Gujarat High Court

Thakor Sahdevji @ Mukeshji ... vs The State Of Gujarat on 5 April, 2023

Bench: Hemant M. Prachchhak

     R/CR.A/418/2007                                JUDGMENT DATED: 05/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                       R/CRIMINAL APPEAL NO. 418 of 2007


FOR APPROVAL AND SIGNATURE: Sd/-


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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1     Whether Reporters of Local Papers may be allowed                   Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                            Yes

3     Whether their Lordships wish to see the fair copy                  No
      of the judgment ?

4     Whether this case involves a substantial question                  No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                   THAKOR SAHDEVJI @ MUKESHJI LAXMANJI
                                 Versus
                          THE STATE OF GUJARAT
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Appearance:
MR PARAM BUCH FOR MR HRIDAY BUCH(2372) SENIOR ADVOCATE for
the Appellant
MR HK PATEL ADDL. PUBLIC PROSECUTOR for the Respondent
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                                Date : 05/04/2023

                               ORAL JUDGMENT

1. The accused has preferred this appeal under Section

374(2) of the Criminal Procedure Code, 1973 against the

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judgment and order of conviction dated 27.02.2007 passed by

the learned Additional Sessions Judge, Fast Track Court No.1,

Patan (hereinafter be referred to as "the trial Court") in Sessions

Case No. 16 of 2005, whereby present appellant (accused) has

been convicted for the offence punishable under Section 307 of

the Indian Penal Code and directed him to undergo sentence of

rigorous imprisonment of four years for the said offence with fine

of Rs.1,000/- and in default of payment of fine, to undergo simple

imprisonment for one month.

2. The case of the prosecution briefly is that on 27.07.2004

at about 8.00 a.m., son of complainant Prakashji left for

Sidhdhpur, at that time, the two persons i.e. accused ran behind

Prakashji and inflicted a blow of dharia on back side of the head

of Prakashji, by the appellant and Prakashji fell down and,

thereafter, the accused persons ran away. That Prakashji

became unconscious and he was taken to the Civil Hospital,

Sidhdhpur and, thereafter, referred to the Civil Hospital,

Mehsana where the First Information Report being C.R.No.I - 115

of 2004 came to be lodged with Sidhdhpur Police Station for the

offence punishable under Sections 307 and 114 of the Indian

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Penal Code against the accused persons.

3. Being aggrieved and dissatisfied with the impugned

judgment and order of conviction, the appellant - accused has

preferred the present appeal along with Criminal Misc.

Application No.8588 of 2007 for suspension of sentence. The

appeal came to be admitted by the Coordinate Bench of this

Court vide order dated 12.03.2007. The Coordinate Bench of this

Court allowed Criminal Misc. Application No.8588 of 2007 vide

order dated 13.08.2007 and released the appellant on bail. The

order dated 13.08.2007 reads thus:-

"1. Rule. Ms Meeta Panchal waives service of notice of rule.

2. In the facts and circumstances of the case this application is taken up for final hearing today.

3. Heard learned advocate for the applicant and Ms. Raval for the State. It appears from the impugned judgment that the applicant convict is sentenced to undergo imprisonment for four years and to pay fine of Rs.1,000/- in default to undergo imprisonment for one month. The applicant convict is in jail since 27.2.07 thereby he has undergone imprisonment of about 5 1/2 months. In view of the decision of Sureshkumar & Ors. Vs. State (NCT of Delhi) reported in 2001 (10) SCC page 338 and in the matter of Kiran Kumar Vs. State of M. P. reported in 2001 (9) SCC 211 as no exceptional circumstances are pointed out to refuse suspension of substantive sentence of imprisonment, the substantive sentence of imprisonment imposed by trial court is suspended till hearing and final disposal of this Appeal and

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the applicant is ordered to be released on bail on his executing a bond of Rs.5,000/- (Rupees five thousand only) with one surety of the like amount to the satisfaction of the lower court.

7. Rule is made absolute accordingly.

8. Direct service is permitted."

4. Upon consideration of the evidence of the complainant and

other witnesses, the trial Court convicted the appellant accused

under Section 307 of the Indian Penal Code and sentenced him

to undergo rigorous imprisonment for four years along with fine

of Rs.1,000/- and in default of payment of fine, to undergo simple

imprisonment for one month.

