Madras High Court
Rajesh vs State Represented By on 29 November, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 29.11.2021.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.No.263 of 2019
and
Crl.M.P.No.12131 of 2021
1. Rajesh
2. Ramesh
3. Kumaresan
4. Periyathambi
5. Ramasamy
6. Shanmugam ... Appellants
vs.
State represented by
The Deputy Superintendent of Police,
Kaveripattinam Police Station,
Krishnagiri District.
(Crime No.504/2017) ... Respondent
Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, to call for the entire records in connection with the
S.C.No.114 of 2017 on the file of the learned Principal Sessions
Judge, Krishnagiri, Krishnagiri District and set aside the Judgment
dated 09.04.2019.
For Appellants : Mr.E.Kannadasan
For Respondent : Mr.S.Sugendran
Government Advocate (Crl.Side)
For petitioners in
CrL.M.P.No.12131/2021: Mr.V.Parthiban
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2
JUDGMENT
The Appeal is filed to call for the entire records and set aside
the Judgment in S.C.No. 114 of 2017 by the learned Principal
Sessions Judge, Krishnagiri, Krishnagiri District
2. Brief facts of the case is as under:-
(i) The Deputy Superintendent of Police, Kaveripattinam Police
Station has filed the final report against the accused. As per the final
report, the victims belong to Adi Dravidar Community (SC) and the
appellants/accused belong to Vanniyar Community (MBC). The de
facto complainant and the other injured witnesses are the residents of
Ambedkar Street, Kaveripattinam and the accused are residents of
nearby Chettimarampatti Village.
(ii) On 26.06.2017 at about 3.00 p.m., the de facto
complainant, along with his friends, had gone to take bath at
Thenpennai river and were searching for falling coconuts from the
coconut trees. At that time, the appellants/accused 1, 3, 4 & 6 had
questioned the de facto complainant and his friends and scolded them
in filthy language, calling them by their caste name in order to
humiliate them in the eyes of public and also assaulted by hands. In
continuance of the above said offence, accused 3 and 5 had come to
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the spot and A1 assaulted the de facto complainant with wooden stick
on his head and thereafter A4 assaulted the victim Vijay with a
coconut mattai on his chin and face; The first accused assaulted
the victim Vijay with the wooden stick on his neck and thereafter the
A2 assaulted Naveen Kumar with the wooden reaper stick on the back
of his head and right shoulder; A5 and A6 have assaulted the de facto
complainant and the witness with their hands and kicked them; A3
assaulted the de facto complainant and Naveen Kumar with the
Coconut mattai and caused injuries. A1 and A2 threatened the de
facto complainants with dire consequences to do away with them and
based on the complaint given by PW1, a case in Crime No.504 of
2017 was registered against the accused for offence under Sections
147, 148, 294(b), 323, 324 and 506(ii) IPC and Section 3(1)(r)(s) of
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,
1989. The respondent, after completion of investigation, filed the final
report.
(iii) On receipt of the final report and relevant records relied on
by the prosecution, the Trial Court had taken the case in S.C.No.114
of 2017 after providing free copy of the statement of witnesses and
documents relied on before the prosecution at free of cost under
Section 207 Cr.P.C.
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(iv) The Trial Court, after hearing the arguments of the learned
Public Prosecutor appearing for the prosecution and the learned
counsel appeared for the accused, found that prima facie case is
made out against the accused and framed charge as under:-
Rank of the Conviction
Accused
A1, A3, A4 & Sections 3(1)(r) & (s) of SC/ST Act, 323 of IPC (each
A6 3 counts)
A1to A6 Section 147 of IPC
A1 Section 324 IPC
A2 to A6 Section 324 of IPC r/w 149 (2 counts)
A2 Section 325 of IPC
A1, A3 to A6 Section 325 r/w Section 149 IPC
A4 Section 324 IPC
A1 to A3, A5 Section 324 r/w Section 149 IPC
& A6
A3 Section 324 IPC
A1, A2, A4 to Section 324 r/w Section 149 IPC
A6
A5 & A6 Section 323 IPC (each 3 counts)
A1 to A4 Section 323 r/w Section 149 IPC
A1 to A6 Section 506 (ii) IPC
(v) The charges were read out and explained and when the
accused were questioned, they pleaded not guilty and claimed to be
tried and therefore summons were issued to the prosecution
witnesses and in order to prove the guilt of the accused, the
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prosecution had examined PW1 to PW15 and marked Ex.P1 to Ex.P30
and cited M.Os. 1 and 2 and on the side of the defence, no document
has been marked.
