Madhya Pradesh High Court
Kailash Gupta vs State Of M.P on 31 August, 2017
CRR-147-2012
(KAILASH GUPTA AND ANOTHER Vs STATE OF M.P)
31-08-2017
Shri Manish Nayak, Advocate for the applicants.
Shri Prakhar Dhengula, Public Prosecutor for respondents/State.
This Criminal Revision under Sections 397, 401 of Cr.P.C. has been filed by the applicant no.1 against the judgment and sentence dated 17/2/2012 passed in Criminal Appeal No.179/2011 and the applicant no.2 has filed this revision against the judgment and sentence dated 17/2/2012 passed in Criminal Appeal No.258/2011 by the Additional Sessions Judge, Lahar, District Bhind thereby affirming the judgment and sentence dated 19/4/2011 passed by the JMFC, Lahar, District Bhind in Criminal Case No.202/2005 by which the applicants have been convicted for the offence under Sections 452 and 323 of IPC and they have been sentenced to undergo the rigorous imprisonment of four months and a fine of Rs.200/- with default imprisonment for offence under Section 452 of IPC and a fine of Rs.500/- for offence under Section 323 of IPC with default imprisonment.
2. The necessary facts for the disposal of this revision in short are that on 15/6/2005 one Moolchand, the relative of the complainant- Pahalwan, had some dispute with the son of applicant No.2-Ghure Khan. On this issue, at about 8 in the night on 16/6/2005 the applicants came inside the house of the complainant. The applicant no.1 was having an axe in his hand, whereas the applicant no.2 was having a Lathi. Both the applicants started abusing the complainant and the applicant no.2 gave a Lathi blow on the back of the injured- Kanhaiyalal, whereas the applicant no.1 assaulted by the handle of his axe on the waist of the injured-Kanhaiyalal. When the complainant- Pahalwan tried to intervene in the matter, the applicant no.1 assaulted on his left hand, whereas the applicant no.2 gave a teeth bite on his back and pressed his neck. The incident was witnessed by Kathole and Karu Baghel, who intervened in the matter. The FIR was lodged on 17/6/2005 and the police after registering the FIR, investigated the matter and filed the charge-sheet against the applicants for offence under Sections 452, 323, 504, 506 Part-II, 324, 34 of IPC.
3. The trial court by order dated 23/11/2005 framed charges against the applicants for offence under Sections 452, 324/34, 323/34 and 506 Part-II of IPC.
4. The applicants abjured their guilt and pleaded not guilty.
5. It appears that during the pendency of the trial the complainant filed an application under Section 320 (2) of Cr.P.C. for compounding the offence against applicant no.1-Kailash. The trial court by order dated 29/11/2010 partially allowed the application and discharged the applicant no.1 for offence under Sections 324/34, 323/34 and 506 Part-II of IPC and directed that the prosecution of the applicant no.1 shall continue for offence under Section 452 as well as for offence under Section 323/34 of IPC for causing injury to Kanhaiyalal.
6. After recording the evidence of the prosecution witnesses and hearing both the parties, the trial court convicted the applicants for offence under Section 452 as well as for offence under Section 323 of IPC for causing injury to Kanhaiyalal and sentenced the applicants to undergo rigorous imprisonment of four months and a fine of Rs.200/- with default imprisonment for offence under Section 452 of IPC and fine of Rs.500/- with default imprisonment for offence under Section 323 of IPC.
7. Being aggrieved by the judgment and sentenced passed by the trial court, the applicants filed Criminal Appeals, which were registered as Criminal Appeal No.179/2011 and Criminal Appeal No.258/2011 and were decided by common judgment dated 17/2/2012 and the appeals were dismissed.
8. Challenging the judgment and sentence passed by the courts below the counsel for the applicants has confined his submission to the quantum of punishment.
8.1 It is submitted that the applicant no.1 had remained in jail for 8 days during trial and after dismissal of his appeal, he was sent to jail on 17/2/2012 and his jail sentence was suspended by this Court by order dated 29/2/2012. Thus, it is clear that the applicant no.1 has remained in jail for a period of near about 22 days. 8.2 So far as the applicant no.2 is concerned, he had also remained in jail for 8 days during trial and after the dismissal of his appeal, he too was granted bail by this Court by order dated 29/2/2012. However, as the applicant no.2 did not appear before the office of this Court regularly, therefore, his bail was cancelled and warrant of arrest was issued. It is submitted that the applicant no.2 has been taken into custody on 8/6/2017 and he is in jail from thereafter and thus, it is clear that he has almost completed his jail sentence.
9. Per contra, it is submitted by the counsel for the State that deterrence is the basic feature of sentencing policy, therefore, where the applicants have trespassed and had caused injuries to the injured persons, then no leniency can be shown to the applicants on the question of quantum of sentence.
10. Heard learned counsel for the parties.
10.1 From the record, it is clear that the complainant-Pahalwan had resolved his dispute with the applicant no.1 and had also filed an application under Section 320 (2) of Cr.P.C. before the trial court itself, which was partially allowed and the applicant no.1 was discharged for the offence punishable under Sections 324/34, 323/34 and 506 Part-II of IPC and since the offence under Section 452 of IPC was not compoundable and the other injured-Kanhaiyalal had not filed any application for compounding the offence, therefore, the applicant no.1 was directed to be prosecuted for offence under Sections 452 and 323/34 of IPC.
10.2 So far as the offence under Section 323 of IPC is concerned, no jail sentence was awarded to either of the applicants. 10.3 So far as the offence under Section 452 of IPC is concerned, it is clear from the record that the applicant no.2 is in jail from 8/6/2017, as he had jumped bail during the pendency of this revision, whereas so far as the applicant no.1 is concerned, the complainant-Pahalwan had already compromised and resolved his dispute with the applicant no.1 and even in the case of non-compoundable offence, the factum of compromise can be considered while ascertaining the quantum of punishment. As no minimum sentence is provided for an offence under Section 452 of IPC and since applicant no.1 has remained in jail for 22 days and applicant no.2 is in jail from 8/6/2017, therefore, the sentence awarded to the applicants is reduced to the period already undergone by them.
11. Accordingly, the judgment dated 19/4/2011 passed by the trial court and the judgment dated 17/2/2012 passed by the appellate court are hereby affirmed and the sentence awarded by the trial court is modified. Applicants are sentenced to the period already undergone by them. The applicant no.1 is on bail, his bail bonds and surety bonds stand discharged. The applicant no.2 is in jail, he be released immediately, if not required in any other case.
The Criminal Revision succeeds and is partially allowed to the extent mentioned above.
(G.S. AHLUWALIA) JUDGE Arun*