The revision petitioner along with two other accused was tried by the learned Assistant Sessions Judge-cum-Chief Judicial Magistrate, Thoothukudi, in S.C.No.84 of 2007, for the offences under Sections 307 r/w 34 I.P.C., 326 r/w 34 I.P.C., and 323 r/w 34 I.P.C., (three counts). The Trial Court by order, dated 03.01.2008, had found the petitioner guilty for the offence under Section 326 I.P.C., and convicted him to undergo five years rigorous imprisonment and to pay a sum of Rs.1,000/- as fine and in default, to undergo three months rigorous imprisonment. The petitioner / first accused filed an appeal in C.A.No.14 of 2008, before the learned Additional District Judge, Fast Track Court No.II, Thoothukudi, and the Appellate Court by Judgment dated 24.04.2008 confirmed the conviction, however, modified the sentence to one year rigorous imprisonment for the offence under Section 326 I.P.C. The revision is filed against the said Judgment passed in C.A.No.14 of 2008.
2. The case of the prosecution in brief is that on 24.04.2006, at about 09.45 p.m., in Thoothukudi, due to the previous enmity in respect of sharing the commission in loading the salt bags, the petitioner / first accused along with two other accused had attempted to cut one Gnanaraj, with an intention to murder him with Arival and at that time, the witness Rajamani had tried to prevent the same and sustained injuries in his head. The second accused had cut the right index finger of Gnanaraj and the third accused had caused injury to the witnesses Rajamani and Gnanaraj by beating them with hands. The accused 2 and 3, while attempting to retrieve the Aruval from the hands of the petitioner / first accused, sustained injury in his hands and thereby, the petitioner / A1 was charged for the offence punishable under
Sections 307, 326,
323 r/w 34 I.P.C., the second accused was charged for the offence punishable under
Sections 307 r/w 34, 326 r/w 34 and
323 r/w 34 (three counts) I.P.C., and the third accused was charged for the offence punishable under
Sections 307 r/w 34, 326 r/w 34 and
323 (two counts) I.P.C. The accused had denied the charges framed as against them and trial was conducted and on the side of the prosecution, twelve witnesses were examined as P.Ws.1 to 12 and ten exhibits and one material object were marked as Exs.P1 to P10 and M.O.1 respectively. After completion of the trial and after examining the oral and documentary evidence, the Trial Court, by Judgment, dated 03.01.2008, found the petitioner / first accused not guilty for the offence punishable under
Sections 307 and
323 r/w 34 I.P.C., and found the accused 2 and 3 not guilty for the offence punishable under
Sections 307 r/w 34, 326 r/w 34 and
323 I.P.C., and acquitted them from the charges framed against them by giving benefit of doubt, however, found the petitioner / first accused guilty for the offence under
Section 326 I.P.C., and convicted and sentenced him for the said offence as stated above and the period during which, the petitioner / first accused was in remand i.e., 26.04.2006 to 17.05.2006 was directed to be set off under
Section 428 Cr.P.C.
3. Challenging the conviction and sentence imposed by the Trial Court, the petitioner / first accused preferred an appeal in C.A.No.14 of 2008, before the learned Additional District Judge, Fast Track Court No.II, Thoothukudi.
4. Though several legal grounds were raised in the appeal, the petitioner / first accused during the pendency of the appeal compromised the dispute with the victim Rajamani and pursuant to the compromise entered into between them, filed a miscellaneous petition in Crl.M.P.No.78 of 2003 in C.A.No.14 of 2008 under
Section 320(8) Cr.P.C., and sought to compound the offence and prayed to reduce the sentence to the period already undergone by him. In support of his claim, the petitioner / first accused had placed reliance on the decisions in Bankat and another vs. State of Maharashtra, reported in 2005 (1) SCC (Cri) 316; Jetha Ram vs. State of Rajasthan, reported in (2006) 9 SCC (Cri.) 255 and Hasi Mohan Barman and another vs. Sam and another reported in (2008) 1 SCC (Crl.) 161.
5. The ratio decidendi in the above referred judgments of the Apex Court is that in cases where the offences are not compoundable, compromise cannot be recorded, but the effect of compromise can be taken into consideration for reducing the sentence and thereby, the Apex Court had reduced the sentence to the period already undergone in the above cases. The Appellate Court, while relying on the decisions referred by the petitioner / first accused, observed that in all the above cases, the accused had been in prison for ten months, whereas the petitioner / first accused was in prison during the from 26.04.2006 to 17.05.2006 (22 days during remanded period) and 03.01.2008 to 10.01.2008 (8 days after conviction by the Trial Court Court), which was only about 30 days and thereby, while taking into consideration the petition for compromise, the plea of leniency and the facts and circumstances of the case, reduced the sentence of imprisonment to one year rigorous imprisonment and directed the petitioner / first accused to undergo the remaining sentence of imprisonment.
6. The present revision has been filed by the petitioner / first accused stating that the Appellate Court failed to consider the ratio laid down by the Apex Court in the above referred decisions in the right perspective and that the Appellate Court had not taken into consideration the intention of the parties to bury their animosity and live in amity.