(vi) The Trial Court, taking into consideration the evidence and
after hearing the arguments on both sides, convicted and sentenced
the accused as under:-
"(i) A1, A3, A4 and A6 are found guilty for the
offence under section 3(1)(r) and (s) of SC/ST Act
and sentenced to undergo rigorous imprisonment for
one year each and to pay a find of Rs.1000/- each
(Rs.2000/-) in default to undergo simple
imprisonment for one month each (Total Rs.8000/-)
(ii) A1 to A6 are found guilty for the offnece under
Section 147 IPC and imposed to pay a fine of
Rs.1000/- each in default to undergo simple
imprisonment for one month (Total Rs.6000/-)
(iii) A1, A3, A4 and A6 are found guilty for the
offence under Section 323 IPC (3 counts) each and
imposed a fine of Rs.1000/- for each count. Totally,
Rs.3000/- for each accused in default to undergo
simple imprisonment for one month each (Total
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Rs.12,000/-)
(iv) A1 to A6 are found guilty for the offence under
Section 506(ii) IPC and sentenced to undergo
rigorous imprisonment for one year and to pay a fine
of Rs.1000/- each in default to undergo simple
imprisonment for one month each. (Total Rs.6000/-)
(v) A2 is found guilty for the offence under Section
325 IPC and sentenced to undergo rigorous
imprisonment for one year and to pay a fine of
Rs.1000/- in default to undergo simple imprisonment
for one month (Rs.1000/-)
(vi) A1 is found guilty for the offence under Section
324 IPC (2 counts) and sentenced to undergo simple
imprisonment for six months for each count and
imposed a fine of Rs.1000/- for each count. Totally,
Rs.2000/- in default to undergo simple imprisonment
for one month (Total Rs.2000/-)
(vii) A3 and A4 are found guilty for the offence under
Section 324 IPC and sentenced to undergo simple
imprisonment for six months each and imposed a
fine of Rs.1000/- each in default to undergo simple
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imprisonment for one month each (Total Rs.2000/-)
The sentences shall run concurrently."
3. Against the conviction and sentence, the present Criminal
Appeal has been filed.
4. When the matter is taken up for final hearing, the learned
counsel for the appellants would submit that the appellants and the
de facto complainant and other injured persons belong to two
different communities, they are residents of the same locality and
due to the intervention of elders and well wishers belonging to both
the communities, the parties have arrived at a compromise by
mutual resolution and peaceful settlement and they had decided to
maintain harmony and happy relationship between the people
belonging to both the communities in the village and they had
decided to compound the offence by mutual resolution.
5. He would further submit that A1, A2 and A4 surrendered
before the Court and they were released on bail on the same day and
A3, A5 and A6 surrendered before the Court and they were in judicial
custody for one week. He would also submit that the three victims in
the case including the de facto complainant had filed individual
Affidavits before this Court agreeing for compounding the offence and
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they had also filed a joint memo of compromise and they are present
before this Court to report about the compromise. He would further
submit that towards compensation and medical expenses incurred by
the victims, the appellants have provided Rs.4,10,000/- to the
victims and they had also accepted the same.
6. Mr.S.Sugendran, learned Government Advocate (Criminal
Side) appearing for the respondent would submit that though the
joint compromise has been effected between the parties, the offence
alleged against the accused not compoundable in nature. However,
he would submit that when enquired, P.Ws.1, 2 & 3, the victims had
submitted that they had entered into compromise and they had
received Rs.4,10,000/- from the appellants towards compensation
and medical expenses. He would further stated that the parties had
entered into a compromise to bring the peace and harmony in the
village.