5. During pendency of the appeal, at the instance of the elder

people of the village and the community leaders, the parties are

said to have settled the matter whereby the complainant has

shown his willingness that he has no objection if the impugned

judgment and order of conviction passed by the trial Court is

quashed and set aside and the Court can consider the period

which the appellant has undergone during the pendency of the

trial and, thereafter, till the date of admission of the appeal.

6. Learned advocate appearing for the appellant accused has

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tendered the settlement purshis of the complainant - Sovanji

Becharaji Thakor and the injured Prakashji Sovanji Thakor dated

15.03.2021.

7. Today, the complainant along with injured as well as the

accused are remained personally present before the Court. As

the compromise deed is in vernacular language, the same is

taken on record after verifying the facts from the concerned

party. A joint compromise deed placed on record makes it clear

that the parties, on the advice of their elders, entered into an

amicable settlement and now they have no any grudge against

the appellant. The appellant has apologized for his fault and has

taken responsibility for his action and has maturely sought

forgiveness from the victim. In return, the victim has also

voluntarily accepted the apology while considering the age of the

appellant at the time of the incident and has forgive him and has

come forward without any reservation to settle the dispute.

8. Section 307 of the Indian Penal Code is a non-

compoundable offence. No permission can be granted to record

the compromise between the parties. Section 307 of the Indian

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Penal Code reads as under:-

"307. Attempt to murder.--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, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.

Attempts by life-convicts.-- [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.]"

9. It is worthwhile to refer to the decisions of the Hon'ble

Supreme Court in the case of Manjit Singh Vs. State of

Punjab reported in (2020) 18 SCC 777 and in the case of Sy.

Azhar Sy. Kalandar Vs. State of Maharashtra reported in

AIR 2021 SC 4298.

10. Considering the facts of the present case and the

averments made in the appeal and the material placed on

record, it appears that the parties have amicable settled their

dispute during the pendency of the appeal. As the offence is

under Section 307 of the IPC, the Court cannot grant any

permission to record the compromise arrived at between the

parties. Now, considering the fact that the incident took place on

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27.07.2004, so almost 20 years have been passed and there is

cordial relationship between the parties and there is no enmity

or dispute between the complainant and the appellant. Even

after the release the appellant on bail there is no allegation with

regard to the breach of peace or tranquility and no other offence

committed by the appellant. It emerges from the record that the

appellant is said to have been served out the sentence of six

months almost as a pretrial conviction and even after the post

trial conviction. That the appellant remained for a period of six

months in jail and he has also paid fine of Rs.1,000/-. Taking note

of the settlement arrived at between the parties and considering

the relationship of the parties and also sentence undergone by

the appellant, sentence of imprisonment imposed upon the

appellant under Section 307 of the IPC is reduced from four

years to the period already undergone by him and the fine of

Rs.1,000/- is putforth.

11. In the case of Manjit Singh (supra), the Hon'ble Supreme

Court has held and observed in paragraphs No.13 and 14 as

under:-

"5. Section 307 I.P.C. is a non-compoundable offence. No

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permission can be granted to record the compromise between the parties. In Ishwar Singh v. State of Madhya Pradesh, (2008) 15 SCC 667, the Supreme Court of India has held that in a non-compoundable offence the compromise entered into between the parties is indeed a relevant circumstance which the Court may keep in mind for considering the quantum of sentence. In Paras (13) and (14) of the judgment in Ishwar Singh (supra) this Court has held as under:

"13. In Jetha Ram v. State of Rajasthan, (2006) 9 SCC 255, Murugesan v. Ganapathy Velar, (2001) 10 SCC 504 and Ishwarlal v. State of M.P., (2008) 15 SCC 671, this Court, while taking into account the fact of compromise between the parties, reduced sentence imposed on the appellant accused to already undergone, though the offences were not compoundable. But it was also stated that in Mahesh Chand v. State of Rajasthan, 1990 Supp. SCC 681 such offence was ordered to be compounded.

14. In our considered opinion, it would not be appropriate to order compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned counsel for the appellant deserves consideration that while imposing substantive sentence, the factum of compromise between the parties is indeed a relevant circumstance which the Court may keep in mind."

