Somnath and Another vs State of M.P.

Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 8th of September, 1994 passed in Sessions Trial No. 23/94 by the Second Additional Sessions Judge, Durg, whereby, the Appellants have been convicted u/s 307/34 IPC and sentenced to undergo R.I. for 7 years.

The facts, briefly stated, are as under:

Appellant No. 2 Saraswati Bai is the second wife of victim Kirtanlal (PW3). In the year 1993, on some difference, Appellant No. 2 left the house of the victim and she was residing with her father (Appellant No. 1). After few days, the victim started visiting the house of the Appellants. On 23.8.93 at about 6.00 p.m., the victim went to the house of the Appellants and some hot exchanges took place between them. The allegations are that Appellant No. 2 firstly poured hot water on the victim, and thereafter both the Appellants assaulted the victim by gandasa & tangia. The victim received multiple injuries. He was taken to the hospital, where dehati nalishi (Ex.P6) was recorded at the instance of the victim. The victim was examined by Dr. S.C. Agrawal (PW2) who found 12 external injuries, including recent burns from hot water or any other substance. He opined that the nature of injuries were grievous. The injury report is Ex.P2. On a query being made on 13.9.93, he further opined that if primary treatment would not have been given immediately, the death was possible from those injuries. The query report is Ex.P3.

The learned Sessions Judge, relying on the testimonies of Kirtanlal (PW3) and Dr. S.C. Agrawal (PW2), held that the Appellants attempted the life of the victim, therefore, they were liable for punishment u/s 307/34 IPC.

Appellant No. 1--Somnath died during the pendency of the appeal. Therefore, the appeal filed on behalf of Appellant No. 1 was dismissed as abated and his name was deleted from the cause-title of the appeal vide Court order dated 30.8.2010.

On 21.9.2010, victim Kirtanlal (PW3) and Appellant Saraswati Bai (A2) filed a joint application (I.A. No. 2/2010) u/s 320 Code of Criminal Procedure and submitted that they have entered into compromise; the Appellant is living with the victim as his wife; now they have two issues, therefore, they may be permitted to compound the offence and the appeal may be disposed of accordingly. Appellant No. 2 and the victim have also filed their affidavits in support of I.A. No. 2/2010.

Mr. D.N. Prajapati, learned Counsel appearing on behalf of Appellant No. 2, argued that in the facts and circumstances of the case, an offence u/s 307/34 IPC would not be made out. He also argued that Appellant No. 2 and the victim are residing as husband and wife since long back; they have two issues from their wed lock; they have compromised the matter outside the court; Appellant No. 2 has already undergone for about 4 months, therefore, the application for permission to compound the offence may be allowed and the appeal may be disposed of in terms of Section 320 Code of Criminal Procedure.

On the other hand, Ms. Sunita Jain, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.

I have heard the learned Counsel for the parties at length and have also perused the records of the Sessions case.

Firstly I shall examine as to what offence, in fact, was made out against the Appellants.

Kirtanlal (PW3) deposed that when he was sitting in the house of the Appellants, Appellant No. 2 poured hot water on him. Thereafter his father-in-law said that he is coming after taking his bath but he came with a gandasa and assaulted over his head. He caught the gandasa of his father-in-law (Appellant No. 1). At that time Appellant No. 2 started assaulting him with tangia. He received multiple injuries. Kirtanlal was examined by Dr. S.C. Agrawal (PW2) who found 11 injuries on the person of the victim and all the injuries were lacerated wounds. Therefore, it was clear that the Appellants did not use the sharp portion of gandasa or tangia and they assaulted the victim by blunt portions. Doctor has opined in the medical report (Ex.P2) that the injuries sustained by the victim were grievous injuries. He did not opine that the injuries were dangerous to life or they were sufficient to cause death in ordinary course of nature. It is in the query, that the Doctor opined that if primary treatment would not have been given to the victim immediately, then, the death was possible on account of injuries sustained by the victim. The victim remained hospitalized from 23.8.93 to 30.8.93.

Section 307 IPC provides that whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder. The above provision makes it clear that the intention or knowledge of the accused must be such as is necessary to constitute the offence punishable for murder.

In Hari Kishan Vs. Sukhbir Singh and Others, the Supreme Court held that u/s 307, IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". u/s 30V the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention."

