Bhanwara Ram And Ors vs State
2022 Latest Caselaw 11470 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
                   D.B. Criminal Appeal No. 83/1986


1. Bhanwara Ram S/o Sh. Jetha Ram
2. Deepa Ram S/o Sh. Roopa Ram
3. Babu Ram S/o Sh. Roopa Ram
4. Heera Ram S/o Sh. Purkha Ram
   All residents of Kolayat, Distt. Bikaner, Rajasthan
                                                                  ----Appellants
                                    Versus
The State of Rajasthan
                                                                 ----Respondent


For Appellant(s)          :     Mr. Kunal Bishnoi
For Respondent(s)         :     Mr. B.R. Bishnoi, PP


          HON'BLE MR. JUSTICE SANDEEP MEHTA
             HON'BLE MR. JUSTICE FARJAND ALI


Judgment reserved on                    :       01.08.2022
Judgment pronounced on                  :       15.09.2022


By the Court : Per Hon'ble Farjand Ali

The instant appeal has been filed under Section 374(2) of

Cr.P.C. against the judgment of conviction and order of sentence

dated 31.01.1986 passed by learned District & Sessions Judge,

Bikaner in Sessions Case No. 32/1985 whereby the appellants

were found guilty for the offence under Section 302 I.P.C. read

with Section 34 I.P.C. and they were sentenced to suffer life

imprisonment and a fine of Rs. 50/-(Fifty); in default of payment

of fine, they were to further undergo one month rigorous

imprisonment. During the course of appeal, out of the four

appellants, appellant No.2- Deepa Ram and appellant No. 4- Heera

Ram had passed away. Therefore, the appeal to their extent had

(2 of 22) [CRLA-83/1986]

been abated by this Court vide orders dated 18.05.1999 and

10.01.2000.

The appeal of both the appellants, Bhanwara Ram and Babu

Ram, was allowed partly by this Court vide judgment dated

24.09.2007 by setting aside their conviction under Sections 302 &

34 I.P.C. and both were convicted under Sections 325 & 34 of

I.P.C. and sentenced to the period already undergone by them.

The judgment dated 24.09.2007 came to be assailed by the

State of Rajasthan before Hon'ble the Supreme Court by way of

filing an appeal which was registered as Criminal Appeal No.

2027/2009 and Hon'ble the Supreme Court while accepting the

appeal filed by the State; has remanded the matter back to this

Court vide judgment dated 22.08.2019 with the observation

mentioned below:-

"6. As a result, we set aside the impugned judgment and order and relegate the parties before the High Court by restoring the Criminal Appeal filed by the respondent(s) to its original number for being decided afresh expeditiously on its own merits in accordance with law.

7. We make it clear that while considering the remanded appeal, the High Court will examine all aspects of the matter afresh without being influenced by the observations made in the impugned judgment or in the present order which is only for considering the matter in the context of the relief that we have granted in this case."

This appeal has been restored to its original number. Bailable

warrants were issued against appellant No.1- Bhanwara Ram and

appellant No.3- Babu Ram, directing them to remain present

before this Court and to make arrangement of counsel to appeal

on their behalf, vide order dated 02.01.2020.

(3 of 22) [CRLA-83/1986]

Mr. Kunal Bishnoi, learned counsel, has put in appearance on

behalf of the accused-appellants.

Heard learned counsel for the appellants, learned Public

Prosecutor and perused the entire record available.

Succinctly stated the facts of the case are that at the

instance of complainant, PW-1; Jetha Ram, an FIR came to be

lodged on 07.05.1985 at Police Station Diyatara at about 4.30 P.M.

alleging inter alia that on the fateful day of the incident, he and his

father- Bhagwan Ram were going from their hutment to their well.

The adjacent agricultural field belongs to one Roopa Ram and the

access to their field is through the field of Roopa Ram. They were

going to provide water to the cows and sheep which were being

carried by them. His father- Bhagwan Ram was having a she-

camel and was walking ahead of them. When the complainant and

his father, along with the animals, reached near the field of Roopa

Ram, suddenly the accused persons, namely Bhanwara Ram,

Deepa Ram, Babu Ram S/o Roopa Ram and Heera Ram S/o Purkha

Ram surrounded them by blocking their way. All the four accused

persons thrashed up his father- Bhagwan Ram with the 'lathis' in

their hands. When he shouted, the accused Heera Ram and Deepa

Ram came to beat him; he got frightened and fled to his hutment.

