AI Structured Summary
Not yet generated for this judgment
Judgment
Harsha Devani, J
Since all these appeals are interconnected, the same were taken up for hearing together. The appellant Rajendrakumar alias Raju Ganpatram Joshi
in Criminal Appeal No.645 of 2011 is the original accused No.1 in Sessions Case 83 of 2009. Criminal Appeal No.1110 of 2011 has been filed by the
State Government seeking enhancement of the sentence imposed upon Rajendrakumar alias Raju Ganpatram Joshi by the trial court. Criminal Appeal
No.953 of 2011 has been filed by Rajendrakumar Ganpatram Joshi against the acquittal of the accused in the cross case. Criminal Appeal No.1236 of
2011 has been filed by the State of Gujarat against the acquittal of the accused in the cross case.
Insofar as Criminal Appeals No.645 and 1110 of 2011 are concerned, one Chetanbhai Uttambhai Khatri (the accused No.1 in the cross case)
lodged a complaint to the effect that on 11.2.2009 in the morning he had gone for his job at the Jayanti Soma Patel Angadia Firm. The staff of the firm
viz. Shaileshbhai Babulal Patel the Manager, Champakbhai Nai, Natubhai Patel and Manishkumar Sureshbhai Patel were present and were engaged
in their work. At that time, at around 1 o'clock in the afternoon, an employee from Best Chasma Ghar from Gurunanak Chowk, Palanpur, came to
their firm to take delivery of a parcel, whereupon the Manager handed over the parcel to the employee of Best Chasma Ghar and told him that on
previous day, that is, on 10.2.2009 they had taken a parcel from that shop, however, the payment was outstanding and asked him to pay the same.
Thereupon, the person paid Rs.40/- in respect of the parcel received on the the earlier day and took the parcel and went away. After the employee
from Best Chasma Ghar reached the shop with the parcel, Hirenbhai Rajendrabhai Joshi (accused No.2) from Best Chasma Ghar made a phone call
to the office of the angadia (courier) firm and told them that the payment for the parcel received on the previous day was already made and as to why
they had again taken payment from their employee, whereupon Shaileshbhai Patel had stated that there was no objection in case the payment was
made on the previous day and that their money would remain deposited with them and when the next time another parcel is received, they would give
credit of the same, whereupon Hirenbhai Joshi had disconnected the phone. Thereafter, immediately at around 01:15 p.m. Hirenbhai Joshi personally
came to their office and angrily told Shaileshbhai Patel the Manager that when the money for the parcel was already given on the previous day, why
had they charged Rs.40/- from their employee for the parcel, whereupon Shaileshbhai tried to explain to him peacefully that their money would be
returned to them and that the money which was taken today would be given credit of and would be kept as a deposit and would be set off against the
next parcel that is received, whereupon Hirenbhai Joshi got provoked and started hurling abuses at Shaileshbhai and became violent, whereupon the
staff which was present there intervened and tried to placate him and asked him as to why he was quarrelling, Shaileshbhai had already told him that
money would be credited in their account, whereupon Hirenbhai Joshi went out of their office to the gallery and had talked to his father Rajendrabhai
Ganpatram Joshi of Best Chasma Ghar and called him.
At around 1:30 p.m. Rajendrabhai Ganpatram Joshi of Best Chasma Ghar came there and Hirenbhai told him that Shaileshbai Patel the Manager
had abused him and given fisticuffs. Upon his making such allegations, Rajendrabhai Ganpatram Joshi and his son Hiren approached the Manager
Shaileshbhai, and Rajendrabhai asked him as to why they had assaulted his son and took out a revolver from the waist of his pant and with a view to
kill Shaileshbhai Patel the Manager, shot one round and thereafter immediately again loaded the revolver whereupon the staff was frightened.
