Madhya Pradesh High Court
Jayesh vs The State Of Madhya Pradesh on 6 September, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2024:MPHC-IND:25934
1 CRA-5279-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 5279 of 2024
JAYESH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Bharat Yadav - advocate for the appellant.
Ms. Neelu Khetra appearing on behalf of Advocate General.
Ms. Aditi Paliwal appeared for respondent.
Reserved On:28.08.2024
Delivered On: 06.09.2024
JUDGEMENT
1. This criminal appeal is preferred under section 374 of Cr.P.C. by the appellants being aggrieved by the judgment dated 13.04.2024, passed by learned Sessions Judge, District Jhabua (MP), in Sessions Trial No.31/2023, whereby the appellants have been convicted for the offence punishable under Sections 326 (two counts) and 323 of IPC and sentenced to undergo 05 years and one year R.I. each, with total fine of Rs.17000/- each and default stipulation.
2. Before this Court, both the parties have filed an application for compounding the offences. Since, there is cross-case both the parties have compromise the matter against each other.
3. The said application was sent for verification before the Principal Registrar vide order dated 31.05.2024. In compliance to the said order, the Signature Not Verified Signed by: AMIT KUMAR Signing time: 9/6/2024 6:56:57 PM NEUTRAL CITATION NO. 2024:MPHC-IND:25934 2 CRA-5279-2024 appellants appeared through VC from jail and complainant also appeared before the Principal Registrar. The compromise was verified and a report dated 03.06.2024 has been submitted that accused/appellants and the complainant have entered into compromise with mutual consent. There is no dispute remaining between the accused/appellant and the complainant. But as per the aforesaid report, the offence under Sections 326 of IPC is non-compoundable.
4.Counsel for the appellant submits that so far as sentence is concerned, the appellant no.1 and appellant no.2 have already undergone jail sentence of more than two months and 15 days months (Jayesh) and approximately three months and 15 days (Umesh). Compromise has already been done between the parties and therefore, while maintaining the conviction, the jail sentence of appellant no.1 Jayesh may be reduced to the period already undergone by enhancing the fine amount on the basis of compromise.
5. In the course of arguments learned counsel for the appellants has also entreated that appellant no.2 (Umesh) is a government servant, hence in view of the offence and compromise between the parties, he should be given the benefit of Section 4, 5 & 12 of the Probation of Offenders Act, 1958 so that his career of government service would not be affected. Counsel placed reliance upon the judgment passed by Hon'ble Apex Court in the case of Rajbir vs. State of Haryana (AIR 1985 SC 1278) so also the order passed by this Court in the case of Narottam vs. State of M.P. reported as 1995(1) MPWN 238. .
6. Learned counsel for the respondent/state has opposed the prayer. However, counsel for the objector has not objected and fairly admitted that they have compromised the case with the appellants.
Signature Not Verified Signed by: AMIT KUMAR Signing time: 9/6/2024 6:56:57 PMNEUTRAL CITATION NO. 2024:MPHC-IND:25934 3 CRA-5279-2024
7. Nevertheless, the appellants have not impugned the merits of conviction and confined their arguments as to sentencing of the appellants on the basis of compromise application, but still this appellate Court is of the view to examine the sanctity of conviction. On this aspect, I have gone through the order of the trial Court. The prosecution case is not only fortified by the eye-witnesses including the injured persons, but also well supported by medical testimony and documentary evidence adduced before the trial Court. However, looking to the fact that both the parties have compromised the case with leave of this Court and the same has already been verified, both the appellants are acquitted from the charges under Section 323/34 of IPC on the basis of compromise.