It was stated in the FIR that the neighbours Taza Ram and Jessa

Ram also witnessed the incident. His daughters, Gomti and

Lichhma, rushed to rescue their grandfather. Tulcha, wife of his

brother- Khinya Ram, too, was present there. It was further stated

in the FIR that he went to Kelansar from his 'dhani' to call his

brother- Khinya Ram who had gone there with a herd of cattle. It

was specifically mentioned in the FIR that all four accused persons

caused injuries to his father owing to the previous animosity in

(4 of 22) [CRLA-83/1986]

between them. On the basis of the said report, FIR No.45/1985

(Ex.P/8), came to be lodged at the Police Station Diyatara and

investigation was commenced. The accused persons were arrested

and after usual investigation, the charge-sheet came to be filed

against all four accused persons before the Court of Judicial

Magistrate for the offence punishable under Section 302 of the

I.P.C. Learned Magistrate took cognizance of the offence and then

committed the matter for trial to the learned Sessions Judge.

Learned Trial Court framed the charges against the accused

persons under Section 302 I.P.C. and in alternative, Sections 304

& 34 I.P.C.; the accused denied the charges and claimed trial,

thus, the trial began.

As many as twelve witnesses have been produced by the

prosecution and some documents have been tendered in evidence.

Thereafter, an explanation under Section 313 Cr.P.C. was sought

from the accused persons regarding the evidence adduced against

them. The accused-appellants pleaded that they have been falsely

implicated out of personal grudge. Subsequently, after hearing

learned counsel for the parties, the learned Trial Court found the

accused-appellants to be guilty of the offence under Sections 302

& 34 I.P.C. and sentenced them as mentioned above vide

judgment dated 31.01.1986.

Mr. Kunal Bishnoi, learned counsel vehemently submits that

since there was no intent to kill the deceased, therefore, the

finding of guilt under Sections 302 & 34 I.P.C. as arrived at by the

learned Trial Court is not sustainable in the eyes of law. It is

asserted that from the circumstances appearing in the case as well

as nature and number of injuries, the part of the body chosen to

be inflicted with injuries and the weapon used by the accused-

(5 of 22) [CRLA-83/1986]

appellants; it can safely be inferred that the accused-appellants

were not having an intent to kill the deceased. It is strenuously

urged that if at all the accused-appellants were having criminal

intent to kill the deceased, they could have brought lethal

weapons with them; instead 'lathis' were used which a farmer or a

herdsman ordinarily keeps with him. It is revealed from the

autopsy report that no bony injury was caused to the deceased

and no vital part had been chosen to be inflicted with injuries. The

cause of death, as opined by the Medical Officer, was shock and

hemorrhage caused by injury on liver. He asserts that the Medical

Officer has failed to mention in the Post Mortem Report regarding

the fact that which injury was attributable to rupture of the liver

and the same has not been explained by him before the Trial Court

when his testimony was recorded; thus, the medical evidence is

ambiguous and it is not established by any degree of certainty

that the rupture of the liver was a necessary consequence of the

injuries allegedly inflicted by the accused-appellants.

Learned counsel further submits that the parties are close

relatives and though there was acrimony in between them in

respect of some ordinary dispute but the death was never

intended. At the best, there might be intention of the accused-

appellants to cause some injuries with a view to chastise the

victim but by any stretch of imagination, it cannot be inferred that

the accused-appellants had an intention to kill him. Therefore, the

case of the accused-appellants would fall under the exceptions of

Section 300 I.P.C. It is further contended that two of the accused-

appellants have passed away during the course of hearing of

appeal and now, the entire liability is to be fastened upon the

accused-appellants; Bhanwara Ram and Babu Ram. However, it

(6 of 22) [CRLA-83/1986]

cannot be said with certainty that the rupture of liver was the

consequence of the injuries inflicted by either of these two

appellants. The rupture of liver can be caused by falling on a hard

substance or hard surface. Since there is no evidence, medical or

ocular, to establish the fact that the rupture of liver was the

necessary consequence of the injuries allegedly inflicted by these

two appellants, the case of the prosecution would not travel

beyond Section 325 I.P.C. read with Section 34 I.P.C. and looking

to the totality of facts and circumstances of the case, the sentence

already served by the accused would meet the ends of justice

since the incident had taken place in the month of January of 1986

and the accused-appellants had faced the rigor of trial and then a

considerably long time has been spent in hearing of the appeal.