Hirenbhai told the staff members that if they spoke loudly his father would shoot them. Thereafter both of them left the office. Thereafter they found
the Manager Shaileshbhai Patel had sustained a bullet injury on the left side of his chest, and hence they lifted him and took him to Palanpur Civil
Hospital where he was given treatment.
Pursuant to the charge-sheet being filed in the matter, the case was committed to the Court of Sessions. Upon conclusion of the trial the appellant
Rajendrakumar came to be convicted of the offence under sections 307, 452 and 506(2) of the Indian Penal Code and section 30 of the Arms Act,
1959 and was sentenced to simple imprisonment for a period of four years and a fine of Rs.3000/- and in default of payment of fine to undergo further
simple imprisonment for six months for the offence under section 307 IPC, to one year's simple imprisonment and a fine of Rs.2000/- and in default
undergo further simple imprisonment for six months for the offence under section 452 IPC, to six months simple imprisonment and a fine of Rs.2000/-
and in default to undergo further simple imprisonment for six months for the offence under section 506(2) IPC and to three months simple
imprisonment and a fine of Rs.1000/- and in default to undergo further simple imprisonment for six months for the offence under section 30 of the
Arms Act.
In the cross case, the offence alleged is under sections 143, 504, 506(2) of the Indian Penal Code wherein there are five accused, out of whom,
Chetankumar Uttamlal Khatri and Sailesh Babulal Patel are the accused No.1 and 5. By a judgment and order dated 26th May, 2011 passed by the
learned 7th Additional District and Sessions Judge, Banaskantha at Palanpur in Sessions Case No.141 of 2009, all the accused have been acquitted.
Mr. Digant Popat, learned advocate for the appellant Rajendrakumar alias Raju Ganpatram Joshi in Criminal Appeal No.953 of 2011 and
respondent in Criminal Appeal No.1110 of 2011 submitted that during the pendency of the appeals, the parties have amicably resolved the issues
between them which is reduced in writing and has already been produced on the record of the case. It was submitted that the compromise be taken
into consideration and the sentence awarded by the trial court be reduced to the period undergone.
6.1 In support of such submission, the learned advocate placed reliance upon the decisions of the Supreme Court in the cases of Unnikrishnan v. State
of Kerala and another, (2018) 15 SCC 343, Puttaswamy v. State of Karnataka and another, (2009) 1 SCC 711, Badrilal v. State of M.P., (2005) 7
SCC 55 and Bankat v. State of Maharashtra, (2005) 1 SCC 343 ,wherein the Supreme Court, while maintaining the conviction, has reduced the
sentence keeping in view the settlement arrived at between the parties.
6.2 Reliance was also placed upon the decision of a learned Single Judge of this court in the case of Vijaybhai Trikambhai Patel v. State of Gujarat
rendered on 9.4.2013 in Criminal Appeal No.532 of 2002 wherein the court keeping in view the decision of the Supreme Court in the case of Ishwar
Sing v. State of Madhya Pradesh, 2009 (2) GLH 92, as well as certain decisions of this court, reduced the sentence while upholding the conviction.
6.3 It was submitted that in similar circumstances, the Supreme Court as well as the learned Single Judge of this court have reduced the sentence to
the period undergone and that in the present case also in the light of the compromise arrived at between the parties, the sentence awarded by the trial
court be reduced to the period undergone.
6.4 He has further submitted that insofar as the acquittal appeals are concerned, the offences involved therein are compoundable and in view of the
compromise between the parties the offences be compounded and the appeals be disposed of accordingly.
Mr. P. P. Majumdar, learned advocate appearing on behalf of the original complainant and the respondents in the acquittal appeals, submitted that in
view of the compromise arrived at between the parties, the sentence awarded by the trial court be reduced to the period undergone and the acquittal
appeals be disposed of in view of the settlement.
Vehemently opposing the conviction appeal and the proposal submitted by the learned advocates for the appellant and the original complainant, Mr.
