Amar Chand @APPELLANT@Hash State of Rajasthan & Ors

The present petition has been filed under Section 482 Cr.P.C. praying that a direction be given to the lower Appellate Court to take factum of

compromise into consideration while deciding the appeal preferred by the petitioners.

Briefly stated, it was alleged by the complainant that on 11.3.2005 at 4:00 PM, petitioners had caused injuries to Sukhdev, Phoolwati and Rajwati. It is

further alleged that in the occurrence, Harichand received injuries on the head due to pelting of stones.

Learned counsel for the petitioners has submitted that the petitioners were tried by the court of Additional Chief Judicial Magistrate, Kaman,

Bharatpur and the said court vide impugned judgment dated 5.2.2015 Annexure-1 recorded conviction of the petitioners for the offences under

Sections 323, 341, 336, 326/34, 452 and 354 IPC. The trial court vide a separate order of even date sentenced the petitioners for above said offences.

Aggrieved against their conviction and sentence, the petitioners preferred an appeal challenging the judgment of conviction and order of sentence.

Learned counsel for the petitioners has contended that during the pendency of the appeal, accused, complainant and the injured affected compromise

in order to promote ever lasting peace and harmony. Learned counsel for the petitioners has contended that the compromise was presented before the

lower Appellate Court and the said court declined the compromise on the ground that the offences under Sections 336, 452 and 326 are non-

compoundable.

Learned counsel for the petitioners has very fairly submitted that even qua non-compoundable offences, factum of compromise can be taken into

consideration as a mitigating circumstance while considering reduction in the sentence. Learned counsel for the petitioners has relied upon the order

passed by this Court on 16.3.2018 in SBCRLMP NO.1357/2018 titled Deshraj Singh & Anr. vs. Man Singh & Anr. Since, counsel has heavily relied

upon the case of Deshraj Singh (supra), the said order is reproduced below:-

“Present petition has been filed under Section 482 Cr.P.C. praying that the order dated 19.2.2018 passed by the Sessions Judge, Karauli in Criminal

Appeal No.26/2017 whereby compromise was accepted for offence under Sections 323, 341 IPC and was rejected qua offence under Section 324

IPC being not compoundable, be set aside.

Learned counsel for the petitioners has submitted that the petitioners were tried by the court of Judicial Magistrate, Karauli. The said court vide

impugned judgment dated 22.8.2017 (Annx.1) convicted and sentenced the appellants for offences under Sections 341, 323 and 324 IPC. Learned

counsel contends that aggrieved against the same, the petitioners filed appeal. During pendency of the appeal, parties affected a compromise and the

compromise was filed before the appellate court below. The appellate court below on 19.2.2018 passed the following order:-

“19-2-18 vihykaV nsâ€kjkt eksgu e; odhy mifLFkrA et:c ekuflg e; odhy mifLFkrA et:c ekuflag us vihykaV ds lkFk /kkjk 323] 341] 324 vkbZ ih lh

esa jkthukek djus dh vuqefr pkghA lquk x;kA i=koyh dk voyks du fd;k x;kA et:c ekuflag dks /kkjk 323] 341 vkbZ ih lh es a jkthukek djus dh vuqefr nh

tkrh gSA /kkjk 324 vkbZ ih lh jkthukek ;ksX; ugh gksus ls /kkjk 324 vkbZ ih lh ds jkthukek dh vuqefr [kkfjt dh tkrh gSA et:c ekuflag us

vihykV@eqyfteku ns’kjkt] eksgu ds lkFk /kkjk 323] 341] 324 vkbZ ih lh esa jkthukek isâ€k fd;kA jkthukek i`Fkd l s /kkjk 323] 341 vkbZ ih lh esa

rCnhy fd;k x;k o /kkjk 324 vkbZ ih lh d s fy, jkthukek [kkfjt fd;k x;k cgl dks le; pkgkA i=koyh okLr s cgl vihy fnukad 16-3-18 dks isâ€​k gksA

,l Mh lSâ€​ku U;k;k/kh’kâ€​

Learned counsel for the petitioners submits that a grave error was committed by the court below not to accept the compromise qua Section 324 IPC.

This court is not at all impressed by this argument. Offence under Section 324 IPC is not compoundable. Once the petitioner has been convicted for

offence under Section 324 IPC, offence cannot be compounded, but factum of compromise can always be taken into consideration by the court as a

mitigating circumstance while considering reduction in the sentence.

Taking lead from the observations made by this court, learned counsel for the petitioners has relied upon a recent judgment rendered by this court in

S.B. Criminal Appeal No.157/1985, Mangi Lal v. State, decided on 11.01.2018, wherein it was held as under:-

“Having successfully urged that the factum of compromise, was verified and accepted by the learned trial court. Leaned counsel has relied upon

the judgment rendered by the Supreme Court in case of Ram Pujan & Ors. vs State of Uttar Pradesh, AIR 1973 SC 2418, wherein it was held that

even though offence under Section 326 IPC is non-compoundable, but considering the factum of compromise sentence ought to be reduced to already

undergone.