Learned counsel for the accused-appellants further avers that

though Hon'ble the Supreme Court set aside the judgment of

appeal passed by this Court on 24.09.2007, yet it is left open for

consideration by the High Court on all aspects of merits including

the nature of offence. Lastly, it is submitted that looking to the

overall facts and circumstances of the case; the present age of

these two appellants and considering the fact that the incident

took place in the year 1986, it will not be justifiable to send the

appellants behind the bars again at this age after 36 long years

and therefore, while toning down the offence to either Section 325

I.P.C. or Section 304-II I.P.C. the sentence may be confined to the

period already served by the accused. It is submitted that the

parties are near relatives, resident of the same place and the

dispute in between them has finally been resolved and comity in

between two families has been restored. Therefore, considering

(7 of 22) [CRLA-83/1986]

this aspect, the appellants may be sentenced to the period already

undergone by them.

Per contra, learned Public Prosecutor submits that there is

ample evidence on record to bring home the guilt of the accused-

appellants. Learned Trial Court has dealt with all the factual and

legal aspects of the matter and thus, the same requires no

interference by this Court in appeal. He further submits that

alteration of conviction from Section 302 I.P.C. to Section 325

I.P.C. made by this Court was assailed by the State of Rajasthan

by filing an appeal and the same has been allowed by Hon'ble the

Supreme Court while observing that conversion of offence under

Section 302 I.P.C. to Section 325 I.P.C. was not appropriate in the

available circumstances. Attention of this Court has been drawn

towards the observation made by Hon'ble the Supreme Court in

appeal while setting aside the judgment passed by this Court

which reads as that at the best, the High Court could have

considered the case of the accused-appellants for converting the

offence under Section 304 Part II I.P.C. It is further observed that

the parties may have entered into some settlement during the

pendency of the appeal but that can be of no avail to the accused-

appellants so as to make it a basis for converting the offence

under Section 302 I.P.C. to that under Section 325 I.P.C.

Considering the circumstances of the case, Hon'ble the

Supreme Court remanded the matter to this Court for due

consideration on all aspects and merits including the nature of

offence.

We have gone through the impugned judgment, record of the

case and the judgment of remand passed by Hon'ble the Supreme

Court as well.

(8 of 22) [CRLA-83/1986]

The evidence needs to be re-appreciated and for that

purpose, we have carefully scanned the evidence brought on

record by the prosecution in the trial. The first informant, the son

of the deceased, Jetha Ram, has been examined as PW-1 in the

trial. In his on-oath statement, he states that while he was going

with his father, the accused-appellants made an assault on his

father and started beating him with 'Lathis' carried by them. They

stepped towards the witness too to beat him but he somehow fled

away from the spot, rushed to his hutment and informed others

regarding the incident; then, he lodged the FIR.

It is emanating from his testimony that as soon as the

accused started beating his father, he left the place meaning

thereby there was no other person to protect the deceased.

Taza Ram was examined as PW-3 in the trial and stated that

he had seen the accused beating the deceased- Bhagwan Ram. He

tried to intervene but he was threatened so he left the place. The

other eye-witness, Jessa Ram, PW-4, claims to have witnessed the

incident but as he was also intimidated, therefore, he neither tried

to reach near the crime spot nor did he try to save the deceased.

The Medical Officer, PW-5, Dr. Kedar Nath, who conducted

the autopsy of the deceased narrated the observations that he had

mentioned in the PMR. As per him, the following injuries were

present on the deceased:-

1. Two oblique contusions red in colour of 3"x1½ " and 4x1½"

each over right gluteal region.

2. One contusion of reddish colour of 3" x 1½" size over left

gluteal region 2" below the iliac crest.

3. Two contusions of 2" x 1" and 2¼" x 1" size over back of left

thigh. Red in colour over the lower half of the thigh.

(9 of 22) [CRLA-83/1986]

4. An obliquely placed contusion over back of right in lower half

of thigh of size 2½ " x 1¼ " red in colour.

5. A diffuse swelling of 2" x 3" size over the left calf region

about 1½" below knee joint.

6. A diffuse swelling of 2¼" x 2½" size over posterior side of

right leg about 1¼" below knee joint.

7. A contusion on chest posterolateral aspect of size 3" x 1¼"

over the lower part of right side of chest.