H. K. Patel, learned Additional Public Prosecutor submitted that an offence under section 307 IPC is an offence against the State and that considering
the manner in which the offence has been committed, namely that the appellant Rajendrakumar had gone to the premises of the courier firm armed
with a revolver, which clearly shows that he had gone there with the intention of killing someone, the offence in question is a serious one and not an
offence under section 307 IPC simpliciter but an offence under section 307 IPC read with section 30 of the Arms Act, and hence, the sentence does
not require to be reduced as suggested by the learned advocate for the appellant.
8.1 It was further submitted that in the present case, the State of Gujarat has filed enhancement appeal, inasmuch as, the sentence awarded by the
trial court to the appellant herein was highly disproportionate to the gravity of the offence committed by him. It was submitted that the decisions on
which reliance has been placed by the learned advocate for the appellant would have no applicability to the facts of the present case, inasmuch as, this
case is not a case where it is only the convict who has preferred an appeal against his conviction, but a case where, considering the gravity of the
offence, the State of Gujarat has filed an enhancement appeal seeking enhancement of the sentence awarded by the trial court.
8.2 Reliance was placed upon the decision of the Supreme Court in the case of State of Madhya Pradesh v. Laxmi Narayan and others, rendered on
5.3.2019, in Criminal Appeals No.349 of 2019 with 350 of 2019, wherein the court has held that offences under section 307 IPC would fall in the
category of heinous and serious offences and, therefore, are to be generally treated as crime against the society and not against the individual alone.
The court held that normally the High Court should refrain from exercising its power under section 482 of the Code as in such cases the trial court
would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under section 307 IPC is committed
or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High
Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been
convicted by the trial court.
8.3 It was submitted that, therefore, when the charge under section 307 IPC has been proved by the prosecution and conviction is already recorded of
a heinous crime, there is no question of sparing the appellant who has been found to be guilty of such crime. It was submitted that, therefore, having
regard to the role played by the appellant, it is evident that he had come with the firm intention of committing the offence and this court should not take
a lenient view and reduce the sentence to the sentence undergone, and, on the contrary, the appeal by the State for enhancement of the sentence is
required to be allowed and the sentence awarded by the trial court is required to be enhanced.
8.4 The attention of the court was invited to the reasoning adopted by the trial court while awarding sentence of four years’ simple imprisonment
for the offence under section 307 IPC, to submit that the trial court after finding that the offence in question is a grievous one, was not justified in
giving such a reduced sentence and that the appellant is liable to be sentenced to the maximum punishment under section 307 IPC.
This court has considered the submissions advanced by the learned advocates for the respective parties and has perused the record to the extent
pointed out to the court.
A perusal of the record of the case show that while it is true that the appellant Rajendrakumar has used a revolver in the commission of the
offence, it is equally true that there was also a cross case wherein the employees of the courier firm are arraigned as accused and appeals have been
preferred by Rajendrakumar as well as the State against the judgment and order of acquittal. The evidence on record reveals that the incident took
place at the premises of the courier firm where the son of the appellant had gone to inquire about some disputed amount, whereupon some altercation
took place and the appellant's son made a phone call to him and told him that he was beaten by the employees of the courier firm (the accused in the
cross case), whereupon the appellant arrived at the scene and after some altercation fired one shot from the revolver, which injured Shaileshbhai. The
appellant has admitted the fact regarding having used the revolver in the first information report lodged by him against the accused in the cross case
and further appears to have immediately gone to the police station. The incident took place on 11.2.2009 and ten years have rolled by since then. The
parties who have had business relations prior to the incident, as is evident from the contents of the first information report, have in the meanwhile,
amicably settled the differences between them.
A compromise agreement has been placed on record which has been executed by Chetankumar Uttamlal Khatri (the complainant in the conviction
appeal) and Shaileshbhai Babulal Patel (the victim in the conviction appeal) on one side and Rajendrakumar @ Rajubhai Ganpatbhai Joshi (the
appellant in the conviction appeal) and his son Hiren Rajendrakumar Joshi (co-accused) whereby the parties have agreed to amicably settle the
dispute between them.
