HASI MOHAN BARMAN AND ANR. v. STATE OF ASSAM AND ANR

Citation: [2007] 11 S.C.R. 1135

Court: Supreme Court of India

Bench: G.P. MATHUR, ALTAMAS KABIR

Case summary

HASI MOHAN BARMAN AND ANR. v. STATE OF ASSAM AND ANR.pdf

Judgment text

HASI MOHAN BARMAN Ai""JD ANR. v. STATE OF ASSAM AND ANR. NOVEMBER 13, 2007 t [G. P. MATHUR AND ALTAMAS KABIR, JJ. ] Penal Code, 1860-s. 313 rlw. s. 34-Non-compoundable offence ofcausing miscarriage of woman without her consent-Principal accused wasparamour ofthe victim-Courts below convicted him and a co-accused-Meanwhile, victim marriedprincipal accitsed-Shefiled affidavit before Supreme Court stating that she had entered into a compromise and wanted criminal case against both accused to be withdrawn-Effect ofthe subsequent developments ofmarriage and compromise-Held: Affidavit filed by victim cannot be utilizedfor acquitting the accused-Conviction maintained, but in interest of justice, sentence reduced to period already undergone~Code of Criminal Procedure, 1973-s. 320. PW-1 got pregnant through Appellant No. 1, her paramour, who wanted PW-1 to abort the child. As PW-1 declined to do so, Appellant No. 1 with the help ofAppellant No.

2 allegedly caused miscarriage ofthe pregnancy without the consent ofPW-1. Trial Courtconvicted both Appellants unders. 313 r. w. s. 34 IPC. High Court maintained the conviction. During pendency of the case, PW-1 married Appellant No. 1. She filed an affidavit before this Court stating that she had entered into a compromise and wanted the criminal case pending against Appellant No. 1 (now her husband) and Appellant No. 2 to be withdrawn. The question which arose for consideration is whether in view ofthe said subsequent developments ofmarriage and compromise, conviction ofthe Appellants is liable to be set aside. Partly allowing the appeal, the Court HELD: 1. A perusal of Section 320, CrPC shows 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 ofrecording a fmding ofacquittal in favour ofthe accused appellants. [Para 8) [1139-A, BJ 2.

In the present case, the complainant PWl and the principal accused (Appellant No. 1) having already married it will be in the interest ofjustice if tlte sentence is reduced to the period already undergone. The conviction ofthe appellants underSection313 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. [Para 12] [1140-B] Ram Pujan and Ors. v. State of Uttar Pradesh, [1973] 2 SCC 456; Surendra Nath Mohanty andAnr. v. State ofOrissa, [1999] 5 SCC 238; Bankat and Anr. v. State ofMaharashtra, [2005] 1·SCC 343, Badrilalv. State ofA1. P. , [2005) 7 SCC 55 andJetha Ram and Ors. v. State ofRajasthan, [2006) 9 SCC 255, relied on. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1534of2007. From the final Judgment and Order dated 2. 1. 2007 ofthe High Court ofGauhati at Guwahati in Criminal Appeal No. 372 of2001. P. K. Goswami, K. T. S. Tulsi (A. C. ), Rajiv Mehta, A.

Henry, B. Aggrawal, Gaurave Bhargava and Evneet Uppal for the Appellants. Jai Prakash Pandey and Avijit Roy (for Corporate Law Group) for the Respondents. The Judgment ofthe Court was delivered by G. P. MATHUR, J. 1. Leave granted. 2. This appeal, by special leave, has been preferred against the judgment and order dated 2. 1. 2007 ofGauhati High Court by which the appeal preferred by the appellants was disposed ofwith the modification that the sentence offive years R. I. and fine ofRs. 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 ofRs. 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 thereofPW-1 became pregnant.

The villagers put pressure upon Hasi Mohan Barman to marry PW-I 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-I 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 coaccused 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. 1will marry her they entered into sexual relationship and as a result whereof she became pregnant. Thereafter, the appellant No.

1put pressure upon her to abort the child but she did not agree. On the night ofoccurrence the appellant No. I along with his brother forcibly took her to the pharmacy ofco-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 ofappellant 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 his clinic y \ 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-1on22. 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 ofincomplete abortion i. e. she was pregnant. " 6. The High Court, after a thorough examination ofthe evidence, has recorded a finding that PW-1 was pregnant through the appellant Hasi Mohan Barr. 1an who wanted PW-1 to abort the child. As PW-1 declined to do so, Hasi Mohan Barman with the help ofAbinash Biswas caused miscarriage ofthe pregnancy without the consent ofPW-1. The High Court accordingly held that it was established beyond any shadow ofdoubt 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 ofRs. 7,000/- to three years R. I. and a fine ofRs. 5,000/- ofboth the appellants. 7.

It appears that during the pendency of the case the complainant Haleswari Bamian married appellant No. 1Hasi Mohan Bamian and both ofthem 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 Bamian and the appellantNo. 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 ofthe affidavit given by PW-1 Haleswari Bamian. The foamed 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 ofthe same, namely, that she and Hasi Mohan Barman were living peacefully as husband and wife. In view of ,.. this development that PW-1 Haleswari Bamian and appellant No.

1Hasi 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 ofthe appellants should be set aside. 8. Section 320 ofCode ofCriminal 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 ofthat 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- 1or the affidavit filed by her cannot be utilized for the purpose ofrecording a finding ofacquittal in favour ofthe 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 Ors. v. 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 RI. The High Court took into consideration the compromise between the accused appellant and the injured and reduced the sentence to two years RI. This Court, after observing that the fact ofcompromise can be taken into account in determining the quantum ofsentence, 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 Anr. v. State ofOrissa, [1999] 5 SCC 238 is a decision of a Bench of three learned Judges. It was observed that in view ofthe legislative mandate contained in Section 320 ).. Cr. P. C.

an offence can be compounded only in accordance with the provisions ofthe said section. The Court followed the view taken in the case ofRam Pujan (supra) and having regard to the fact that the parties had compromised and a period of ten years had elapsed from the date ofthe incident reduced the sentence of five years R. L imposed under Sections 307 and 326 IPC to the period ofsentence already undergone which was three months and also imposed fine ofRs. 5,000/-. 11. There are several other decisions ofthis Court wherein factor ofcompromise has been taken into consideration and the sentence has been reduced mostly to the period already undergone and they are Bankat and Anr. , v. State ofMaharashtra, [2005] 1 sec 343, Badrilal V. State of MP. , [2005] ·7 SCC 55 and Jetha Ram and Ors. v. 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 ofjustice ifthe sentence is reduced to the period already undergone. The appeal is accordingly partly allowed. The conviction ofthe 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 upori the appellants is also set aside. The appellants are on baiL Their sureties and bail bonds are discharged. B. B. B. Appeal partly allowed.