1 cr-apeal-530-96 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPEAL NO. 530 OF 1996 WITH CRI.APPLICATION NO. 1249 OF 2010 Ramesh Timayya Ghate ] Aged about 30 years, ] residing at Vadar Galli, ] Daund, Tal. Daund, Dist. Pune ]..Appellant Vs. The State of Maharashtra ]..Respondent .... Mr. Suresh M.Sabrad Adv. for Appellant Mr. S.A.Shaikh APP for State Mr. V.V.Purwant Adv. for complainant .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : OCTOBER 13, 2010 ORAL JUDGMENT: 1 The appellant-original accused has challenged the judgment and order dated 3rd September, 1996 in Sessions Case No. 57 of 1993 passed by the learned Addl. Sessions Judge Baramati, Dist. Pune. By the said judgment and order, the appellant came to be convicted for the 2 cr-apeal-530-96 offence under Section 304-II of IPC and he came to be sentenced to RI for five years and to pay a fine of Rs.1000/- i/d RI for six months. 2 The prosecution case briefly stated is as under: On the day of incident at about 9 p.m. Raju brother of PW 11 Babita went to watch TV. Within 5 to 10 minutes, he returned home. He laid down on the cot. Immediately, thereafter, the appellant followed him and he started giving fist blows on the chest and stomach of Raju. Thereafter the appellant brought Raju out of his house. Even in the lane, he assaulted Raju with fist blows on his chest and stomach. Raju somehow got himself released and ran away. After some time, Raju told that he was feeling uneasy and hence, he was rushed to the hospital. However, when he was taken to the hospital, Doctor pronounced him as dead. Hence, FIR came to be lodged against the appellant. After completion of investigation, charge sheet came to be filed. 3 Charge under section 302 came to be framed against the appellant. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence, the learned Sessions Judge held the appellant guilty for the offence under Section 304-II of 3 cr-apeal-530-96 IPC and imposed the sentence on the appellant as stated in paragraph 1 of this judgment. Hence, this appeal. 4 The appellant has also preferred Cri. Application No. 1249 of 2010 wherein he has prayed for bail. 5 I have heard the learned advocate for the appellant, the learned advocate for the complainant and the learned APP for the State. I have perused the judgment and the evidence produced by the parties. 6 The learned advocate for the appellant stated that there was no knowledge on the part of the appellant that his act would cause death of Raju or that his act would cause such bodily injury as is likely to cause death. He pointed out no weapon was used by the appellant and the only external injuries sustained by Raju are three abrasions which were on the left upper arm, on the right forearm and on the right elbow i.e. on non-vital parts of the body. 7 However, it is a fact that on account of fist blows, the right lobe of the liver of Raju ruptured which resulted in his death but there is no material at all on record that the appellant knew that Raju had a liver 4 cr-apeal-530-96 problem. There does appear to be some merit in the submission that the appellant did not intend to cause death of Raju nor had any knowledge that his act would cause death of Raju. 8 Thereafter, the learned advocate for the appellant submitted that he does not wish to make any submission on the merits of this case and he only wishes to make submission in relation to quantum of punishment imposed on the appellant. He has submitted that the appellant has been in custody for six months and looking to the fact that the incident took place on 8.7.1993, the sentence of imprisonment be reduced to the period already undergone by the appellant. The learned advocate for the complainant who is the mother of the deceased, also states that the matter has been amicably settled and the accused be acquitted on account of the compromise. Affidavit of Smt. Sunita has been filed to that effect. The said affidavit is taken on record and marked "X" for identification. She has further stated that the incident is of the year 1993 and sufficient period has passed and due to intervention of the senior members of the family and other respectable persons, she is of the opinion that there should be harmony between both families by putting an end to the dispute. Hence, she has prayed that conviction of the appellant be set aside 5 cr-apeal-530-96 and the appellant be released. 9 However, it is seen that the appellant- accused has been convicted under Section 304-II of IPC which is a non-compoundable offence, hence, I cannot acquit him on the basis of the said compromise. However, useful reference may be made to the decision of the Supreme Court in Salim and others Vs. State of M.P. reported in 1995 Supp (4) SCC Page 631, wherein similar facts arose. In the said case, the appellants were convicted under Section 307 read with Section 34 of IPC. The Apex Court has observed thus: . "We cannot acquit the accused persons on the basis of compromise. However, as held by this Court in Ram Pujan and other Vs. State of U.P. the fact that they have compromised the matter and have patched up their differences and the fact that since then they have been living together happily, has relevance so far as the question of sentence is concerned". 10 So also in the case of Sanjit Datta Vs. State of Tripura and another; (2007) 3 Supreme Court Cases (Cri.) 172, the parties had prayed for compounding of the offence under Section 457 of IPC. The Supreme Court observed that Section 457 of IPC is non-compoundable, however, if the offence is non-compoundable, 6 cr-apeal-530-96 while awarding sentence, the Court can take into consideration the effect of compounding. Hence, in the said case, the period of imprisonment was reduced to three months which was the period already undergone by the accused. 11 The ratio of the above judgments squarely applies to the present case. Moreover, the punishment provided for offence under Section 304-II of IPC is upto ten years or with fine or with both. It is seen that only sentence of fine can also be imposed under Section 304-II of IPC. Admittedly, the appellant has undergone six months of imprisonment. Looking to the above facts, I am inclined to reduce the sentence of imprisonment to the period already undergone by the appellant. Hence, the following order: ORDER 1) In the result, the judgment and order of conviction under Section 304-II of IPC passed by the Addl. Sessions Judge, Baramati in Sessions Case No. 57 of 1993 is confirmed. However, the sentence imposed on the appellant i.e. RI for five years is reduced to the period of imprisonment already undergone by the appellant. The fine amount of Rs.1000/- is maintained. 2) Appellant be released forthwith if not required in any other 7 cr-apeal-530-96 case. 3) Appeal is partly allowed. 4) Cri. Application No. 1249 of 2010 is disposed of as infructuous. [ SMT. V.K.TAHILRAMANI, J.]