Jagdish vs The State Of M.P.
2023 Latest Caselaw 6443 MP

                                                             1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                      BEFORE
                                          HON'BLE SHRI JUSTICE ANIL VERMA
                                                 ON THE 21 st OF APRIL, 2023
                                             CRIMINAL APPEAL No. 381 of 2000

                           BETWEEN:-
                           1.    JAGDISH S/O NAVALRAM, AGED ABOUT 60
                                 YEARS, OCCUPATION : SECURITY GUARD IN VAN
                                 VIBHAG, R/O: VILLAGE MAKRAWDA HALL
                                 MUKAM DILIP MARG, SAILANA, DIST. RATLAM
                                 (MADHYA PRADESH)

                           2.    RAMESH S/O JAGDISH SHARMA, AGED ABOUT 30
                                 YEARS, OCCUPATION: DOCTOR, R/O: VILLAGE
                                 MAKRAWDA, DISTRICT RATLAM (MADHYA
                                 PRADESH)

                                                                                        .....APPELLANTS
                           (BY SHRI ABHAY SARASWAT - ADVOCATE)

                           AND
                           1.    THE STATE OF M.P. THRU. P.S. SAILANA, DIST.
                                 RATLAM (MADHYA PRADESH)




                                                                                       .....RESPONDENT
                           (SHRI RAHUL SOLANKI - GOVERNMENT ADVOCATE)

                                 This appeal coming on for admission this day, th e court passed the
                           following:
                                                              ORDER

Appellants have filed this Criminal Appeal preferred under Section 320(2) of the Code of Criminal Procedure, 1973 (In short 'Cr.P.C.') being aggrieved by the impugned order of conviction and sentence dated 27.03.2000 passed by the III Additional Sessions Judge, Ratlam, whereby both the appellants have

Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 21-04-2023 19:13:41

been convicted for the offence under Sections 452 of IPC and have been sentenced to undergo 1 month R.I. with fine of Rs.500/- each and appellant Ramesh further sentenced under Section 326 of IPC for 4 years R.I. with fine of Rs.1,000/- and appellant Jagdish has been sentences under Section 324 of IPC with 2 months R.I. with fine of Rs.200/- with usual default stimulation.

The prosecution story in brief is that on 04.03.1999, at about 11 AM, complainant Deepak Sharma doing his work at village Makrwda, at that time appellants/ accused alongwith co-accused came there armed with sword, dhariya and farsi and started assaulting him, due to which complainant sustained injuries on right hand, neck, palm of both the hands and thumb of his

right hand has been cut down. When his father and Gangabai came there, then accused persons fled away from the spot. After that complainant lodged an FIR at P.S. Sailana. His MLC was conducted by Dr. Shailesh Dange (PW-1) and he found four injuries on his body. During the investigation co-accused were arrested on the basis of their discovery statement. Aforesaid weapons were also recovered from their position.

After completion of investigation, charge-sheet has been filed against the appellants and other accused persons before the III ASJ, Ratlam.

On 06.04.2023, this Court had permitted both the parties to appear before the Principal Registrar for verification of the compromise. An application under Section 320(2) of Cr.P.C. have jointly filed by both the parties. As per the report submitted by the Principal Registrar both the parties have entered into a compromise with their mutual consent voluntarily, without any threat, inducement or coercion.

Hon'ble Supreme court in the matter of Ishwar Singh Vs. State of Madhya Pradesh reported in AIR 2009 SCC 675 in a similar case where the Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 21-04-2023 19:13:41

offence under Section 307 of IPC was committed and parties had compromised the matter while noting the fact that though the offence is not compoundable but sentence can be reduced in view of the compromise, has held as under:

13. Now, it cannot be gainsaid that an offence punishable under Section 307, IPC is not a compoundable offence. Section 320 of the Code of Criminal Procedure, 1973 expressly states that no offence shall be compounded if it is not compoundable under the Code. At the same time, however, while dealing with such matters, this Court may take into account a relevant and important consideration about compromise between the parties for the purpose of reduction of sentence.