7. Mr.V.Parthiban, learned counsel for the victims 1, 2 & 3
would submit that the victims belong to the oppressed community
and due to the intervention of elders and well wishers in both the
communities in the village, in order to effect peace and harmony in
the village, they had agreed to settle the dispute among them. He
would further submit that the appellants and the de facto complainant
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are youngsters and the incident had occurred in a spur of moment
and due to the compromise effected, there is peace in the village
between the people of both the communities and the compromise is
effected out of free will without any compulsion or coercion from
anybody.
8. Mr.E.Kannadasan, learned counsel for the appellants would
submit that though the offence are not compoundable in nature,
taking into consideration, the compromise effected between the
parties, the conviction may be confirmed, but, taking a sympathetic
view, the quantum of sentence may be reduced to the period already
undergone. In support of his contention, the learned counsel for the
appellants referred to the judgments:-
i) Ishwar Singh v. State of Madhya Pradesh ((2008) 15 SCC 667
ii) Nanda Gopalan v. State of Kerala (2015) 11 SCC 137
iii) Bhagyan Das vs. State of Uttarakhand and another (2019) 4
SCC 354
iv) Shankar v. State of Maharashtra (2019) 5 SCC 166
v) Murali vs. State (2021) 1 SCC 726
9. Heard the learned counsel appearing for the parties.
10. The victims and the appellants/accused are present before
this Court and they have filed a joint memo of compromise and the
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injured victims viz., PWs 1 to 3 have filed a separate affidavits. The
relevant portion of the joint compromise memo is extracted
hereunder:-
"3. The Appellants/accused No.1 to 6 and PW1, PW2
and PW3 submit that in view of the advise given by
the panchayathar, village elders and Oor Naattamai,
PW1, PW2 and PW3 were agreed to settle their issue
amicably, further after the incident there was no
issues arise between them and they are maintaining
cordial relationship with each other. Hence they
voluntarily come forward and filing this joint
compromise memo without any coercion or under
influence."
11. The relevant portion of the Affidavits filed by PWs 1 to 3,
the injured victims, is extracted for ready reference:-
"ehd; gzpe;J rkh;g;gpj;Jf; bfhs;tJ ahbjdpy; nky;
KiwaPl;lhsh;fs; rhh;gpy; Ch; ehl;lhik. g";rhaj;jhh; kw;Wk;
Ch; Kf;fpa!;jh;fs; Kd;dpiyapy; Ch; g";rhaj;J
Tl;lg;gl;lJ/ nkYk; Ch; ehl;lhik mth;fs; gpur;rpidia
nkYk; nkYk; tsh;;f;fhky; RK:fkhf nghf brhy;yp
tw;g[Wj;jpajd; nghpYk; nkYk; eh';fSk;
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nky;KiwaPl;lhsh;fSk; ,e;j rk;gtj;jpw;F gpwFk; mz;zd;
jk;gp nghy; gHfp tUtjhYk; eh';fSk; mjw;F
xg;g[f;bfhz;L nkYk; ,e;j rk;gtj;jpw;F gpwF
nky;KiwaPl;lhsh;fs; nehpilahfnth kiwKfkhfnth
vdf;Fk; kw;w rhl;rpfSf;Fk; ve;j xU gpur;rida[k;
bra;atpy;iy vd;gjhYk ehDk; mth;fSk; ey;y el;g[ld;
gHfp tUfpd;w fhuzj;jpdhy; ,e;j tHf;if thg!; bgw;Wf;
bfhs;s rk;kjpf;fpd;nwd;/
ehd; gzp;e;J rkh;g;gpj;Jf; bfhs;tJ ahbjdpy; ehd;
,e;j gpukhz gj;jpuj;jpid ahUila tw;g[Wj;jypd;;wpa[k; vd;
KG kd rk;kjj;jpd; nghpy; ifbahg;gk; ,Lfpd;nwd;/"
12. This Court enquired PWs 1 to 3, the injured victims and
they have submitted that in order to effect peace and harmony in the
village, at the instance of elders and well wishers of both the
communities, they had entered into the compromise and now they
are living peacefully in the village.