8. A swelling of 1½" x 1" over the occipital region of scalp.

He admitted in his cross-examination that there was neither

any mention in the PMR regarding the specific injury that caused

the rupture of the liver nor was it mentioned that the injuries were

sufficient to cause death in ordinary course of nature. He further

admitted that the liver could be ruptured by a fall on hard surface.

The other witnesses produced by the prosecution relate to

circumstantial/direct/linking evidence. Thus, the case of the

prosecution mainly hinges around the testimonies of PW-1, PW-3,

PW-4 and PW-5.

A careful appreciation of the statements of the above-

mentioned four witnesses reveals that the assailants were four in

number; nobody tried to save the life of or to protect the

deceased-Bhagwan Ram. No witness, including Jetha Ram PW-1,

son of the victim came to his rescue. The total number of injuries

inflicted to the deceased were eight in number and all were

located on the non-vital parts. It can be assumed that there was

nobody to restrain or stop the assailants from inflicting more

injuries to the deceased or to cause injuries on the vital parts of

his body but no such attempt was made.

(10 of 22) [CRLA-83/1986]

It is also manifesting that the deceased was not in a position

to make protest. He was in a helpless state but the assailants

made no attempt to land the blows of lathis on any vital body part

of the deceased. The blows were not inflicted with any significant

force and consequently none of the injuries inflicted to the

deceased have been opined to be grievous or dangerous to life

inspite of the fact that all the accused were having 'Lathis' in their

hands and the victim was at their mercy.

The particular external injury responsible for rupture of the

liver was not identified through medical evidence since there is no

external injury on the thoracic cage or near the hypochondrium

i.e. the upper third region of the abdomen.

It is also manifested from the evidence that after beating the

deceased- Bhagwan Ram, the accused had left the place without

any resistance. From a meticulous examination of the evidence

adduced by the prosecution, it can be presumed that the accused-

appellants were not having the intent to kill Bhagwan Ram.

Now, it is to be adjudicated that the act of the accused-

appellants will fall within which category of offence.

Moving to the first point of consideration, it needs to be

determined whether the present set of facts and circumstances

bring the case within the confines of Section 302 or Section 304

Part-II of the I.P.C.

Section 302 of the I.P.C. is the punishment-prescribing

provision for the offence of murder as defined under Section 300

of the I.P.C. The relevant extract of Section 300 of the I.P.C. reads

as under:-

"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death

(11 of 22) [CRLA-83/1986]

is caused is done with the intention of causing death, or

--

2ndly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

3rdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or --

4thly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

It is scrutable from a simple reading of the above-mentioned

provision that culpable homicide is considered to be murder in four

situations and the most imperative ingredient required to

perpetrate the offence of murder is the intention to kill.

Intention is the state of mind of the offender and there is no

physical evidence that can be produced as a fact to establish the

same in a concrete manner. It has to be inferred from the

circumjacent circumstances of the case and the evidence available

on record. Intention can be deduced from the act itself as well as

from the consequences of the act. Some of the prominent aspects

that are taken into consideration to draw such an inference are:

i) the number of injuries inflicted upon the victim,

ii) the nature of injuries caused,

iii) the kind of weapon(s) used to inflict the injuries,

iv) the parts of the body which the accused chose to inflict the

injuries, and

v) other surrounding circumstances like time of incident, place of

incident (whether it was the place belonging to the accused

persons or to the victim), previous animosity between accused and

(12 of 22) [CRLA-83/1986]

victim (it must be of such a degree that indicates strong reason(s)

or motive so as to show intent to cause death and not just a

discord/acrimony/strife of ordinary nature), the position of the

accused and the victim (if the accused was in a dominating

position and the victim was in a helpless condition, not hopeful of

being rescued) etc.

In the case at hand, the total number of injuries suffered by

the deceased are eight in number and none of them were having

any underlying fractures/bony injuries as disclosed by the Medical

Jurist and the Post Mortem Report. Thus, there cannot be any

quarrel on the proposition that all the injuries except the rupture

of liver were simple in nature. The injuries were not inflicted on

any vital parts of the body. Specifically, the most critical parts,

namely head, the thoracic cage that protects the heart and lungs

and the neck were not targeted by the accused. No external injury

on other vital parts or on its surface area was noticed.