8. Now, the Court is turning to the sentencing part of non-compoundable offence under Section 326 of IPC and effect of compromise placed by the complainant/injured and accused persons. In the case of Narinder Singh and Ors Vs. State of Punjab And Anr, 2014 (6) SCC 466 relying on the various judgments, the Apex Court permitted the compounding in a non-compoundable case and quashed the criminal proceedings. The Hon'ble Apex Court in para no.21 has observed as under:-
"21. However, we have some other cases decided by this Court commenting upon the nature of offence under Section 307 of IPC. In Dimpey Gujral case (supra) , FIR was lodged under sections 147,148,149,323,307,552 and 506 of the IPC. The matter was investigated and final report was presented to the Court under Section 173 of the Cr.P.C. The trial court had even framed the charges. At that stage, settlement was arrived at between parties. The court accepted the settlement and quashed the proceedings, relying upon the earlier judgment of this Court in Gian Singh vs. State of Punjab & Anr. 2012 AIR SCW 5333 wherein the court had observed that inherent powers under section 482 of the Code are of wide plentitude with no statutory limitation and the guiding Signature Not Verified Signed by: AMIT KUMAR Signing time: 9/6/2024 6:56:57 PM NEUTRAL CITATION NO. 2024:MPHC-IND:25934 4 CRA-5279-2024 factors are: (1) to secure the needs of justice, or (2) to prevent abuse of process of the court. While doing so, commenting upon the offences stated in the FIR, the court observed:
"Since the offences involved in this case are of a personal nature and are not offences against the society, we had enquired with learned counsel appearing for the parties whether there is any possibility of a settlement. We are happy to note that due to efforts made by learned counsel, parties have seen reason and have entered into a compromise." This Court, thus, treated such offences including one under section 307, IPC were of a personal nature and not offences against the society."
9. Here, it is also poignant that this compromise has been filed at the stage of appeal before this Court. On this aspect, the law laid down by Hon'ble Apex Court in the case of Ishwar Singh vs. State of Madhya Pradesh [AIR 2009 SC 675] is worth to be quoted here as under:
"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 circumstances which, the Court may keep in mind."
10. On this point, the view of Hon'ble Apex Court in the Unnikrishnan alias Unnikuttan versus State of Kerala reported in AIR 2017 Supreme Court 1745 is also worth referring in the context of this case as under:-
"10. In series of decisions i.e. Bharath Singh vs. State of M.P. and Ors., 1990 (Supp) SCC 62, Ramlal vs. State of J & K, (1999) 2 SCC 213, Puttaswamy vs. State of Karnataka and Anr, (2009) 1 SCC 711, this Court allowed the parties to compound the offence even though the offence is a non-compoundable depending on the facts and Signature Not Verified Signed by: AMIT KUMAR Signing time: 9/6/2024 6:56:57 PM NEUTRAL CITATION NO. 2024:MPHC-IND:25934 5 CRA-5279-2024 circumstances of each case. In some cases this Court while imposing the fine amount reduced the sentence to the period already undergone."
11. What emerges from the above is that even if an offence is not compoundable within the scope of Section 320 of Code of Criminal Procedure the Court may, in view of the compromise arrive at between the parties, reduce the sentence imposed while maintaining the conviction."
11. Even this Court in Cr.A. No.268/2016 (Kanha @ Mahesh v/s The State of Madhya Pradesh) decided on 26.08.2017 as well as in Cr.A. No.561/2010 (Radhakrishnan & 3 Others v/s The State of Madhya Pradesh) decided on 18.04.2017 and in CRA No.604/2000 (Aaram singh vs. The State of Madhya Pradesh) decided on 08.08.2019, Sohan Jangu & others vs. State of Madhya Pradesh passed in CRA No.550/2023 on 11.07.2023, has taken a similar view.
12. On this point, this Court is also inclined to quote the excerpt of the judgment rendered by Hon'ble Apex Court in the case of Bhagwan Narayan Gaikwad vs. State of Maharashtra; [2021 (4) Crimes 42 (SC) which is as under:-
"28. Giving punishment to the wrongdoer is the heart of the criminal delivery system, but we do not find any legislative or judicially laid down guidelines to assess the trial Court in meeting out the just punishment to the accused facing trial before it after he is held guilty of the charges. Nonetheless, if one goes through the decisions of this Court, it would appear that this Court takes into account a combination of different factors while exercising discretion in sentencing, that is proportionality, deterrence, rehabilitation, etc.