It is further recorded in the agreement that with the object that cordial relations are always maintained between the parties who are engaged in
business in the same town and have had business relations since a long time, the parties have decided to forget the alleged incident as a bad dream
and forget the bitterness of the past forever and once again restore business as well as personal relations with each other. It is further recorded that
both the sides do not have any dispute or ill will towards each other and have cordial relations with each other. Thus, a long time has elapsed since the
incident, thereafter the parties have amicably resolved the differences between them and the relations between them are cordial.
The Supreme Court in the case of Gulab Das and others v. State of Madhya Pradesh., (2011) 10 SCC 765, has held that it has been ruled in a long
line of decisions that offences which are not compoundable under section 320 of the Code cannot be allowed to be compounded even if there is any
settlement between the complainant on the one hand and the accused on the other. However, the court was of the view that the
settlement/compromise arrived at between the parties can be taken into consideration for the purpose of determining the quantum of sentence to be
awarded to the appellants therein.
In Ram Ekbal Upadhya v. State of Bihar, (2001) 10 SCC 233, the Supreme Court held thus:-
“2. Having considered the case with two rival versions of the same occurrence and on the fact situation in this case we think that the offence
under Section 307 of the Indian Penal Code as found by the courts below can be altered to Section 326 of the Indian Penal Code. The one injury
which is described as a grievous hurt is the loss of the index finger of one of the injured. Though we don't have full materials regarding the injuries
sustained by the accused it is an admitted fact that they have also sustained injuries in the same occurrence. Considering all these aspects we alter the
section of offence to Section 326 of the Indian Penal Code.
Now coming to the question of sentence we are told that both sides have now come to terms. A joint application has been filed for showing the fact
of settlement. The injured are represented in this Court by a counsel and he also confirms the fact that disputes have been settled between the two
warring groups.
In view of the changed situation and also on the peculiar facts and circumstances of this case we are of the opinion that the sentence can be
reduced to imprisonment for a period already suffered by the appellants (we are told that the appellants have already undergone imprisonment for
about 4 months). We, therefore, dispose of this appeal in the above terms.
In Unnikrishnan v. State of Kerala, (2018) 15 SCC 343, the Supreme Court held thus:-
“9. In the case on hand, the petitioner is convicted for the offence punishable under section 394 IPC and is sentenced to two years' rigorous
imprisonment. We are aware that the said offence is not compoundable within the scope of Section 320 CrPC.
In a series of decisions i.e. Bharat Singh v. State of M.P.; [1990 Supp SCC 62],R am Lal v. State of J&K [(1999) 2 SCC 213,] Puttaswamy v.
State of Karnataka [(2009) 1 SCC 711], this Court allowed the parties to compound the offence even though the offence is non-compoundable
depending on the facts and circumstances of each case. In some cases this Court while imposing the fine amount reduced the sentence to the period
already undergone.
What emerges from the above is that even if an offence is not compoundable within the scope of Section 320 of the Code of Criminal Procedure,
the Court may, in view of the compromise arrived at between the parties, reduce the sentence imposed while maintaining the conviction.
Having regard to the facts of the present case, while taking into account the settlement arrived at between the parties and also considering the
affidavits filed before us by each one of the applicants by way of joint application, we allow the application seeking permission to compound the
offences.â€
In Badrilal v. State of M.P., (2005) 7 SCC 55, a joint petition of compromise had been filed on behalf of the parties in which prayer had been made
for recording the compromise. The Supreme Court held that the offence under section 307 IPC is not a compoundable one, therefore, compromise
cannot be recorded, but at the same time, it is well settled that while awarding sentence the effect of compromise can be taken into consideration. It
was stated that the appellant therein remained in custody for a period of about 14 months and there is no allegation that he assaulted the deceased. In
the facts and circumstances of the case, the court was of the view that the ends of justice would be met in case the sentence of imprisonment
awarded against the appellant by the trial court and reduced by the High Court is further reduced to the period already undergone.