7. Mr.A.Thiruvadikumar, learned counsel appearing for the petitioner / first accused contended that the incident occurred on 24.04.2006 and that the petitioner / first accused has not involved in any other criminal activity thereafter and the petitioner / first accused and the victim belong to the same village and that they have buried their animosity and settled the disputes amicably and during the year 2008, they have filed a compromise memo before the Appellate Court and that the petitioner / first accused having suffered incarceration for about thirty days, the Appellate Court ought to have, while confirming the conviction, benevolently reduced the sentence to the period already undergone. In support of his arguments for reducing the sentence to the period already undergone, the counsel for the petitioner / first accused relied on the decision in Ishwar Singh vs. State of Madhya Pradesh, reported in (2009) 3 SCC (Cri.) 1153 and an unreported Judgment of the Supreme Court, dated 05.10.2017 in Crl.A.No.1739 of 2017 [Ayyappan vs. State of Kerala].
8. Mr.C.Ramesh, learned Additional Public Prosecutor, submitted that though the parties have compromised the matter among themselves, the injury suffered by the victim was on the head and that the Appellate Court had while taking into consideration the nature of injury while reducing the sentence had rightly sentenced the petitioner / first accused to undergo imprisonment for one year.
9. In Ishwar Singh's case (cited supra), it has been held as follows: ?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, 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 justice would be met if the sentence of imprisonment awarded to the appellant (Accused 1) is reduced to the period already undergone.
16.For the foregoing reasons, the appeal deserves to be partly allowed and is accordingly allowed by maintaining the conviction recorded by the trial court and confirmed by the appellate court but by reducing the sentence already undergone by the appellant. The sentence of payment of fine is not disturbed. If the appellant has not paid the amount of fine, he will pay such amount within four weeks from today.?
10. In Ayyappan's case (referred supra), it has been held as follows: ?The petitioner was prosecuted for the offences under sections 308 and 326 of the Indian Penal Code (for short the IPC). The Trial Court acquitted him for offence under
section 308 IPC, but convicted him under
section 326 IPC. The petitioner was sentenced to undergo rigorous imprisonment for three years. The appeal filed by the petitioner against his conviction under
section 326 IPC was dismissed by the learned Sessions Judge. Thereafter, the petitioner filed revision before the High Court Court. The High Court partly allowed the revision petition and reduced the sentence to rigorous imprisonment for two years. Being aggrieved, the petitioner preferred this special leave petition.
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Upon perusal of the record, it appears that the incident has occurred on 04.11.2003. Since the parties are of the same village, they have buried their animosity and settled their disputes amicably. It is also stated in the aforesaid joint application for compounding of offence that the parties are living happily and harmoniously since 2009.
Having regard to the facts and circumstances of the case and in view of this Courts order, dated 01.03.2017 passed in the case of Unnikrishnan @ Unnikuttan vs. State of Kerala (SLP (Crl) No......./2016 Crl.M.P.No.18630/2016), we allow the joint application for compounding the offence and set aside the orders of conviction and sentence passed by the courts below against the appellant. The appellant is ordered to be acquired of the charges levelled against him.?
11. Yet another decision of the Apex Court in Surendra Nath Mohanty and another vs. State of Orissa, reported in (1999) 5 SCC 238 was also referred to by the learned counsel for the petitioner / first accused, wherein the Apex Court, taking into consideration that the accused had undergone three months imprisonment, reduced the sentence for the offence under
Section 326 I.P.C., to the period already undergone. Placing reliance on the above cited decisions, the learned counsel for the petitioner / first accused contended that the Appellate Court ought to have considered the intention of the parties and thereby reduced the sentence to the period already undergone, since no useful purpose would be served by sending the petitioner / first accused again to prison and prayed for leniency.
12. Now, having regard to the facts and circumstances of this case and that the occurrence having happened on 24.04.2006, the petitioner / first accused and the victim belong to the same village and that they have buried their animosity and settled the disputes amicably and that the petitioner having suffered incarceration for thirty days, this Court feels that while confirming the order of conviction, it would be appropriate to modify and reduce the sentence of imprisonment to the period already undergone, however in the interest of justice to enhance the amount of fine and to pay it by way of compensation to the victim.
13. In the result, the criminal revision petition is allowed in part and the Judgment, dated 24.04.2008, in C.A.No.14 of 2008, on the file of Additional District Judge, Fast Track Court No.II, Thoothukudi, confirming the Judgment, dated 03.01.2008, in S.C.No.84 of 2007, on the file of the learned Assistant Sessions Judge-cum-Chief Judicial Magistrate, Thoothukudi, convicting the petitioner / first accused is confirmed, however, the sentence of imprisonment for a period of five years rigorous imprisonment for the offence under
Section 326 I.P.C., by the Trial Court and later modified by the Appellate Court as one year rigorous imprisonment is further modified and reduced to the period of imprisonment already undergone by the petitioner / first accused. However, in the interest of justice, the fine amount is enhanced to Rs.21,000/- (Rupees twenty one thousand only) out of which, an amount of Rs.20,000/- (Rupees twenty thousand only) is ordered to be paid as compensation to the victim / P.W.2 under
Section 357(1) Cr.P.C. On perusal of the records, it is seen that the petitioner / accused has paid the fine of Rs.1,000/- during the pendency of appeal. The petitioner / first accused is directed to pay the balance amount of Rs.20,000/- (Rupees twenty thousand only) within a period of two months from the date of receipt of a copy of this order, failing which, the sentence of imprisonment passed by the Appellate Court in C.A.No.14 of 2008 will be restored.
To:
1.The Additional District Judge, Fast Track Court No.II, Thoothukudi.
2.The Assistant Sessions Judge
-cum-Chief Judicial Magistrate, Thoothukudi.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Inspector of Police, South Police Station, Thoothukudi.
.