29. The compromise if entered at the later stage of the incident or even after conviction can indeed be one of the factor in interfering the sentence awarded to commensurate with the nature of offence being committed to avoid bitterness in the families of the accused and the victim and it will always be better to restore their relation, if possible, but the compromise cannot be taken to be a solitary basis until the other aggravating and mitigating factors also support and are favourable to the Signature Not Verified Signed by: AMIT KUMAR Signing time: 9/6/2024 6:56:57 PM NEUTRAL CITATION NO. 2024:MPHC-IND:25934 6 CRA-5279-2024 accused for molding the sentence which always has to be examined in the facts and circumstances of the case on hand."
13. As the offence under Sections 326 of the Indian Penal Code is non- compoundable under Section 320 of the Code of Criminal Procedure, 1973, it is not possible to pass the order of acquittal on the basis of compromise but, it is by now well settled that such a compromise can be taken into account for reduction of sentence. The appellants and the complainant are living in the same society, they are residing happily since last so many years, they want to live with peace, and therefore, to meet the ends of justice, the sentence of imprisonment awarded against the appellant No.1 may be reduced to the period already undergone.
14. In view of the aforesaid principles laid down by Hon'ble Apex Court and by this Court taking into consideration that the incident had taken place in the year 2022 and further the appellant no.1 has already undergone jail sentence of two months and 15 days months (Jayesh) and no fruitful purpose would be served in keeping the appellant in jail even after the compromise between the parties, this Court is of the view that while maintaining the conviction under sections 326 of IPC, the jail sentence of appellant no.1 is reduced to the period already undergone on the basis of compromise by affirming the fine amount of Rs.16000/-.
15. Now coming to the prayer of appellant no.2 Umesh, learned counsel for the appellant submitted that since appellant No.2 is a government servant, he should be given the benefit of Probation of Offenders Act,1958 (hereinafter referred to as 'The Act, 1958') in this regard. On this aspect it is submitted that since no evidence has been filed to indicate any criminal antecedent against appellant no.2, he is entitled to get the benefit of Section 4, Signature Not Verified Signed by: AMIT KUMAR Signing time: 9/6/2024 6:56:57 PM NEUTRAL CITATION NO. 2024:MPHC-IND:25934 7 CRA-5279-2024 15 of The Act, 1958. It is worth to quote hereunder Section 4, 5 and 12 of The Act, 1958:
Section 4:Power of Court to release certain offenders on probation of good conduct:
(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour:
Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2)Before making any order under sub-section (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3)When an order under sub-section (1) is made, the Court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.
(4)The Court making a supervision order under subsection (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other Signature Not Verified Signed by: AMIT KUMAR Signing time: 9/6/2024 6:56:57 PM NEUTRAL CITATION NO. 2024:MPHC-IND:25934 8 CRA-5279-2024 matter as the Court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5)The Court making a supervision order under subsection (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."
Section 5. Power of Court to require released offenders to pay compensation and costs (1) The Court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay
(a) such compensation as the Court thinks reasonable for loss or injury caused to any person by the commission of the offence; and
(b) such costs of the proceedings as the Court thinks reasonable. (2) The amount ordered to be paid under sub- section (1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the Code.
(3) A Civil Court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account any amount paid or recovered as compensation under sub-section (1) in awarding damages.
Section 12 Removal of disqualification attaching to Conviction Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law: Provided that nothing in this section shall apply to a person who, after his release under section 4, is subsequently sentenced for the original offence."
