Sy. Azhar Sy. Kalandar vs The State Of Maharashtra

NON­REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO(S). 988 OF 2021 (Arising out of SLP(Crl.) No(s). 1516 of 2020)

SY. AZHAR SY. KALANDAR ….APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA & ANR. …RESPONDENT(S)

JUDGMENT

Rastogi, J.

1. Leave granted.

2. The appellant, being dissatisfied by the judgment dated

4th January, 2019 passed by the High Court of Judicature at

Bombay, Nagpur Bench, Nagpur upholding the conviction of the

appellant for the offence under Section 307 Indian Penal

Code(hereinafter being referred to as “IPC”) and directed him to suffer Signature Not Verified Digitally signed by NEETU KHAJURIA Date: 2021.09.13 17:26:43 IST Reason:

rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/­

1 with clause of sufferance in default of three months’ rigorous

imprisonment, has preferred this instant appeal.

3. The case of the prosecution is that Gajanan Kute complainant

lodged oral report Exhibit­49 with Police Station Ansing on 11 th May,

2016 contending that Chintaman Dange is his maternal uncle and

very active in social work. Previously the appellant had a quarrel

with Chintaman Dange (injured) because of unlawful construction

raised on Nal Saheb Baba Darga prior to 4­5 months to the incident.

On 11th May, 2016, when a Sandal procession at Ansing reached

Gandhi Chowk at about 7.30 p.m., unknown persons entered into the

procession and the present appellant along with his two other

associates with a sharp­edged weapon stabbed on the stomach of

Chintaman Dange with intent to kill him. The complainant took the

injured to the hospital for treatment. On his report, P.S.O. Ansing

registered Crime No.80/2016 for an offence under Section 307 read

with Section 34 IPC against the accused appellant and other accused

persons vide Exhibit 50. After investigation, the charge­sheet was

filed under Section 307 read with Section 34 IPC. After framing of

charge for the afore­stated offence, the appellant faced the trial.

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4. Relying on the testimony of PW 7 Chintaman Dange (injured

victim) and of the treating Doctor Arvind Kisanrao Adhe (PW11) which

was held to be unimpeachable and stellar, the learned trial Judge

held the appellant guilty and convicted him for offence punishable

under Section 307 IPC to suffer rigorous imprisonment for 10 years

and to pay a fine of Rs. 10,000/­ with default to suffer further three

months’ rigorous imprisonment by a judgment dated 23 rd February,

2018.

5. Unsatisfied by the judgment of the learned trial Judge dated 23 rd

February 2018, the accused preferred appeal before the Nagpur

Bench of High Court of Bombay which, after hearing the parties came

to be dismissed by the judgment impugned dated 4 th January, 2019

assailed in the instant appeal.

6. The record of the case elicits that the finding of both the Courts

are concurrent and without fault. The appellant has not been able to

mount an effective challenge founded upon a question of law and the

learned counsel has very fairly restricted his prayer qua reduction of

sentence only which reveals from the order passed by this Court on

14th February, 2020. By a further order dated 30 th July 2021, PW 7

3 Chintaman Dange(injured victim) was directed to be impleaded as

party respondent. Pursuant thereto, he was impleaded as party to

the present appeal.

7. A joint affidavit has been filed during the pendency of the

proceedings by the wife of the accused appellant and PW 7

Chintaman Dange(injured victim) and it has been stated that they are

residing in the same village and this unforeseen incident has

occurred on account of some misconception and are residing

peacefully even after the unfortunate incident has taken place. The

injured victim has come forward with the request that, as the families

have settled their disputes and almost half of the sentence has been

undergone by the appellant, it may be considered to be sufficient in

due compliance of the judgment impugned upholding conviction

under Section 307 IPC.

8. We have heard learned counsel for the parties and also the

learned counsel for Chintaman Dange(injured victim­respondent no.

2) and with their assistance perused the material available on record.

9. The joint affidavit placed on record makes it clear that the

parties, on the advice of their elders, entered into an amicable 4 settlement. The appellant has apologized for his fault and has taken

responsibility for his action and has maturely sought forgiveness

from the victim. In return, the victim has also voluntarily accepted

the apology while considering the age of the appellant at the time of

the incident and has forgiven him and has come forward without any

reservation to settle the dispute.

10. Even during the course of arguments, learned counsel for the

injured victim has reiterated the same while making his submissions.

11. In almost the same circumstances which have been noticed by

us, a three Judge Bench of this Court in a recent judgment in Murali

Vs. State represented by Inspector of Police1, where the parties

decided to forgive their past and live amicably, this Court has come to

their rescue by interfering in the quantum of sentence which

obviously is not compoundable under Section 320 Cr.P.C. but has

interfered since there is no minimum sentence prescribed. This Court

in Murali(supra), has taken note of the judgment of this Court in

Ram Pujan and Others Vs. State of U.P.2 which was further

1 2021(1) SCC 726 2 1973(2) SCC 456 5 followed by this Court in Ishwar Singh Vs. State of M.P.3 and the

later decisions as referred to in paras 11 and 12 of the judgment has

taken note of the compromise between the parties to reduce the

sentence of the convicts even in serious non­compoundable offences.

The relevant paras are as follows:­

“11. 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 non­compoundable offences.

12. 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.”

12. Taking into consideration the facts of the instant case and the

circumstances arising out of the subsequent events, in our opinion, it

is a fit case to take a sympathetic view and reconsider the quantum

of sentence awarded to the appellant. We have recorded our 3 2008(15) SCC 667 6 satisfaction, based on the reasons, that the parties to the dispute

have mutually settled their disputes and buried their past.

13. The joint affidavit inspires confidence that the apology as

tendered by the appellant has voluntarily been accepted given the

efflux of time and is not a result of any coercion or inducement.

Considering that they are residing in the same village and are

peacefully residing after the uncalled for incident has taken place, in

our view, this appears to be a fit case for reduction of sentence.

14. Considering the overall facts on record and other mitigating

factors and circumstances in which a crime has been committed

including the nature of injury, period during which he remained

under medical treatment, mental agony which the victim suffered and

also the compromise entered into between the parties, while

upholding conviction under Section 307 IPC, we deem it appropriate

to reduce the quantum of sentence imposed on the appellant to five

years rigorous imprisonment and to pay a fine of Rs. 10,000/­ and in

default of payment of fine shall suffer further three months’ rigorous

imprisonment. Ordered accordingly.

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15. The appeal is, therefore, partly allowed.

16. Pending application(s), if any, stand disposed of.

……………………….J. (AJAY RASTOGI)

……………………….J. (ABHAY S. OKA) NEW DELHI SEPTEMBER 13, 2021

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