It has been held by the courts on numerous occasions that compromise is the finest hour between the parties and where the parties are closely related

the court should in order to promote amity, harmony and tranquility between the parties should grant due credence to the compromise.

Supreme Court in Gulab Das & Ors. Vs State of M.P. AIR 2012 Page 888 having noted that offence under Section 307 IPC cannot be compounded

held as under:-

 “6. Ms. June Chaudhari, learned senior counsel for the Appellants argued that during the pendency of the case in this Court the parties have

entered into an amicable settlement/compromise and filed Criminal Misc. Petition No. 20418 of 2011 for permission to compound the offences of

which the Appellants stand convicted. She drew our attention to the compromise deed filed along with the application and argued that since the parties

had buried the hatchet by amicably settling their disputes, this Court could allow the matter to be compounded or in the alternative take a lenient view

in regard to the sentence awarded to them. It was further submitted that so far as Appellant No. 1 is concerned he has already served the sentence

awarded to him under Section 323 Indian Penal Code.

In the light of the submissions made at the barthe only question that falls for determination is whether the prayer for composition of the offence

under Section 307 Indian Penal Code could be allowed having regard to the compromise arrived at between the parties. Our answer is in the negative.

This Court has in a long line of decisions ruled that offences which are not compoundable under Section 320 of the Code of Criminal Procedure.

cannot be allowed to be compounded even if there is any settlement between the complainant on the one hand and the accused on the other.

Reference in this regard may be made to the decisions of this Court in Ram Lal and Anr. v. State of J and K MANU/SC/0034/1999 : (1999) 2 SCC

213, and Ishwar Singh v. State of Madhya Pradesh MANU/SC/8126/2008 : (2008) 15 SCC 667. We have, therefore, no hesitation in rejecting the

prayer for permission to compound the offence for which Appellant Nos.2 and 3 stands convicted.

Having said that we are of the view that thesettlement/compromise arrived at between the parties can be taken into consideration for the purpose

of determining the quantum of sentence to be awarded to the Appellants. That is precisely the approach which this Court has adopted in the cases

referred to above. Even when the prayer for composition has been declined this Court has in the two cases mentioned above taken the fact of

settlement between the parties into consideration while dealing with the question of sentence. Apart from the fact that a settlement has taken place

between the parties, there are few other circumstances that persuade us to interfere on the question of sentence awarded to the Appellants. The

incident in question had taken place in the year 1994. The parties are related to each other. Both Appellant Nos. 2 and 3 were at the time of the

incident in their twenties. It is also noteworthy that the incident had led to registration of a cross case against the complainant party in which the trial

Court has already convicted Veeraji and Ors. for offences punishable under Sections 325/34 and 323 Indian Penal Code and sentenced them to

undergo imprisonment for a period of two years and a fine of Rs. 300/- and imprisonment of six months under Section 323 Indian Penal Code. We are

told that the parties having settled the matter, will approach the High Court for an appropriate order in the appeal pending before it. More so, the

Appellants have already served substantial part of the sentence awarded to them.

9.In the totality of the circumstances we are of the view that the settlement arrived at between the parties is a sensible step that will benefit the

parties, give quietus to the controversy and rehabilitate and normalize the relationship between them.

In the result, while upholding the order of conviction recorded by the Courts below, we reduce the sentence awarded to the Appellants to the

sentence already undergone by them. The appeal is to that extent allowed and the impugned orders modified. The Appellants shall be set free

forthwith if not otherwise required in any other case. “

Relying upon the case of Ram Pujan & Ors. and Gulab Das (supra), giving due sanctity to the compromise arrived at between the parties who were

closely related and borrowing the words from the Supreme Court “that the settlement arrived at between the parties is a sensible step that will

benefit the parties, give quietus to the controversy and rehabilitate and normalise the relationship between themâ€, I am of the view that in the present

case, appellant has already suffered protracted trial for about 32 years. A good case is made out for reduction of the sentence to the period already

undergone.

Consequently, the sentence of seven years is reduced to the period already undergone. However, sentence of fine is enhanced to Rs.5000/-, in default

of payment of fine appellant shall undergo three months rigorous imprisonment. The amount of fine be paid shall be disbursed to the injured Prabhu

Lal(PW.1) if he is alive, otherwise to his legal heirs.â€​

It is true that after conviction, non-compoundable offence cannot be compounded, but this court has no doubt that in the light of judgment rendered by

this court and the Supreme Court, lower appellate court, indeed, shall take into consideration the compromise arrived between the parties for releasing

the accused on probation or reducing the sentence adequately especially when the appellant and complaint are son and father respectively.

In view of above, present petition stands disposed of. “

Having heard the learned counsel for the parties, this Court is of the view that even though the petitioners have been convicted for non-compoundable

offences and same cannot be compounded, the lower Appellate Court still can take into consideration compromise as mitigating circumstance in the

light of observations made by this Court in the case of Deshraj Singh (supra), which has been reproduced above.

This Court has no doubt that the lower Appellate Court shall give due credence to the compromise arrived between the parties for reducing the

sentence adequately so that the parties are able to live in peace and same shall ward off untoward incident in future.