, which could be compounded under Section 498-A of Indian Penal Code is concerned, it is now made compoundable. The learned Counsel submitted in the alternate that if it is not permissible to scale down the offence, which could be compounded under Section 320 of Criminal Procedure Code, then having regard to the fact that the parties have settled the matter and in the interest of maintaining peace and harmony between the spouses, this Court should take a lenient view in the matter while considering the question of sentence. It is submitted with emphasis that having regard to the facts and circumstances of the case and also the fact that the parties have come to terms and determined to live in harmony after burying the hatched, the sentence already undergone by the appellants would meet the ends of justice.
8. Mr. Gorhe, learned Additional Public Prosecutor vehementally submitted that even after considering the fact that the panics have come to terms and decided to settle the matter, in no contingency it is permissible to compound the offences which are not compoundable having regard to the provision contained in Section 320(2) of Criminal Procedure Code. He also submitted that having regard to the nature of evidence and the fact finding position that has been arrived at by the Trial Court, which is confirmed by this Court, there is no scope for scaling down the offence to convict the appellants for lesser offence. He submitted that even at this stage no quashing of proceedings as contemplated under Section 482 of Criminal Procedure Code is possible and permissible having both the Courts found the appellants guilty of offence with which they were charged. However, the learned Additional Public Prosecutor is fair enough to submit that having regard to the fact that the parties have settled the matter and that the criminal prosecution against the appellants was the outcome of matrimonial dispute, there would be justification for the Court to take a lenient view in the matter.
9. The learned Counsel for the appellants placed reliance on decision reported in 1993 Cri. L.J. 3162, Smt. Daggupati Jayalakshmi v. The State, wherein the Andhra Pradesh High Court has held that when the wife and husband wants to forget their past misdeeds and when they want to live together and in pursuance of compromise all the matrimonial cases are settled, it is futile on the part of the Courts to still continue the non-compoundable offence. The Court further observed that when it is proved that compromise is effected voluntarily and they are living peacefully forgetting their past events, it is the duty of the Court not to disturb the calm atmosphere that has been created in their matrimonial life by not exercising the power under Section 482 of Criminal Procedure Code on the ground that the offence is not compoundable. It is said that in exceptional circumstances the High Court has got the power to exercise the power vested in it under Section 482 of Criminal Procedure Code and permit the parties in matrimonial cases to compound the offence.
10. In this context, let us consider the decision of Apex Court in III (1999) CCR 20 (SC)=IV (1999) SLT 346=1999 Cri. L.J. 3496, Surendra Nath Mohanty and Anr. v. State of Orissa. In that case, appellants were convicted for offence under Section 326 of Indian Penal Code. The offence was not compoundable. For compounding offences punishable under Indian Penal Code, complete scheme is provided under Section 320 of Code of Criminal Procedure, 1973. Sub-section (1) of Section 320 of Criminal Procedure Code 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) of Section 320 of Criminal Procedure Code provides that the offences mentioned in table could be compounded by the victim with permission of the Court. As against this Subsection (9) of Section 320 of Criminal Procedure Code specifically provides that, “an offence shall be compounded except as provided by this section”. The Apex Court giving emphasis on Sub-section (9) of Section 320 of Criminal Procedure Code 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. Therefore, ultimately the Apex Court, though did not permit the parties to compound the offences, as offences were not compoundable, having regard to the fact that the parties have settled their dispute outside the Court and 10 years have lapsed from the date of the incident and the accused have already undergone three months rigorous imprisonment, found that the sentence of imprisonment was reduced to the period already undergone. This pronouncement of the Apex Court makes the legal position clear that when the offences are not compoundable, the Court cannot give legal recognition to the compromise arrived at between the parties in view of the clear mandate under Sub-section (9) of Section 320 of Criminal Procedure Code. Therefore, learned Counsel for the appellants and the complainant (sic) to permit the parties to compound the offences. It is needless to say that the Trial Court has found the appellants guilty of offence under Section 307 of Indian Penal Code which is not compoundable having regard to the provisions contained in Section 320 of Criminal Procedure Code. Therefore, having regard to the law laid down by the Apex Court, the decision relied upon by the learned Counsel for the appellants in Smt. Duggupati Jayalakshmi’s case (cited supra), is of no assistance to the appellants and for the reasons stated above, this Court cannot take into consideration the said decision.
11. The learned Counsel also placed reliance on the decision of Madhya Pradesh High Court in 1999 Cri. L.J. 3417, Gopal Tiwari and Anr. v. State of Madhya Pradesh, to support his submission that conviction for non-compoundable offence be altered to that of compoundable offence in appeal. In view of the fact finding position by this Court whereby conviction of the appellants for offence under Section 307 of Indian Penal Code is confirmed, there is no scope and even propriety to alter the offence to a compoundable offence.
