Arun Chandra Bora Vs. State of Assam - Court Judgment

Excerpt:
- 1. this revision petition has been directed against the judgment and order dated 18.2.97 passed by the learned sessions judge, kamrup at guwahati in crl. a.no. 14/95 confirming the conviction of the accused-petitioner under section 498(a) ipc and modifying the sentence to 3 months' imprisonment and a fine of rs. 1000 in default further imprisonment for rs. 15 days.2. the prosecution case in brief is that the petitioner sri arun kr. bora married one smt. prava bora on 16.6.80 as per hindu rites.thereafter they started living as husband and wife for some time. the petitioner was working as grade iv employee under the forest department, govt. of assam unfortunately the couple were not blessed with any issue. on that stage, the petitioner wanted to marry again to which the wife was objected and thus led to the development of bitter relationship in between husband and wife.3. on 22.2.90 smt. prava bora lodged an f.i.r. with the geeta nagar p.s.alleging inter alia that her husband, the petitioner, tortured her by beating her severely on 21.2.90 and tried to burn her with putting kerosene oil on her person. a case was registered under section 498(a) ipc against the petitioner and investigation was started.4. the case was tried by the judicial magistrate 1st. class, guwahati in cr case no. 774/90. during the trial, the prosecution adduced 8 witnesses when defence none. after the trial, the learned judicial magistrate found the petitioner guilty of the said offence and convicted him under section 498(a) ipc and sentenced to undergo two years s.i. and also to pay a fine of rs. 3000. in default of which he shall have to undergo for further time of 7 days simple imprisonment. 5. being aggrieved by the said conviction and sentence passed on 10.3.95, the petitioner preferred an appeal before the learned sessions judge, kamrup at guwahati in crl. a.no. 14/95 and the learned sessions judge after considering the evidence on record and also hearing both the parties, dismissed the appeal with a slight modification of the sentence. the sentence was modified to the extent of 3 months simple imprisonment and to pay a fine of rs. 1000 in default, to imprisonment for further 15 days. this impugned judgment and order passed by the learned sessions judge dated 10.2.97 is under challenge.6. at the opening of the hearing of this case, mr. kh agarwal, learned counsel appearing on behalf of the petitioner has informed this court that this case relates to a family dispute between the husband and wife who were living separately since 6.2.90. the dispute has gone to that extent that the husband had preferred a petition under section 13 of the hindu marriage act, 1955 for dissolution of his marriage with his wife smt. prova bora before the learned sessions judge, kamrup at guwahati which was later on transferred to the family court, kamrup at guwahati and the case was registered as fc(c) 52/92.7. the said fc(c) 52/92 was decided finally on 13.6.96 by theprincipal judge, family court allowing the petition for dissolution of marriage on consent of both the parties for the ends of justice and directed the petitioner to pay a permanent alimony to smt. prova bora amounting ro rs. 50,000.8. the judgment and order dated 13.6.96 as mentioned above was challenged before the division bench of this court by the petitioner as appellant mainly on the around of permanent alimony which was fixed at rs. 50,000.9. at the time of hearing of the f.a. no. 58/96 by the division bench of this court directed both the parties i.e. the husband and wife to appear personally before the court fixing 13.12.2000. on that day so fixed both the parties appeared before the court personally with their respective counsel and on that occasion a compromise was settled between the parties adopting the principle 'for-give and for-get' to bid total go bye to hatred and bitterness between them and accordingly the matter on being compromised the division bench of this court vide order dated 13.12.2000 passed the following orders which is quoted below :-'13.12.2000 this appeal has been compromised between the parties. a sum of rs. 50,000 (rupees fifty thousand only) has been paid by way of a bank draft by the appellant to the respondent (wife). the appellant (husband) has also agreed to pay another sum of rs. 25,000 (rupees twenty five thousand only) by way of monthly instalment of rs. 1000 (rupees one thousand only) per month to the respondent (wife). the monthly instalment of rs. 1000 (rupees one thousand only) per month will be made by sending a bank draft in the name of the respondent (wife) on or before the 10th of every month. the first instalment would start from the month of january, 2001. in other words, the appellant (husband) would send a draft for rs. 1000 (rupees one thousand only) on or before 10.1.2001 and the last intalment would be sent on or before 10.1.2003. in view of the payment made today and the offer made by the appellant (husband), the respondent (wife) has also shown gesture by undertaking before us that she would compromise the two criminal proceedings pending before this court, namely, crl. revisions no. 380 of 1996 and crl. revision no. 427 of 1997. both the criminal revisions be listed before a single bench of this court on 15.12.2000 after 2.00 p.m.. if the appellant (husband) defaults in making payment of rs. 1000 (rupees one thousand only) in any month, all the proceedings would stand revived.' 