14. In Jetha Ram v. State of Rajasthan, (2006) 9 SCC 255, Murugesan & Ors. v. Ganapathy Velar, (2001) 10 SCC 504 and Ishwarlal v. State of M.P., JT 1988 (3) SC 366 (1), this Court, while taking into account the fact of compromise between the parties, reduced sentence imposed on the appellant- accused to already undergone, though the offences were not compoundable. But it was also stated that in Mahesh Chand v. State of Rajasthan, AIR 1988 SC 2111, such offence was ordered to be compounded.

15. In our considered opinion, it would not be appropriate to

order compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned counsel for the appellant deserves consideration that while imposing substantive sentence, the factum of compromise between the parties is indeed a relevant

Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 21-04-2023 19:13:41

circumstance which, the Court may keep in mind.

16. In the instant case, the incident took place before more than fifteen years; the parties are residing in one and the same village and they are also relatives. The appellant was about 20 years of age at the time of commission of crime. It was his first offence. After conviction, the petitioner was taken into custody. During the pendency of appeal before the High Court, he was enlarged on bail but, after the decision of the High Court, he again surrendered and is in jail at present. Though he had applied for bail, the prayer was not granted and he is not released on bail. Considering the totality of facts and circumstances, in our opinion, ends of justice would be met if the sentence of imprisonment awarded to the appellant (Accused No.1) is reduced to the period already undergone.

17. For the foregoing reasons, the appeal deserves to be partly allowed and accordingly allowed by maintaining the conviction recorded by the trial court and confirmed by the Appellate Court but by reducing the sentence already undergone by the appellant. The sentence of payment of fine is not disturbed. If the appellant has not paid the amount of fine, he will pay such amount within four weeks from today. Similarly in the matter of Bankat and another Vs. State of Maharashtra reported in 2005 Cr.L.R. (SC) 17 where the conviction was under Sections 325 and 326 read with section 34 of IPC it has been held that:

“16. However, considering the fact that the parties have settled their dispute outside the court, the fact that 10 years have elapsed from the date of the incident, and the further fact that the appellants have already undergone several months' imprisonment, ends of justice Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 21-04-2023 19:13:41

would be met if the sentence of imprisonment is reduced to the period already undergone besides imposing a fine of Rs.5000/- on each of the accused under Section 326 read with Section 34 IPC. In default of payment of fine, the appellants concerned shall undergo imprisonment fora further period of six months. We also refrain from imposing any separate sentence on the other counts of offences. Out of the fine amount, if realised, a sum of Rs. 4000/- also be paid to each of the injured as compensation.â€Â​ In the matter of Hasi Mohan Barman and another Vs. State of Assam and another reported in (2008) 1SCC (Cri.) 161 where the offence was under Section 313 read with Section 34 of IPC considering the similar issue the Hon’ble Supreme court has held that :

“10. The first decision on this point was rendered by this Court in Ram Pujan and others vs. State of Uttar Pradesh, 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 appellants/accused 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 is a decision of a Bench of three learned Judges. It was observed that in view of the legislative mandate contained in Section 320 Cr.P.C. an offence

Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 21-04-2023 19:13:41

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 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, Badrilal vs. State of M.P. and Jetha Ram and others vs. State of Rajasthan.

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.â€Â​ In the present case also the parties have duly entered the compromise and compromise has been verified by this court and has been found to be voluntarily entered into by the complainant.

From perusal of the record, it reveals that there was no enmity between the complainant and appellants and the incident had taken on a trivial issue. Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 21-04-2023 19:13:41

Both the parties belongs to the same family and they are close relatives. Appellants are facing trial for last 24 years. Appellants have already undergone three and half months period in custody, therefore, it would be appropriate to reduce their jail sentence to the period already undergone by them. However, the fine imposed upon both the appellants is maintained and if the appellants fail to pay the fine amount, they shall undergo imprisonment as awarded by the trial Court.

Having regard to the aforesaid, the appeal is partly allowed by maintaining the conviction but reducing the sentence to the period already undergone by them and by maintaining the fine amount. The appellants Jagdish and Ramesh are on bail. Their sureties and bail bonds stand discharged.

Certified copy as per rules.

(ANIL VERMA) JUDGE Anushree

Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 21-04-2023 19:13:41