As noted earlier, in the present case the appellant accused, Manjit Singh, has been sentenced to undergo imprisonment for five years. The appellant is said to have served seventeen months of imprisonment. Taking note of the compromise entered into between the parties and considering the relationship of the parties and the facts and circumstances of the case and also the sentence undergone by the appellant accused, the sentence of imprisonment imposed upon the appellant under Sections 307 and 324 I.P.C. is reduced from five years/two years to the period already undergone by him. The appellant is ordered to be released forthwith unless his presence is required in any other case. In view of the compromise entered into between the parties, the fine amount of Rs.50,000/- imposed upon the appellant is set aside. If the said fine amount has already been paid, the same shall be refunded to the appellant-Manjit Singh."

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12. In the case of Sy. Azhar S. Kalandar (supra), the Hon'ble

Supreme Court has held and observed in paragraphs No.11 to 14

as under:-

"11. In almost the same circumstances which have been noticed by us, a three Judge Bench of this Court in a recent judgment in Murali Vs. State represented by Inspector of Police, 2021(1) SCC 726 where the parties decided to forgive their past and live amicably, this Court has come to their rescue by interfering in the quantum of sentence which obviously is not compoundable under Section 320 Cr.P.C. but has interfered since there is no minimum sentence prescribed. This Court in Murali(supra), has taken note of the judgment of this Court in Ram Pujan and Others Vs. State of U.P., 1973(2) SCC 456 which was further followed by this Court in Ishwar Singh Vs. State of M.P .3 and the later decisions as referred to in paras 11 and 12 of the judgment has taken note of the compromise between the parties to reduce the sentence of the convicts even in serious noncompoundable offences. The relevant paras are as follows:

"11. In later decisions including in Ram Lal v. State of J&K (1999) 2 SCC 213; Bankat v. State of Maharashtra (2005) 1 SCC 343; Mohar Singh v. State of Rajasthan (2015) 11 SCC 226; Nanda Gopalan v. State of Kerala (2015) 11 SCC 137; Shankar v. State of Maharashtra (2019) 5 SCC 166, this Court has taken note of the compromise between parties to reduce the sentence of the convicts even in serious noncompoundable offences.

12. Given this position of law and the peculiar circumstances arising out of subsequent events, we are of the considered opinion that it is a fit case to take a sympathetic view and reconsider the quantum of sentences awarded to the appellants. We say so because: first, the parties to the dispute have mutually buried their hatchet. The separate affidavit of the victim inspires confidence that the apology has voluntarily been accepted given the efflux of time and owing to the maturity brought about by age. There is no question of the settlement being as a result of any coercion or inducement. Considering that

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the parties are on friendly terms now and they inhabit the same society, this is a fit case for reduction of sentence."

12. Taking into consideration the facts of the instant case and the circumstances arising out of the subsequent events, in our opinion, it is a fit case to take a sympathetic view and reconsider the quantum of sentence awarded to the appellant. We have recorded our satisfaction, based on the reasons, that the parties to the dispute have mutually settled their disputes and buried their past.

13. The joint affidavit inspires confidence that the apology as tendered by the appellant has voluntarily been accepted given the efflux of time and is not a result of any coercion or inducement. Considering that they are residing in the same village and are peacefully residing after the uncalled for incident has taken place, in our view, this appears to be a fit case for reduction of sentence.

14. Considering the overall facts on record and other mitigating factors and circumstances in which a crime has been committed including the nature of injury, period during which he remained under medical treatment, mental agony which the victim suffered and also the compromise entered into between the parties, while upholding conviction under Section 307 IPC, we deem it appropriate to reduce the quantum of sentence imposed on the appellant to five years rigorous imprisonment and to pay a fine of Rs. 10,000/and in default of payment of fine shall suffer further three months' rigorous imprisonment. Ordered accordingly."

13. Considering the submissions canvassed by the learned

advocates on both the sides and the material placed on record

and the aforesaid decisions of the Hon'ble Supreme Court, the

appeal deserves to be allowed in part and the impugned

judgment and order of conviction deserves to be modified to the

extent.

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14. In this case, more than 20 years have elapsed and the

parties have settled in life. Therefore, maintaining the judgment,

the interest of justice will be sub-served if the punishment of four

years is substituted by the period already undergone by the

appellant. This approach is adopted in view of peculiar facts of