10. taking into account of the said judgment passed by the divison bench of this court on compromise, the learned counsel appearing on behalf of the petitioner has submitted before this court that since the matter being compromised between the parties, the present revision petition may also be disposed of in the light of the aforesaid judgment by compounding the offence under section 320 cr.p.c.11. section 320 cr.p.c. provides for compunding 2 categories of offences - one group of offences can be compoundable without the permission of the court and the other group of offences can be compoundable with the permission of the court. save and except the offences and sections mentioned in section 320 cr.p.c. no other offences are compoundable. the present case in hand, the offence is under section 498a ipc. it is needless to say that this offence u/s 498a is not compoundable.12. now the question is whether the offence u/s 498a can be compounded under the provisions of section 320 cr.p.c. the learned counsel appearing for the petitioner submits that section 498a ipc can be allowed to be compounded though it is not a compoundable offence. supporting his argument mr. agarwal, learned counsel for the petitioner has placed reliance on various decisions of the apex court as well as - this court mentioned as follows.13. in maheshchand v. state of rajasthan, reported in air 1988 sc 2111 the apex court held that in a special case the offence which is not compoundable under the law can be permitted to be compromised. relevant paragraphs of the said judgment is quoted as under :-'2. the accused were acquitted by the trial court, but they were convicted by the high court for the offence under section 307 ipc. this offence is not compoundable under law. the parties, however, want to treat it a special case, in view of the peculiar circumstances of the case. it is said and indeed not disputed that one of the accused is a lawyer practising in the lower court. there was a counter case arising out of the same transaction. it is said that the case has already been compromised. the decision of this court in suresh babu v. the state of andhra pradesh. (1987) 2 j.t-361 has been also referred to in support of the plea for permission to compound the offence. 3. we gave our anxious consideration to the case and also the plea put forward for sitting 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 trialcourt shall permit them to compound the offence.' 14. the ratio of maheshchand's case (supra) was accepted in sawaswati sutradhar v. state of tripura, reported in 1998 (3) glj-81 (also in (1999) 1 glr-94) in a decision of this court. this case relates to section 498a ipc. it was held in the said case that the prayer for composition can be accepted in an offence u/s 320 cr.p.c. having regard to the abovementioned judicial decisions, and submission of the learned counsel of the parties, i am of the view that the ratio of those decisions is also applicable to the case in hand.15. further mr. agarwal, learned counsel for the petitioner submits that on merit also the impugned judgments and orders passed by the lower courts below are liable to be set aside and quashed. dwelling on the impugned judgments and orders passed by the learned sessions judge, kamrup as well as the learned judicial magistrate 1st. class, guwahati, the learned counsel stated that both the trial court and appellate court failed to discuss the ingredients of the offence under section 498a ipc and the same is apparent on the face of the record itself. it is submitted that the appellate court instead of discussing the ingredients of the offence u/s 498a ipc deviated itself to give a different picture which is evident from paragraph 12 of the appellate court's judgment.16. be that as it may, since the matter has already been accepted to be compounded u/s 320 cr.p.c. i am not inclined to go into the merits of the case.17. considering the principles laid down in those judicial decision as well as good gesture shown by smt. prava bora as a hindu holly woman who is willing to forgive her husband for his fault, as evident from the judgment in f.a. no. 58/96. i am of the considered view that this is a fit case where the matter can be compromised under section 320 cr.p.c. an an exceptional case.18. for the reasons and discussions indicated above, the impugned judgments and order dated 18.2.97 passed by the learned session judge, kamrup as well as the judicial magistrate 1st. class, guwahati are set aside and quashed on composition and petitioner is acquitted.19. accordingly, this petition is allowed. however, i pass no order as to costs.