In Bankat and another v. State of Maharashtra, (2005) 1 SCC 343, the court held thus:-
“10. It is vehemently contended by the learned counsel for the appellants that as the dispute was amicably settled and the matter was
compromised, the High Court ought to have granted permission to compound the offences and ought not to have convicted the appellants and imposed
the sentence. For this purpose, reliance is placed upon the decisions of this Court in Ram Pujan v. State of U.P (1973 (2) SCC 456) andM ahesh
Chand v. State Rajasthan (1990 Supp SCC 681). As against this, learned counsel for the respondent submitted that the offence under Section 326 IPC
is not compoundable and the High Court has rightly rejected the application for compounding the same. He, for this purpose, relied upon the judgment
of this Court in Ram Lal v. State of J&K (1999 (2) SCC 213) wherein after referring to Section 320 (9) of the Code the Court observed that the
decision in Mahesh Chand's case (supra) was rendered per incuriam.
In our view, the submission of the learned counsel for the respondent requires to be accepted. For compounding of the offences punishable under
the IPC, a complete scheme is provided under Section 320 of the Code. Sub-section (1) of Section 320 provides that the offences mentioned in the
Table provided thereunder can be compounded by the persons mentioned in column 3 of the said Table. Further, sub- section (2) provides that the
offences mentioned in the Table could be compounded by the victim with the permission of the court. As against this, sub-section (9) specifically
provides that ""no offence shall be compounded except as provided by this section"". In view of the aforesaid legislative mandate, only the offences
which are covered by Table 1 or Table 2 as stated above can be compounded and the rest of the offences punishable under the IPC could not be
compounded.
Further, the decision in Ram Pujan's case (supra) does not advance the contention raised by the appellants. In the said case, the Court held that
the major offences for which the accused have been convicted were no doubt non-compoundable, but the fact of compromise can be taken into
account in determining the quantum of sentence. In Ram Lal's case (supra) the Court referred to the decision of this Court inY . Suresh Babu v. State
of A.P.(JT (1987) 2 SC 361) and to the following observations made by the Supreme Court in Mahesh Chand's case (supra) and held as under :
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 offence.
and held as under:
“We are unable to follow the said decision as a binding precedent. Section 320 which deals with 'compounding of offences' provides two Tables
therein, one containing descriptions of offences which can be compounded by the person mentioned in it, and the other containing descriptions of
offences which can be compounded with the permission of the court by the persons indicated therein. Only such offences as are included in the said
two Tables can be compounded and none else.â€
In the case of Y. Suresh Babu's (supra) the Court has specifically observed that the said case ""shall not be treated as a precedent"". The aforesaid
two decisions are based on facts and in any set of circumstances, they can be treated as per incuriam as pointed attention of the Court to sub-section
(9) of Section 320 was not drawn. Hence, the High Court rightly refused to grant permission to compound the offence punishable under Section 326.
We reiterate that the course adopted in Ram Pujan's case (supra) and Mahesh Chand's case (supra) was not in accordance with law.
The above position was elaborately indicated by a three-Judge Bench of this Court in Surendra Nath Mohanty and Anr. vs. State of Orissa (1999
(5) SCC 238).
However, considering the fact that the parties have settled their dispute outside the court, the fact that 10 years have elapsed from the date of the
incident, and the further fact that the appellants have already undergone several months' imprisonment, ends of justice would be met if the sentence of
imprisonment is reduced to the period already undergone besides imposing a fine of Rs.5000/- on each of the accused under Section 326 read with
Section 34 IPC. In default of payment of fine, the appellants concerned shall undergo imprisonment for a further period of six months. We also refrain
from imposing any separate sentence on the other counts of offences. Out of the fine amount, if realised, a sum of Rs. 4000/- also be paid to each of
the injured as compensation.â€
Thus, the consistent view of the Supreme Court is that even if the parties have compromised the matter, an offence which is not compoundable
under section 320 of the Code cannot be compounded. The court, however, has held that the compromise arrived at between the parties can be taken
into consideration while considering the quantum of sentence to be awarded to the appellant.