Unfortunately, which injury caused a rupture in a part of the liver

(lower lobe) cannot be ascertained with surety. In fact, it is not

even certain that the rupture was caused by the injuries inflicted

by the accused persons and the PMR is also not conclusive on this

aspect. It is also not comprehensible that who was the author of

which injury and thus, the injury no. 7 that can be vaguely

presumed to be the one that caused the rupture, is also not

attributable to any specific accused-appellant. The submission of

the counsel that the rupture of the lower lobe of the liver can be

an outcome of the impact endured by the body when the deceased

must have fallen onto the earth seems to be compelling.

(13 of 22) [CRLA-83/1986]

The appellants were armed with lathis which cannot be

conceived to be lethal weapons. They were wielding wooden clubs

or 'lathis' which are commonly carried by farmers or people who

rear livestock. Moreover, the whole incident took place in a field

itself where it was not out of the ordinary for them to have the

'lathis' in their possession.

Coming to the surrounding circumstances which are to be

considered; it can be seen that there was previous animosity

between the accused and the deceased but not of such degree or

extent so as to give the accused-appellants a reason or motive to

cause death of the deceased. Albeit the relations were not good

but they were not inimical or ill-disposed to a measure where the

accused would be persuaded to kill him. It was a personal grudge

of ordinary petulance. It is emanating from the record of the case

that there was a tiff in between the parties. The deceased was

going through the field of the accused party (Roopa Ram) in a

purported exercise of easementary right of way. It seems that

some dispute arose while the deceased was traversing through the

field of the accused but the actual genesis of occurrence seems to

have been withheld by the witnesses. At the maximum, an intent

to hurt or cause injury in order to teach him a lesson or chastise

him in furtherance of their hard feelings can be inferred, but not

an intent to cause death of the deceased. The accused persons

were in a dominating position as neither was there anything in

possession of the deceased to protect himself nor were the

onlookers keen on shielding him from the attack. His own son fled

away from the scene and the people who gathered there showed

no sign of rescuing him. In this situation, if the accused persons,

(14 of 22) [CRLA-83/1986]

who were in large numbers and were holding 'lathis', chose not to

inflict forceful injuries or select any vital parts of the body to land

the blows, then it can safely be inferred that they did not have any

intention to kill.

Thus, it is the emphatic view of this Court that the accused-

appellants lacked intention to kill the victim and the matter

requires consideration as one falling under the purview of Section

304 Part-II.

Section 304 prescribes the punishment for the offence of

culpable homicide not amounting to murder. This Court is

concerned with Part-II of Section 304 which stipulates the

punishment for offence of culpable homicide not amounting to

murder applicable to act(s) that involve knowledge that the said

act(s) is likely to cause death but exclude intention to cause

death. Section 304 is reproduced as under, with emphasis supplied

to Part-II:

304. Punishment for culpable homicide not amounting to murder. -- Whoever commits culpable homicide not amounting to murder, shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

Coming to the next point of consideration, i.e. knowledge, it

can be safely presumed that the accused-appellants had

knowledge of the fact that the injuries inflicted by them may cause

(15 of 22) [CRLA-83/1986]

death of the victim who was an old man. The injuries that they

inflicted on victim could cause his death is inferable from evidence

because death was the ultimate or direct consequence of the

injuries inflicted by the assailants. Therefore, the liability of having

knowledge to inflict such injury which was likely to cause death of

the deceased can be inferred safely and therefore, this Court is of

the firm opinion that the prosecution has succeeded in establishing

the guilt of the accused-appellants for offence falling under Part-II

of Section 304 of I.P.C.

In light of the above discussion, this Court is of the firm view

that the present set of facts and circumstances do not warrant

application of Section 302 rather it is crystal clear that they

warrant conviction of the accused under Section 304 Part-II of the

I.P.C.

Since all the four accused persons were involved in

commission of crime and beating the deceased- Bhagwan Ram, all

of them were holding 'lathis' in their hands and actively

participated in bashing up the deceased, thus, the common

intention of all the accused persons can safely be inferred. This

Court is of the firm view that all four accused persons were having

common intention to beat the deceased- Bhagwan Ram and as a

consequence thereof, he received such bodily injuries which were

likely to cause death, therefore, the provision of Section 34 I.P.C.

shall be applied. Since two of the appellants have passed away

during the course of hearing of appeal, therefore, the surviving

appellants - Bhanwara Ram & Babu Ram, are held guilty of

committing offence under Section 304 Part II I.P.C. read with

Section 34 I.P.C.