16. On this point, this Court is also inclined to quote the excerpt of the judgment rendered by Hon'ble Apex Court in the case of Rajbir vs. State (Supra) which reads as under:-
Signature Not Verified Signed by: AMIT KUMAR Signing time: 9/6/2024 6:56:57 PMNEUTRAL CITATION NO. 2024:MPHC-IND:25934 9 CRA-5279-2024 "4. From the judgment of the High Court it appears that though the sentence imposed for the offence Under Section 323 of the Code was six months, the appellant and the co-accused had already suffered over one year's imprisonment. Ordinarily, in a situation as here, there would be no need to interfere. Learned counsel for the appellant has, however, pressed the appeal as the appellant is in Government service and if the conviction and sentence are maintained, he would lose his service. Both the parties to the assault were close relations. There is no material on the record to indicate that the appellant had any previous conviction. In the absence of such evidence, we treat the appellant as a first offender. He is entitled to be admitted to the benefits of probation Under Section 3 of the Probation of Offenders Act, 1958, taking into consideration the circumstances of the case, the nature of the offence and the character of the appellant. While maintaining his conviction we direct that he shall be released on probation of good conduct Under Section 4 of the Act. The Chief Judicial Magistrate, Bhiwani, before whom the appellant is directed to appear within four weeks from today shall release him after due admonition. We do not consider it necessary to direct him to enter into a bond in the facts of the case.
5. We are of the view that in the peculiar facts of the case, the conviction should not affect his service. "
17. Similarly, in the case of Narottam vs. State (Supra) the co-ordinate Bench of this Court while granting the benefit of Section 4 of Probation of Offenders Act to the applicant has held as under:
"Reliance was placed on the case of Rajbir vs. State of Haryana reported in AIR 1985 SC 1278. In that case it was held that on facts when the accused was in Government service, the probation could be granted u/s.4 of the Probation of Offenders Act so that his service is not adversely effected. The facts of this case are similar. Both the petitioners are in Government service. There is no criminal history against them. Therefore, they are entitled to be released on probation instead of being sentenced to any imprisonment as fine."
18. In view of the aforesaid principles laid down by Hon'ble Apex Court and by this Court since the appellant No.2 is a Government servant, and Signature Not Verified Signed by: AMIT KUMAR Signing time: 9/6/2024 6:56:57 PM NEUTRAL CITATION NO. 2024:MPHC-IND:25934 10 CRA-5279-2024 he has been convicted for offence under Sections 326 of IPC 1860, since appellant no.2 is also required to be punished with only with compensation amount of Rs.16000./-, under Section 5 of The Act, 1958. It would be appropriate that this appellant no.2 should be given the benefit of Section 5 & 12 of The Act, 1958, as he is in government service. Therefore, in view of the law laid down by Hon'ble Apex Court, his sentence is reduced only to the extent of imposing only compensation amount under Section 5 of The Act, 1958. Looking to the fact that all another appellant no.1 had been imposed with a total amount of Rs.16000/- it will be apposite that appellant no.2 should also be liable for paying the compensation amount of Rs.16000/- for the offence under Section 326 of IPC.
19. In the case at hand, where no evidence has been filed to indicate any criminal antecedent against appellant no.2 Umesh, he is entitled to get the benefit of Probation of Offenders Act, 1958 under the aforesaid provisions.
20. In the upshot of the aforesaid analysis of law and deliberation in entirety, it would be condign to release the appellant No.2 Umesh under the provisions of Section 5 & 12 of 'The Act, 1958' by imposing compensation of Rs.16000/- in the State Exchequer. In the result thereof, it is directed that conviction of appellant no.2 Umesh will not affect his profession and future career in any manner.
21. In case, if the appellants no.1 fail to deposit the aforesaid fine amount within 15 days from today, they shall suffer 15 days S.I., if not already deposited. The compensation amount shall also be deposited by appellant no.2 within 15 Signature Not Verified Signed by: AMIT KUMAR Signing time: 9/6/2024 6:56:57 PM NEUTRAL CITATION NO. 2024:MPHC-IND:25934 11 CRA-5279-2024 from the date of judgement.
22. The amount of fine if already deposited, shall be adjusted.
23. The appellants are already on bail. Their bail bonds would be canceled after depositing the fine amount and compensation with the State Exchequer as well.
24. The judgment of learned trial Court regarding seized property stands confirmed.
25. A copy of this order be sent to the trial Court concerned for necessary compliance.
Pending application, if any shall be closed.
With the aforesaid, the present appeal stands disposed off.
Certified copy, as per rules.
(PREM NARAYAN SINGH) JUDGE AMIT Signature Not Verified Signed by: AMIT KUMAR Signing time: 9/6/2024 6:56:57 PM