Holding

A non‑compoundable offence such as IPC s.313 cannot be acquitted on the basis of the victim’s consent, but the court may reduce the sentence in the interest of justice when a genuine compromise exists.

Summary

The appellant Hasi Mohan Barman, who was in a relationship with PW‑1, allegedly forced her to abort a pregnancy by administering injections with the help of co‑accused Abinash Biswas, leading to a conviction under IPC s.313 r.w. s.34. While the trial and High Courts upheld the conviction, the sentence was reduced. During the pendency of the case, PW‑1 married appellant No.1 and filed an affidavit stating a compromise and seeking withdrawal of the criminal proceedings. The Supreme Court examined whether the subsequent marriage and compromise could nullify the conviction, noting that s.313 IPC is a non‑compoundable offence under CrPC s.320 and thus cannot be set aside by the victim’s consent. However, the Court held that the compromise could be considered for sentencing, reducing the term to the period already served and setting aside the fine. The conviction was maintained, but the sentence was reduced to about ten months already served, and the appeal was partly allowed.

Issues considered

Whether the victim's post‑conviction marriage to the principal accused and her affidavit of compromise can lead to acquittal in a non‑compoundable offence under IPC s.313.
Whether the conviction under a non‑compoundable offence can be set aside on the ground of compromise.
Whether the court may reduce the sentence of a convicted person in view of a compromise between the complainant and the accused.

Legislation cited

Code of Criminal Procedure, 1973s. 319, s. 320
Indian Penal Code, 1860s. 313, s. 34

Subjects

non‑compoundable offenceIPC s.313miscarriage without consentcompromisesentence reductionmarriage between complainant and accusedCrPC s.320criminal lawvictim consentappeal

Judgment

HASI MOHAN BARMAN Ai""JD ANR. A
v.
STATE OF ASSAM AND ANR.

NOVEMBER 13, 2007
t
B
[G.P. MATHUR AND ALTAMAS KABIR, JJ.]

Penal Code, 1860-s. 313 rlw. s. 34-Non-compoundable offence
of causing miscarriage of woman without her consent-Principal
accused was paramour ofthe victim-Courts below convicted him and c
a co-accused-Meanwhile, victim marriedprincipal accitsed-She filed
affidavit before Supreme Court stating that she had entered into a
compromise and wanted criminal case against both accused to be
withdrawn-Effect of the subsequent developments of marriage and
compromise-Held: Affidavit filed by victim cannot be utilized for D
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 E
No.1 with the help of Appellant No.2 allegedly caused miscarriage
of the pregnancy without the consent of PW-1. Trial Court convicted
both Appellants unders.313 r.w. s.34 IPC. High Court maintained
the conviction.
F
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. G
The question which arose for consideration is whether in view
of the said subsequent developments of marriage and compromise,
conviction of the Appellants is liable to be set aside.

1135 H
1136 SUPREME COURT REPORTS [2007] 11 S.C.R.

A 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
B be utilized for the purpose ofrecording a fmding ofacquittal in favour
of the 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 of justice if tlte sentence is reduced to the period already
C undergone. The conviction of the 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
D 456; Surendra Nath Mohanty and Anr. v. State ofOrissa, [1999] 5 SCC
238; Bankat and Anr. v. State of Maharashtra, [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.
E CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1534of2007.
From the final Judgment and Order dated 2.1.2007 of the High Court
ofGauhati at Guwahati in Criminal Appeal No. 372 of2001.
F 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.

G The Judgment of the 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 of Gauhati High Court by which the
H appeal preferred by the appellants was disposed of with the modification
HASIMOHANBARMANv. STATE[G.P.MATHUR,J.] 1137

that the sentence of five years R.I. and fine ofRs.7,000/- imposed upon A
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 B
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-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 C
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 D
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.
E
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. I along with his brother forcibly F
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 G
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 H
y
\
1138 SUPREME COURT REPORTS [2007] 11 S.C.R.

A 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
B 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,
c 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 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
D 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 ofRs.5,000/- of both the appellants.
7. It appears that during the pendency of the case the complainant
E Haleswari Bamian married appellant No. 1 Hasi Mohan Bamian 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 Bamian and the appellant No. 2 Abinash Biswas
to be withdrawn as the entire matter had been compromised and both
F 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 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
G 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 Bamian 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
H allowed and the conviction of the appellants should be set aside.
HASIMOHANBARMANv. STATE[G.P.MATHUR,J.] 1139

8. Section 320 of Code of Criminal Procedure says that the offences A
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- B
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 c
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 D
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 of compromise
can be taken into account in determining the quantum of sentence, reduced E
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 23 8 is a decision of a Bench of three learned Judges. It was
observed that in view of the legislative mandate contained in Section 320
).. F
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.L imposed under
G
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 H
1140 SUPREME COURT REPORTS [2007] 11 S.C.R.

A and Anr., v. State ofMaharashtra, [2005] 1 sec 343, Badrilal V. State
of MP., [2005] · 7 SCC 55 and Jet ha Ram and Ors. v. State of
Rajasthan, [2006] 9 SCC 255.
12. Following the view taken in the above noted cases we are of
B the opinion that the complainant and the principal accused having already +-
married it will be in the interest ofjustice 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
C 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.