Ishaque @ Totaliya vs State of M.P.

D.P.S. Chauhan, J.

The appellant Ishaque alias Totaliya was convicted in S.T. No. 127 of 1985 by Additional Sessions Judge, East Nimar, Khandwa vide Judgment and order dated 8-8-1986 whereagainst the present appeal is directed.

The appellant was convicted u/s 326, Indian Penal Code and was sentenced to 2 1/2 years'' RI together with fine of Rs. 500/-.

In the present case, a joint application was moved both by complainant and the appellant for seeking permission to compound the offence. The application was moved on 12-10-1995 together with an affidavit of Abdul Sattar, the complainant and in the affidavit it was stated that they have mutually compromised the matter voluntarily, not being under duress and the relationship between the families have become good and friendly.

This Court, on 2-4-1996, passed the following order :

"Appellant with Shri N. K. Khare, Shri Pendharkar, Dy. G. A. for the Res. State.

Complainant Abdul Sattar with Shri R. A. Robertson, Advocate.

Counsel for the appellant and the complainant intimate that they are present and that they have voluntarily compounded the offence and have filed affidavits. The complainant and the appellant both state that they have filed an affidavit in this regard and they have compounded the offence between themselves. The affidavit be kept on record and shall be considered at the time of judgment, as prayed by both the parties.

The complainant and the appellant shall get their presence marked in the office."

Heard the learned counsel for the appellant and the learned State Counsel.

Section 320 of the Code of Criminal Procedure, 1973 provides that for the offences punishable under the sections of the Indian Penal Code specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table. Section 326, Indian Penal Code is not the section contained in the Table given in section 320, Criminal Procedure Code.

It is correct position that so far as the prayer for compounding the offence u/s 326, Indian Penal Code is concerned, the same cannot be allowed. However, in view of the facts stated in the affidavit by the complainant that the parties have come to a compromise and the relationship between the families have become good and friendly and they want to live in peace and harmony, obviously to avoid any ill-feeling in future, it would be proper to consider the matter on the question of sentence.

In Ram Pujan and Others Vs. State of Uttar Pradesh, , the Court held :

"The major offence for which the appellants have been convicted is no doubt non-compoundable, but the fact of compromise can be taken into account in determining the quantum of sentence. It would, in our opinion, meet the ends of justice if the sentence of imprisonment awarded to the appellants is reduced to the period already undergone provided-each of the appellants pays a fine of Rs. 1,500/- in addition to the period of imprisonment already undergone for the offence u/s 326 read with section 34 Indian Penal Code."

There is another case of the Supreme Court AIR 1988 2111 (SC) . In this case, the offence was u/s 307, Indian Penal Code which was non-compoundable under the law. The parties wanted that the case may be considered as a special case in view of the peculiar circumstances of the case and the Court passed the following order :-

"3. We gave our anxious consideration to the case and also the plea put forward for seeking permission to compound the offence. After examining the nature of the case and the circumstances under which the offence was committed, it may be proper that the trial Court shall permit them to compound the sentence."

So far as the above decision is concerned, it is not a law declared by the Supreme Court under Article 141 of the Constitution of India but is passed in exercise of powers under Article 142 of the Constitution and as such it cannot be made applicable for granting permission for compounding the offences which are non-compoundable by the statute. However, since an affidavit is filed by the complainant himself stating that the relationship between the families of the complainant and of the accused have become good and their terms are now friendly. I consider it proper, in view of the decision of the Supreme Court in Ram Pujan v. State of U. P. (supra) to consider the matter on the question off sentence.

The appellant has already undergone a jail sentence for a period of two and a half months and in view of the changed circumstances, no other factors can be taken into consideration except that the relationship between the accused and the complainant which have become cordial, may turn hostile and as such, I am of the view that the ends of justice would fully be satisfied if while maintaining the conviction of the appellant, the sentence is reduced to already undergone maintaining the imposition of fine.

The appeal is accordingly dismissed with the modification in the sentence as aforesaid. The appellant is on bail. He need not surrender. So far as the question of fine of Rs. 500/- is concerned, learned counsel for the appellant stated that the fine amount has already been deposited. The bail-bond and the surety bonds are discharged.