12. Some what similar situation had arisen in a case before our High Court, where the accused persons were convicted for offence under Section 307 r/w Section 149 of Indian Penal Code. The case is reported in II (2003) CCR 602=2003(2) Mh. LJ. 235, Sarjerao Shamrao Dhas and Ors. v. State of Maharashtra. Basically, before the High Court, the challenge was to the conviction of the appellants for an offence under Section 307 r/w Section 149 of Indian Penal Code which was not compoundable. However, on the basis of the fact that the appellants therein and injured had entered into compromise and were living peacefully. It was contended on behalf of the appellants before the High Court that having regard to the fact that the parties have settled the matter amicably, the accused be acquitted. However, the Court did not accept the submission made on behalf of the appellants as the appellants were mainly convicted under Section 307 of Indian Penal Code which is a non-compoundable offence. The Court, therefore, found that the appellants cannot be acquitted on the basis of the said compromise. However, making reference to the case reported in 1995 Supp (4) SCC Page 631, Salim and Ors. v. State of M.P., wherein similar facts arose as the appellants were convicted under Section 307 r/w Section 34 of Indian Penal Code. The Apex Court observed, “We cannot acquit the person on the basis of compromise. However, as held by this Court in Ram Pujan and Ors. v. State of U.P., the fact that they have compromised the matter and have patched up their differences and the fact that since then they have been living together happily, has relevance so far as the question of sentence is concerned”. This Court having satisfied with genuineness of the compromise, allowed the appeal and directed that the sentence should be altered to that already undergo.
13. In this context, it is appropriate to refer to the decision of the Apex Court in I (1999) DMC 29 (SC)=I (1999) CCR 317 (SC)=1999 (Cri. L.J. 1342, Ram Lal and Anr. v. State of Jammu and Kashmir, wherein the appellants were found guilty for offence under Section 326, of Indian Penal Code and while their conviction was under challenge before the Apex Court, it was contended that the parties have arrived at compromise and have come to the settlement and the victims were having no grievance against the appellants, it was urged that the appellants be permitted to compound that offence. The Apex Court while rejecting the prayer for compounding the offence with which the appellants were convicted as the offence under Section 326 of Indian Penal Code was not compoundable under Section 320 of Criminal Procedure Code, the Apex Court considered the fact that the parties have come to settlement and the victims were having no grievance against the accused and the accused having undergone imprisonment about six months’ sentence was reduced to the period already undergone.
14. Coming to the case beforehand, admittedly appellant No. 1 is in jail since the time of pronouncement of the judgment by the Trial Court i.e., 19.3.2002; whereas the appellant No. 2 was in jail from 19.3.2002 to 12.7.2002 as she came to be released on bail after the appeal was preferred and in pursuance of the order passed by this Court on 5.7.2002. I have ascertained that the parties in this case have come to amicable settlement and what is surprising is that it is the complainant Babai (P.W. 1) who has sworn in an affidavit in that regard, in which without any reservation she has made a candid statement that the dispute between them has been settled. She has stated that after the incident with the passage of time and because of intervention of the relations of complainant and appellants; the relations between them have improved and parties have decided to live peacefully in harmony forgetting the past. While according our satisfaction as regards the amicable settlement arrived at between parties, we take into consideration the future of the children of appellants and complainant and that is so because if dispute between the parties is allowed to perpetuate that would adversely affect the children. In other words, if the parties come to settlement and decide to live together in harmony, that will be beneficial in the interest of well being of the children born to complainant as well as appellant No. 2. That is in the sense, interest of children would be safeguarded in case settlement between them is accorded by this Court. In that view of the matter, we cannot think that the appellants should undergo the punishment awarded by the Trial Court. In other words, as held by the Apex Court, there is justification for reducing the sentence to the period already undergone to meet the ends of justice. As stated earlier the appellant No. 1 has already undergone about 2 years imprisonment. Therefore, sentence reduced to the period already undergone by him would meet the ends of justice. So far as appellant No. 2 is concerned, she has undergone sentence for a period of four months imprisonment. She was 26 years old. In the facts and circumstances of the case, the sentence already undergone by her is adequate having regard to the fact that she is also a consenting party for the settlement arrived at between appellant No. 1 and complainant. That is specifically spelt out in the affidavit which complainant has sworn in. It is to be noted that besides substantive sentence, the appellants were sentenced to pay fine and as the record shows the appellants have paid the amount of fine. So far as offence under Section 498-A of Indian Penal Code is concerned, the substantive sentence awarded by the Trial Court i.e., of two years’ rigorous imprisonment is directed to be concurrent with the substantive sentence passed for offence under Section 307 of Indian Penal Code.
15. In this view of the matter, the appeal of the appellants is partly allowed. The order of conviction on all counts is confirmed. However, while maintaining the sentence of fine, substantive sentences are reduced to the period already undergone by them. The appellant No. 1, who is in jail, shall be released forthwith, if not required in any other case. So far as appellant No. 2 is concerned, her bail bonds shall stand cancelled.