In the present case, there are cross cases and the incident appears to have occurred in the heat of the moment. The parties have subsequently
amicably resolved the differences between them and are maintaining cordial relations. In these circumstances, if the appeal is decided on merits and
the sentence awarded is maintained or enhanced, it would create discord between the parties and unsettle the cordial relations between them.
Considering the fact that the appellant Rajendrakumar alias Raju Ganpatram Joshi does not have any criminal antecedents nor has he misused his
liberty when he was on bail and more particularly considering the settlement between the parties, the court is of the opinion that the interest of justice
would best be served if the sentence awarded by the trial court is reduced to the period undergone. At the same time, the nature of the offence also
cannot be overlooked, and hence, it is deemed appropriate to enhance the amount of fine imposed by the trial court.
Insofar as the decision of the Supreme Court in the case of State of Madhya Pradesh v. Laxmi Narayan (supra) on which reliance has been
placed by the learned Additional Public Prosecutor is concerned, the same relates to a case where the court has held that a conviction cannot be set
aside in view of compromise arrived at between the parties and that the offence under section 307 IPC not being a compoundable offence, the
conviction cannot be set aside. In the facts of the present case, the parties do not seek setting aside of the conviction based on the compromise but
have only prayed for reduction of the sentence awarded by the trial court. Under the circumstances, the said decision would have no applicability to
the facts of the present case.
Insofar as Criminal Appeals No.953 of 2011 and 1236 of 2011 challenging the acquittal of the accused in the cross case are concerned, the
offences alleged are under section 143, 504 and 506(2) of the Indian Penal Code which are compoundable offences. Insofar as Criminal Appeal
No.953 of 2011 which has been filed by Rajendrakumar alias Raju Ganpatram Joshi (the appellant in the conviction appeal) is concerned, the learned
advocate for the appellant does not press the appeal in view of the compromise arrived at between the parties. Insofar as Criminal Appeal No.1236 of
2011 filed by the State is concerned, the offences in question being compoundable, in view of the compromise arrived at between the accused and the
complainant, the offences are permitted to be compounded under section 320 of the Code.
In the light of the above discussion, Criminal Appeal No.645 of 2011 is allowed to the following extent:
While maintaining the order of conviction and sentence recorded by the learned Seventh Adhoc Additional District and Sessions Judge, Banaskantha
at Palanpur vide judgment and order dated 26.05.2011 in Sessions Case No.83 of 2009, the sentence awarded to the appellant Rajendrakumar alias
Raju Ganpatram Joshi is hereby reduced to the period undergone. However, the total fine of Rs.8,000/- imposed by the Sessions Court is enhanced to
Rs.50,000/-.
In the light of the fact that the court has partly allowed the appeal preferred by the Rajendrabhai Ganpatram Joshi and reduced the sentence
awarded by the learned Additional Session Judge, Criminal Appeal No.1110 of 2011 filed by the State seeking enhancement of the sentence, is hereby
dismissed.
Criminal Appeal No.953 of 2011 is hereby dismissed as not pressed.
The request of the respondents (original accused) in Criminal Appeal No.1236 of 2011 filed by the State of Gujarat against their acquittal and the
original complainant Rajendrabhai Ganpatram Joshi, to permit compounding of the offences under sections 143, 323, 504 and 506(2) of the Indian
Penal Code under section 320 of the Code of Criminal Procedure is accepted in view of the compromise in writing arrived at between the parties. In
view thereof, Criminal Appeal No.1236 of 2011 challenging the acquittal of the respondents therein does not survive and is disposed of accordingly.