Bharwad Rana Kana and Others vs State

This is a revn. appln. made against the order of the learned Addl. Ses. J., Central Saurashtra Division, Morvi, dismissing the appeal &

confirming the conviction & sentence of the appats. by the First Class Mag., Morvi, appct 1 was convicted u/s 326, I.P.C., & sentenced to one

years R.I., & appcts. 2 & 8 were convicted u/s 323, I.P.C, & sentenced to one months R.I. On 25-3-1948 some Kanbis of Khevalia had a

quarrel with some Bharvads of the village in the course of which two Bharvads, Raghu & Mepa received serious injuries. Shortly thereafter there

was a recrudescence of the trouble between the Kanbis & the Bharvads, & the Bharvads assaulted & caused injuries to two Kanbis Harkha &

Lavji. This resulted in cross complaints being filed by one side against the other. At the trial of these complaints, the parties came to terms in order

to maintain peace of the village, & the complaint against the Kanbis, who were charged u/s 826, I.P.C., was compounded & they were acquitted

by the Mag. An attempt for withdrawal of the complaint against the Bharwads, which was under Sections 326 & 829, I.P.C., was made but it

appears the learned Mag. did not allow the case to be withdrawn, & the case resulted in the conviction of the appcts. The appcts. appealed

against their conviction, & on the date of the hearing they applied to the appellate Ct. for leave to compound the offence u/s 323, I.P.C. of which

accused Nos. 2 & 3 were convicted. It appears that the leave to compound was sought after the arguments on both sides were concluded. The

learned Judge says, in his judgment, that he would have granted the leave if it had been sought before the hearing of the appeal, but as the hearing

of the appeal was over, the case was not covered by Section 345(5), Cr.P.C. & he could not grant the leave. In his opinion the words ""before

which the appeal is to be heard"" meant that a composition sought after the hearing of the appeal was not covered by the provisions of Section 345,

Sub-section (5), Cr.P.C. He appears to have taken this view on the Btrength of the decision in Emperor v. J.M. Chatterji AIR 1938 ALL. 434.

There, it was held that the composition, could be permitted provided it was made at an early stage, & that once the arguments were heard the case

would not be covered by the said Sub-section. We are unable to accept this interpretation. In our view the language of Sub-section (5) of Section

345 is clear, & the words above quoted have reference to the Ct. which is to hear the appeal & not to the stage of the hearing of the appeal; and

they do not indicate that the leave is to be applied for before the hearing of the appeal takes place.

A similar view was taken in Akan Sabzali v. Emperor AIR 1941 Sind 216. There the Addl. Ses. J. who heard the appeal found himself unable

to grant the leave because he felt the offence could not be held as falling u/s 323, I.P.C. until he has pronounced his judgment, & that as the

offence could be compounded only before the judgment was pronounced, no compounding of the offence was possible. In revn. it was held by the

Sind Chief Ct. that the view, viz., that the leave could not be granted until the judgment was pronounced was too technical & that there was no

difficulty for the appellate Ct.,

while writing its order or judgment in holding that the offence actually committed was one falling u/s 345(1) & then considering an appln. again for

compounding the offence & in passing an order allowing the offence to be compounded & the consequential order of acquittal.

Acting under Sub-section (5A) of Section 345 the Ct. allowed the case to be compounded. It is true that the line of reasoning adopted in that case

was slightly different, but the fact remains that the question of the stage of the hearing of the appeal was not considered as a bar to the Ct''s.

powers to allow the composition. The plain meaning of Section 345(5) in our opinion, is that where an appeal is pending against conviction no

composition of the offence shall be allowed without the leave of the Ct. before which, meaning before which Ct. the appeal is to be heard & that

the sub-section has no reference to the stage of the hearing of the appeal. The learned Addl. Sea, J''s. view of the matter is thus not correct, &

leave to compound the offence u/s 323, I.P.C. should not have been refused on that ground.

Under Sub-section (5A) of the section we have powers in revn. to allow the compounding of the offence which can be compounded u/s 345.

The complainant has shown a desire to compound the offence & in fact the Kanbis have already received the benefit of the spirit of the

compromise in as much as they have been acquitted in the complaint filed against them by the Bharwads. Therefore u/s 345(5A), Cr.P.C. we

allow the offence u/s 323. I.P.C. to be compounded, & we set aside the conviction & sentence of accused Nos. 2 & 3. Their bail bonds shall be

cancelled.

Accused No. 1 has been convicted u/s 326, I.P.C. & his conviction has been maintained by the lower Ct. The offence is not compoundable &

there is also no question now of the withdrawal of the case against him. Mr. Maniar has not now disputed the conviction, but has prayed for a

reduction of the sentence, & he has suggested that the sentence already undergone may be deemed to be sufficient. Considering the fact that the

parties have shown a desire for compromise in order to maintain the peace of the village & that as a result, thereof the complaint against the

Bharwads was compounded & they have been acquitted, it will be proper to take a considerate view of the mater. The learned Advocate-General

too has fairly conceded that the sentence of accused I may be reduced to the period already under gone. The accused has been in jail since more

than five months, & the sentence already undergone by him is adequate in the circumstances of the case. Therefore, while we maintain his

Conviction u/s 326, I.P.C., we remit the rest of the sentence, & order that he be set at liberty forthwith.