(16 of 22) [CRLA-83/1986]

As discussed above, animosity between the accused and the

deceased was not such so as to give them a reason to kill him and

it appears that the attack was made only when victim was passing

through the field of the accused and the true genesis of the

incident seems to have been withheld by the prosecution. A long

time of about 36 years has passed since the incident. The

accused-appellants have faced the rigour of the trial and have

suffered a period of incarceration of about 18 months. They have

paid frequent visits to the Courts over the years; firstly while their

trial was going on, secondly when their appeal was being heard by

this Court, thirdly when order of the Division Bench of this Court

was assailed before Hon'ble the Supreme Court and lastly, when

their case is being heard again by this Court presently as a result

of being remanded back by Hon'ble the Supreme Court.

Throughout this legal ordeal, they must have faced immense and

irreparable mental agony. The age of the accused appellant-

Bhanwara Ram was 21 years and of accused appellant-Babu Ram

was 20 years at the time of incident. Now, they are about 58 and

57 years old respectively. From a humanitarian perspective, it

does not seem justifiable to send them to jail again, more

particularly considering that they have been entangled in court

proceedings for a long-drawn-out period of 36 years. The accused-

appellants Bhanwara Ram and Babu Ram were 21 and 20 years

old respectively at the relevant point of time when the offence was

committed, thus, their case can be considered for extending

benefit of probation but since they have already suffered

incarceration for a period of 18 months, therefore, instead of grant

(17 of 22) [CRLA-83/1986]

of probation to the accused-appellants, this Court deems it

appropriate to consider their case for reduction of sentence.

The material available on record does not reflect indulgence

of the accused-appellants in any criminal activity prior to lodging

of this case. As such, there is no criminal antecedent of the

surviving appellants, therefore, this aspect can also be considered

for the purpose of reduction of sentence.

Finally, it is pertinent to include into consideration another

aspect of compromise that has been executed between the

parties. The parties being closely related to each other, have

resolved their dispute and have reached an amicable settlement.

This Court is cognizant of the observations made in Gian Singh v.

State of Punjab reported in (2012) 10 SCC 303 wherein it has

been held that the cases of murder, rape, mental depravity,

dacoity, Prevention of Corruption Act cases etc. cannot be quashed

on the ground of compromise but here question of quashing of the

proceeding is not in consideration. This Court is of the firm opinion

that the fact of compromise can be taken into consideration for the

purpose of determining quantum of sentence with a view to

maintain harmony between two families and relatives and in order

to avoid reigniting the buried dispute between two relatives.

After examining the previous precedents governing the issue,

the Hon'ble Supreme Court in the case of Murli & Ors. Vs. State

reported in (2021) 1 SCC 726, considered the circumstance of

settlement between the families to be a valid ground to reduce the

sentences awarded to the accused even where the offences were

non-compoundable. It was held as below:-

(18 of 22) [CRLA-83/1986]

9. There can be no doubt that Section 320 of the Code of Criminal Procedure, 1973 ("CrPC") does not encapsulate Section 324 and 307 Indian Penal Code under its list of compoundable offences. Given the unequivocal language of Section 320(9) Code of Criminal Procedure which explicitly prohibits any compounding except as permitted under the said provision, it would not be possible to compound the Appellants' offences.

10. Notwithstanding thereto, it appears to us that the fact of amicable settlement can be a relevant factor for the purpose of reduction in the quantum of sentence. In somewhat similar circumstances where the parties decided to forget their past and live amicably, this Court in Ram Pujan v. State of UP (1973) 2 SCC 456], held as follows:

6. The only question with which we are concerned, as mentioned earlier, is about the sentence. In this respect we find that an application for compromise on behalf of the injured prosecution witnesses and the Appellants was filed before the High Court. It was stated in the application that the Appellants and the injured persons, who belong to one family, had amicably settled their dispute and wanted to live in peace. The High Court thereupon referred the matter to the trial court for verification of the compromise. After the compromise was got verified, the High Court passed an order stating that as the offence Under Section 326 of the Penal Code, 1860 was non- compoundable, permission to compound the offence could not be granted. The High Court all the same reduced the sentence for the offence Under Section 326 read with Section 34 of the Penal Code, 1860 from four years to two years.