13. This Court is aware that the appellants are convicted for
offences which are non-compoundable and in such circumstance it
would not be proper to compound the offences which are non-
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compoundable ignoring the statutory provisions. However, in several
matters, the Hon'ble Apex Court as well as this Court had held that
the voluntarily compromise entered into between the parties can be
taken as the relevant factor for consideration of quantum of sentence.
14. The Hon'ble Apex Court in a recent decision in Shankar
and Others v. State of Maharashtra and Another
MANU/SC/0334/2019 : (2019) 5 SCC 166 : LNINDU 2019 SC 73,
by referring to various earlier decisions, taking into consideration the
compromise between the parties in non compoundable offences and
had reduced the sentences. It would be relevant to refer to the
following paragraphs of the above judgment:
"9. The appellants have filed a memo of compromise
stating therein that they have compromised the matter
with the second respondent Namdeo (complainant).
Mr. Shakul R. Ghatole, learned counsel appearing for
the second respondent has stated that the second
respondent Namdeo (complainant) is an aged person
and he has reconciled with his brother Appellant 1,
Shankar Harale and voluntarily entered into
compromise and submitted that the said compromise
be taken into consideration.
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1 0 . In Ishwar Singh v. State of M.P. [Ishwar Singh v.
State of M.P. MANU/SC/8126/2008 : (2008) 15 SCC
667 : (2009) 3 SCC (Cri) 1153], this Court held that in
a non-compoundable offence the compromise between
the parties is a relevant factor to be taken into
consideration in considering the quantum of sentence.
In paras 13 and 14 of Ishwar Singh [Ishwar Singh v.
State of M.P., MANU/SC/8126/2008 : (2008) 15 SCC
667 : (2009) 3 SCC (Cri) 1153] it was held as under:
(SCC p. 670)
13. In Jetha Ram v. State of Rajasthan [Jetha Ram v.
State of Rajasthan MANU/SC/2586/2005 : (2006) 9
SCC 255 : (2006) 2 SCC (Cri) 561], Murugesan v.
Ganapathy Velar [Murugesan v. Ganapathy Velar
MANU/SC/2358/2000 : (2001) 10 SCC 504 : 2003 SCC
(Cri) 1032] and Ishwarlal v. State of M.P. [Ishwarlal v.
State of M.P. (2008) 15 SCC 671 : (2009) 3 SCC (Cri)
1156] 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 compound-
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able. But it was also stated that in Mahesh Chand v.
State of Rajasthan [Mahesh Chand v. State of
Rajasthan MANU/SC/0268/1988 : 1990 Supp SCC 681
: 1991 SCC (Cri) 159] such offence was ordered to be
compounded."
14. 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 circumstance
which the Court may keep in mind."
15. In the recent decision in Murali vs. State (2021) 1 SCC
726, the Apex Court has held that the fact of amicable
settlement/compromise between the parties can be a relevant factor
for the purpose of reduction in quantum of sentence of convicts even
in serious non-compoundable offences.
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16. In view of the above, the Criminal Appeal is partly allowed
and while the conviction and the sentences of fine imposed on the
appellants for the above said offences are confirmed, the sentence of
imprisonment imposed upon them for the said offence alone is
modified and reduced to the period already undergone. The
appellants need not surrender. The fine amount shall be paid to the
Legal Services Authority of the Court concerned. The connected
Miscellaneous Petition is closed.
29.11.2021.
Index: Yes/No.
Internet: Yes/No.
ssk/ham
To
1. The Judge, Principal Sessions Court,
Krishnagiri, Krishnagiri District.
2.The Deputy Superintendent of Police,
Kaveripattinam Police Station,
Krishnagiri District.
3.The Public Prosecutor,
High Court of Madras.
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A.D.JAGADISH CHANDIRA, J.
ssk
Crl.A.No.263 of 2019
and
Crl.M.P.No.12131 of 2021
29.11.2021.
https://www.mhc.tn.gov.in/judis