In case on hand, though the Appellants used gandasa and tangia but they did not use the sharp sides of those weapons. They used only blunt portions. The injuries though 11 in number were superficial lacerated injuries. There was no corresponding fracture to those injuries. Doctor also opined that the injuries were grievous but he did not record his opinion that those injuries were endangerous to life or the injuries were sufficient to cause death in ordinary course of nature. All these factors would show that on a quarrel between the victim and the Appellants on account of demand of money by the victim, the Appellants caused those injuries to the victim and their intention or knowledge was not such as is necessary to constitute an offence of murder. Therefore, the conviction of the Appellants u/s 307/34 IPC cannot be sustained and the acts of the Appellants would be punishable u/s 326/34 IPC.

In Surendra Nath Mohanty and Anr Vs. State of Orissa, the Appellants were convicted and sentenced under Sections 307, 326, 325, 324 & 323 read with Section 34 IPC and sentenced to 5 years R.I. with fine sentences. The High Court altered the conviction of the Appellants under Sections 326, 325, 324 & 323 read with Section 34 IPC and imposed sentence of 6 months'' R.I. & fine of Rs. 1,000 with default sentence for the offence u/s 326 IPC and no separate sentence was imposed on the other counts of offences. It appears that in High Court, an application for compounding the offence was moved but the same was dismissed.

The Supreme Court held that there is complete scheme provided in Section 320 Code of Criminal Procedure for compounding the offences and in view of the legislative mandate, only the offences which are covered by table 1 or 2 contained therein can be compounded and rest of the offences punishable under Indian Penal Code could not be compounded. Rejecting the above contentions raised by the counsel for the Appellants, the Supreme Court observed that the parties have settled their dispute outside the Court and 10 years have elapsed from the date of the incident and further that the Appellants have already undergone 3 months imprisonment as per the sentence imposed on them, and reduced the sentence imposed against the Appellants to the period already undergone besides imposing a fine of Rs. 5,000.

In Jalaluddin v. State of Uttar Pradesh AIR 2001 SCW 2266 the Appellant was armed with a churra (knife) with which he gave a blow to the victim as a result of which his nose-bone was fractured. The Appellant was convicted u/s 326 IPC. His conviction was maintained throughout. He was sentenced to undergo R.I. for 18 months. In appeal an application u/s 320 Code of Criminal Procedure was filed in the Supreme Court in which it was stated that the complainant and the Appellant are close relations and have compromised the dispute outside the Court. It was prayed that the offence may be permitted to be compounded. The Supreme Court rejected the application saying that the offence u/s 326 IPC is not compoundable and it cannot be compounded. However, looking to the facts and circumstances of the case, particularly that the occurrence had taken place long back on 24.12.79 on a trivial issue, the complainant and the accused are close relations, and now living amicably, the sentence awarded to the Appellant was reduced to the period already undergone.

In the present case also, Appellant No. 2 is the wife of the victim. They have amicably settled the dispute outside the court. They are residing as husband and wife since long back. Appellant No. 2 has begotten two children from the victim. The incident took place on 23.8.93 and a long period has elapsed thereafter. The incident occurred on account of a petty matter i.e. on demand of money by the victim from Appellant No. 1. Appellant No. 2 had left the company of the victim on some difference, and at that time she was residing with her father. Now Appellant No. 2 and the victim have filed a joint application for compounding the offence and they have prayed to dispose of the matter.

In view of the above judgments, the application (I.A. No. 2/2010) for compounding the offence cannot be allowed. Section 320 Code of Criminal Procedure provides a complete scheme for compounding of offences and Section 320(9) specifically provides that no offence shall be compounded except as provided by this Section. Therefore, the said application for compromise has to be rejected. Accordingly I.A. No. 2/2010 is rejected. However, looking to the entire facts and circumstances of the case, particularly the circumstance that after the death of Appellant No. 1 the matter now remains between husband and wife and they are living peacefully, I feel that the ends of justice would be served if Appellant No. 2 is convicted u/s 326/34 IPC and sentenced to the period already undergone by her which comes to about 4 months in this case.

Accordingly, the appeal is partly allowed. The conviction and sentence awarded to Appellant No. 2 u/s 307/34 IPC are set-aside. Instead, she is convicted u/s 326/34 IPC and sentenced to the period already undergone by her (about 4 months). Appellant No. 2 is on bail. Her bail bonds are cancelled and surety stands discharged.