7. The Appellants during the pendency of the appeal were not released on bail and are stated to have already undergone a sentence of rigorous imprisonment for a period of more than four months. As the parties who belong to one family have settled their dispute, it is, in our opinion, not necessary to keep the Appellants in jail for a longer period. 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. 1500 in addition to the period of imprisonment already

(19 of 22) [CRLA-83/1986]

undergone for the offence Under Section 326 read with Section 34 of the of the Penal Code, 1860. In default of payment of fine, each of the Appellants shall undergo rigorous imprisonment for a total period of one year for the offence Under Section 326 read with Section 34 of the of the Penal Code, 1860. Out of the fine, if realised, Rs. 2000 should be paid to Ram Sewak and Rs. 2000 to Ram Samujh as compensation. We ordered accordingly.

(emphasis supplied)

11. The aforecited view has been consistently followed by this Court including in Ishwar Singh v. State of MP : (2008) 15 SCC 667], laying down that:

13. In Jetha Ram v. State of Rajasthan : (2006) 9 SCC 255 : (2006) 2 SCC (Cri) 561], Murugesan v. Ganapathy Velar : (2001) 10 SCC 504 : 2003 SCC (Cri) 1032] and Ishwarlal v. State of M.P. [(2008) 15 SCC 671 : JT (1988) 3 SC 36 (1)] 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 : 1991 SCC (Cri) 159 : AIR 1988 SC 2111] 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.

15. In the instant case, the incident took place before more than fifteen years; the parties are residing in one and the same village and they are also relatives. The Appellant was about 20 years of age at the time of commission of crime. It was his first offence. After conviction, the Petitioner was taken into custody. During the pendency of appeal before the High Court, he was enlarged on bail but, after the decision of the High Court, he again surrendered and is in jail at present. Though he had applied for bail, the prayer was not granted and he was not released on bail. Considering the totality of facts and circumstances, in our opinion, the ends of

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justice would be met if the sentence of imprisonment awarded to the Appellant (Accused 1) is reduced to the period already undergone.

(emphasis supplied)

12. 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 non-compoundable offences.

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

14. Second, at the time of the incident, the victim was a college student, and both Appellants too were no older than 20-22 years. The attack was in pursuance of a verbal altercation during a sports match, with there being no previous enmity between the parties. It does raise hope that parties would have grown up and have mended their ways. Indeed, in the present case, fifteen years have elapsed since the incident. The Appellants are today in their mid-thirties and present little chance of committing the same crime.

15. Third, the Appellants have no other criminal antecedents, no previous enmity, and today are married and have children. They are the sole bread earners of their family and have significant social obligations to tend

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to. In such circumstances, it might not serve the interests of society to keep them incarcerated any further.

16. Finally, both Appellants have served a significant portion of their sentences. Murali has undergone more than half of his sentence and Rajavelu has been in jail for more than one year and eight months."

In light of the principles laid down by the Hon'ble Supreme

Court and looking to the totality of facts and circumstances of the

case as well as after appreciation of the evidence brought on

record, this Court feels appropriate to interfere in the final decision

arrived at by the learned Trial Court.

As per the overall discussion of the evidence adduced by the

prosecution and the observations made herein above, we hold that

the conviction of the appellants under Section 302 read with

Section 34 I.P.C. is not proper and therefore, the findings of the

learned trial Court, to this extent, deserve to be quashed and set

aside. The conviction of the surviving appellants Bhanwara Ram

and Babu Ram is altered from Section 302 read with Section 34

I.P.C. to Section 304 Part-II read with Section 34 of the I.P.C. The

period of sentence is reduced to the period they have undergone

till now which is around 18 months; which in the firm opinion of

this Court, is sufficient to meet the ends of justice in the peculiar

circumstances of this case.

Accordingly, the instant appeal is party allowed. The

impugned judgment of conviction and order on sentence dated

31.01.1986 passed by learned District & Sessions Judge, Bikaner

in Sessions Case No.32/1985 is modified to the extent that the

conviction of the appellants Bhanwara Ram and Babu Ram under

Section 302 read with Section 34 of I.P.C. is set aside and instead,

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they are convicted under Section 304 Part-II read with Section 34

of I.P.C. The period of sentence is reduced to the period that they

have suffered till now, i.e. the period they have already

undergone. The bail bonds furnished by the appellants are hereby

cancelled.

Record be sent back forthwith.

                                    (FARJAND ALI),J                                              (SANDEEP MEHTA),J



                                   Sahil Soni/01









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