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CASE NO.: Appeal (crl.)  1534 of 2007

PETITIONER: Hasi Mohan Barman & Anr

RESPONDENT: State of Assam & Anr

DATE OF JUDGMENT: 13/11/2007

BENCH: G.P. Mathur & Altamas Kabir

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.    1534           OF 2007 (Arising out of Special Leave Petition (Crl.) No.2675 of 2007)

G. P. MATHUR, J.

       Leave granted.  2.      This appeal, by special leave, has been preferred against the  judgment and order dated 2.1.2007 of Gauhati High Court by which  the appeal preferred by the appellants was disposed of with the  modification that the sentence of five years R.I. and fine of Rs.7,000/-  imposed upon each of the appellants under Section 313 read with  Section 34 IPC by the learned Additional Sessions Judge, Kokrajhar,  was reduced to three years R.I. and fine of Rs.5,000/-. 3.      The case of the prosecution, in brief, is that the appellant Hasi  Mohan Barman was having love affair with the first informant PW-1  Haleswari Barman, which subsequently developed into physical  relationship and as a result thereof PW-1 became pregnant.  The  villagers put pressure upon Hasi Mohan Barman to marry PW-1  which he declined.  He asked PW-1 to abort the child which she  refused to do.  Thereafter, in the night of the incident Hasi Mohan  Barman took PW-1 Haleswari Barman to the pharmacy of co-accused  Abinash Biswas, who administered certain injection whereupon PW-1  became unconscious and the child was aborted.  She was administered  Saline and the appellant Hasi Mohan Barman kept her at ’Pampghar’  for about nine days wherefrom she was taken to her parents house.   After few days PW-1 lodged an FIR against both the appellants.  The  police, after investigation, submitted charge-sheet only against Hasi  Mohan Barman but subsequently co-accused Abinash Biswas was  also summoned under Section 319 Cr.P.C. to face the trial. 4.      In the trial PW-1 Haleswari Barman deposed that on the  promise that the appellant No. 1 will marry her they entered into  sexual relationship and as a result whereof she became pregnant.   Thereafter, the appellant No. 1 put pressure upon her to abort the child  but she did not agree.  On the night of occurrence the appellant No. 1  along with his brother forcibly took her to the pharmacy of co-accused  Abinash Biswas and she was forcibly administered an injection due to  which she became unconscious.  When she regained consciousness  she saw that saline was being administered to her.  After some time on  the asking of appellant No. 1 co-accused Abinash Biswas  administered another injection due to which she became unconscious.   When she regained consciousness she found that she had lost her  pregnancy and then she was taken to the house of her parents.   5.      PW-4 Dr. Dilip Bhowmik, an Ayurvedic Physician, has  deposed that the appellant Hasi Mohan Barman had brought PW-1 to

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his clinic and on examination he had found that PW-1 was running  pregnancy of 4-5 months.  As she had some problem he gave some  medicine to her.  PW-3 Dr. Rezaul Karim examined PW-1 on  22.3.1995, i.e., more than one month after the abortion and found as  follows: - "There was active slight bleeding as per vagina.  For  confirmation D & E (Dilatation and Evacuation) done  and found placental parts inside the uterine cavity which  is a sign of incomplete abortion i.e. she was pregnant."

6.      The High Court, after a thorough examination of the evidence,  has recorded a finding that PW-1 was pregnant through the appellant  Hasi Mohan Barman who wanted PW-1 to abort the child.  As PW-1  declined to do so, Hasi Mohan Barman with the help of Abinash  Biswas caused miscarriage of the pregnancy without the consent of  PW-1.  The High Court accordingly held that it was established  beyond any shadow of doubt that both the appellants had committed  an offence under Section 313 IPC.  The High Court thus maintained  the conviction but reduced the sentence from seven years R.I. and a  fine of Rs.7,000/- to three years R.I. and a fine of Rs.5,000/- of both  the appellants. 7.      It appears that during the pendency of the case the complainant  Haleswari Barman married appellant No. 1 Hasi Mohan Barman and  both of them are living as husband and wife.  She filed an affidavit  that she had entered into a compromise and wanted the criminal case  pending against her husband Hasi Mohan Barman and the appellant  No. 2 Abinash Biswas to be withdrawn as the entire matter had been  compromised and both PW-1 and the first appellant were living  peacefully as husband and wife.  This Court passed an order directing  the learned Additional Sessions Judge to verify the correctness of the  affidavit given by PW-1 Haleswari Barman.  The learned Additional  Sessions Judge has sent a report to this Court that PW-1 Haleswari  Barman had verified the affidavit given by her and had deposed about  the correctness of the same, namely, that she and Hasi Mohan Barman  were living peacefully as husband and wife.  In view of this  development that PW-1 Haleswari Barman and appellant No. 1 Hasi  Mohan Barman have married and are peacefully and happily living as  husband and wife it has been submitted that the appeal deserves to be  allowed and the conviction of the appellants should be set aside.  8.      Section 320 of Code of Criminal Procedure says that the  offences punishable under the sections of the Indian Penal Code (45  of 1860) specified in the first two columns of the table next following  may be compounded by the persons mentioned in the third column of  that table.  A perusal of Section 320 will show that the offence under  Section 313 IPC is not compoundable.  Therefore, the consent given  by the wife PW-1 or the affidavit filed by her cannot be utilized for  the purpose of recording a finding of acquittal in favour of the accused  appellants.   9.      There are some decisions of this Court wherein the factor of  compromise between the accused and the complainant (or injured or  person aggrieved) has been taken into consideration for reducing the  sentence. 10.     The first decision on this point was rendered by this Court in  Ram Pujan and others vs. State of Uttar Pradesh (1973) 2 SCC 456,  wherein the trial court had convicted the accused under Section 326  IPC which is a non-compoundable offence and had sentenced the  accused to four years R.I.  The High Court took into consideration the  compromise between the accused appellant and the injured and  reduced the sentence to two years R.I.  This Court, after observing  that the fact of compromise can be taken into account in determining  the quantum of sentence, reduced the sentence to the period already  undergone which was little more than four months and further  imposed a fine of Rs.1500/- on each of the appellants.  Surendra Nath  Mohanty and another vs. State of Orissa (1999) 5 SCC 238 is a  decision of a Bench of three learned Judges.  It was observed that in

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view of the legislative mandate contained in Section 320 Cr.P.C. an  offence can be compounded only in accordance with the provisions of  the said section.  The Court followed the view taken in the case of  Ram Pujan (supra) and having regard to the fact that the parties had  compromised and a period of ten years had elapsed from the date of  the incident reduced the sentence of five years R.I. imposed under  Sections 307 and 326 IPC to the period of sentence already undergone  which was three months and also imposed fine of Rs.5,000/-. 11.     There are several other decisions of this Court wherein factor of  compromise has been taken into consideration and the sentence has  been reduced mostly to the period already undergone and they are  Bankat and another vs. State of Maharashtra (2005) 1 SCC 343,  Badrilal vs. State of M.P. (2005) 7 SCC 55 and Jetha Ram and others  vs. State of Rajasthan (2006) 9 SCC 255. 12.     Following the view taken in the above noted cases we are of the  opinion that the complainant and the principal accused having already  married it will be in the interest of justice if the sentence is reduced to  the period already undergone.  The appeal is accordingly partly  allowed.  The conviction of the appellants under Section 313 IPC is  maintained but the sentence is reduced to the period already  undergone which appears to be about ten months.  The fine imposed  upon the appellants is also set aside.  The appellants are on bail.    Their sureties and bail bonds are discharged.