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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  No(s). 390  OF 2019 (Arising out of (Crl.) No(s).9920/2018)

SHANKAR & ORS.                                     Appellant(s)

                               VERSUS

THE STATE OF MAHARASHTRA & ANR.                   Respondent(s)

J U D G M E N T

BANUMATHI, J.:

(1) Leave granted.

(2) Being aggrieved by the conviction under Sections 436 and

323 I.P.C. read with Section 34 I.P.C. the appellants no.1 to 3

have preferred this appeal.

(3) Appellant  no.1-Shankar  @  Shankar  Harale  and  respondent

no.2-Namdeo @ Namdeo Satwaji Harale (complainant) are the real

brothers.  Their agricultural lands are adjacent to each other

and there was dispute between them on account of boundary of

the  field.   On  21st May,  2009,  respondent  no.2-Namdeo

(complainant)  along  with  his  two  sons  went  to  the  Tehsil

Office.  At about 5.00 p.m. the appellants went to the hut of

the second respondent (complainant) and there was wordy quarrel

between the appellants and Dhondubai (PW-3) and Kanupatra @

Kanopatra  (PW-4)  who  are  wife  and  daughter-in-law  of  the

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complainant.  During  the  wordy  quarrel,  appellant  no.2-Vivek

pelted stones and the same hit on Dhondubai (PW-3).  On being

exhorted by appellant no.1-Shankar,  appellant no.3-Parvatibai

wife of appellant no. 1 set fire to the house of the second

respondent-complainant.  On the complaint lodged by the second

respondent-Namdeo  law  was  set  in  motion.  On  completion  of

investigation  charge-sheet  was  filed  against  the  appellants

under sections 436, 323, 504 and 506 IPC.

(4) Based on the evidence of injured witness Dhondubai (PW-3)

and Kanupatra (PW-4) and also taking into consideration the

evidence of Dr. Dattarao Mirzapure (PW-8) who issued injury

certificate to Dhondubai (PW-3), the Trial Court convicted the

appellants under Sections 436 read with section 34 IPC and 323

I.P.C.  read  with  Section  34  I.P.C.  and  sentenced  them  to

undergo rigorous imprisonment for five years and six months

respectively.

(5) In appeal, the High Court affirmed the conviction of the

appellants under Section 436 I.P.C. read with Section 34 I.P.C.

and the conviction under Section 323 I.P.C. and also maintained

the sentence of imprisonment on each of the appellants-accused.

Being aggrieved, the appellants preferred this appeal.

(6) We have heard Mr. Sudhanshu S. Choudhari, learned counsel

appearing for the appellants,  Mr. Venkata Krishna Kunduru,

learned  counsel  appearing  for  the  respondent-State  and  Mr.

Shakul  R.  Ghatole,  learned  counsel  appearing  for  respondent

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no.2 (complainant) and also perused the impugned judgment and

the evidence/materials on record.

(7) Dhondubai  (PW-3)  and  Kanupatra  (PW-4)  are  the  eye-

witnesses to the occurrence.  In her evidence Dhondubai (PW-3)

has stated that appellant no.2-Vivek pelted stones towards her

which  hit  on  her  head  and  that  she  sustained  injuries.

Dhondubai  (PW-3)  further  stated  that  on  being  exhorted  by

appellant  no.1-Shankar  Harale  appellant  no.3-Parvatibai  set

fire  to  her  house.   The  evidence  of  Dhoundubai  (PW-3)  is

corroborated by Kanupatra (PW-4), daughter-in-law of the second

respondent-Namdeo (complainant).

(8) By a careful consideration of evidence of Dhondubai (PW-3)

and Kanupatra (PW-4), it is seen that appellant no.2-Vivek who

is said to have wordy quarrel and pelted stones on Dhondubai

(PW-3). The overt act of setting fire to the house is not

attributed to him by either of the witnesses.  Equally we do

not find any evidence to hold that the second appellant-Vivek

shared only common intention with appellants no.1 and 3 to

invoke section 34 I.P.C. and to maintain the conviction of the

second  appellant-Vivek  under  Section  436  I.P.C.  read  with

Section 34 I.P.C.  The conviction of the second appellant-Vivek

under Section 436 read with Section 34 I.P.C. is therefore set

aside and appeal of second appellant which is allowed to that

extent.

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(9) However, the conviction of appellant no.1-Shankar Harale

and  appellant  no.3-Parvatibai  under  Section  436  read  with

Section 34 I.P.C. is confirmed. But so far as the act of the

second appellant-Vivek hitting Dhondubai (PW-3) with the stone,

the conviction of the second appellant-Vivek under Section 323

I.P.C. is sustained.   

(10) The appellants have filed a memo of compromise stating

therein that they have compromised the matter with the second

respondent-Namdeo  (complainant).   Mr.  Shakul  R.  Ghatole,

learned counsel appearing for the second respondent, has stated

that  the  second  respondent-Namdeo  (complainant)  is  an  aged

person and he has reconciled with his brother-appellant no.1,

Shankar  Harale  and  voluntarily  entered  into  compromise  and

submitted that the said compromise be taken into consideration.

(11) In Ishwar Singh v. State of Madhya Pradesh, (2008) 15 SCC

667, this Court held that in a non-compoundable offence the

compromise between the parties is a relevant factor to be taken

into consideration in considering the quantum of sentence.  In

paras 13 and 14 of Ishwar Singh (supra) it was 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

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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.”

Insofar as the conviction of appellant no.1-Shankar Harale and

appellant no.3-Parvatibai under Section 436 I.P.C. read with

Section 34 IPC it would not be appropriate to compound the

offence which is not compoundable under the Code ignoring the

statutory provisions.  However, taking into consideration the

relationship  of  the  parties  and  the  factum  of  compromise

between  the  parties  which  is  a  relevant  circumstance,  the

sentence of imprisonment imposed upon the appellants no.1 and 3

under Sections 436 read with Section 34 I.P.C. is modified to

the  period  already  undergone  by  them.   Insofar  as  the

conviction  of  the  appellants  no.1  and  3  under  Section  323

I.P.C.  in  view  of  the  compromise  between  the  parties  the

conviction of the appellants under Section 323 I.P.C. is set

aside and they are acquitted of the charge under Section 323

I.P.C. in terms of Section 320(8) of the Cr.P.C.

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(12) So  far  as  the  second  appellant-Vivek  is  concerned  his

conviction under Section 436 read with Section 34 I.P.C is set

aside  and  he  is  acquitted  of  the  charge.   Insofar  as  his

conviction under Section 323 I.P.C. is concerned, in view of

compromise entered into between the parties, the conviction of

the second appellant-Vivek is set aside and he is acquitted

under Section 320(8) of the Cr.P.C.

(13) The appeal is partly accordingly allowed.

.........................J.                 (R. BANUMATHI)

.........................J.         (R. SUBHASH REDDY)

NEW DELHI, FEBRUARY 26, 2019.