Madhya Pradesh High Court
Rahamatullah vs The State Of M.P. on 18 July, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1 CRA-751-2004
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 751 of 2004
(RAHAMATULLAH AND OTHERS
Vs
THE STATE OF M.P.)
Appearance:
SHRI RAMESH CHANDRA GANGARE, LEARNED COUNSEL FOR THE
APPELLANTS.
SHRI SURENDRA GUPTA, LEARNED GOVT. ADVOCATE FOR
RESPONDENT/STATE.
SHRI BHARAT YADAV, LEARNED COUNSEL FOR THE RESPONDENT
[COMP].
Reserved on: 30.05.2024
Delivered on: 18.07.2024
This appeal having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
JUDGMENT
Per: PREM NARAYAN SINGH This criminal appeal is preferred under section 374 of Cr.P.C. by the appellants being aggrieved by the judgment of conviction and sentence dated 23.07.2004, passed by learned Second Additional Sessions Judge, District- Narsinghgarh, in ST No.203/2000, whereby the appellants have been convicted for the offence punishable under Section 307/149 of IPC, sentenced to undergo 10 years R.I with fine of Rs.1,000/-, and Section 148 of IPC, sentenced to undergo 6 months R.I.
5. As per prosecution story, on 30.06.2000 in between 10-11 am, Signature Not Verified Signed by: SUMATHI Signing time: 18-07- 2024 18:14:01 2 CRA-751-2004 complainant Kallu Khan, accompanied with his brother Sulaiman, nephew Shahid Khan, Usman, Ikram, Irfan, Mehaboob, and his brother-in-law Basarat Khan, was irrigating the filed which he purchased from his grand mother Sarjubai. At that time applicants armed with harmful weapon came to the spot and started assaulting the complainant party due to which they sustained injury and started bleeding. Thereafter, the complainants Sulaiman and Usman along with ex-sarpanch Ameenullah Khan reached to the police station and registered complaint against the appellants. On the basis of which FIR was lodged against the appellants.
6. The police after following the due procedure, prepared the spot map, taken the statements of the witnesses, seized the articles used in the crime. Injured persons were sent for treatment and police arrested the accused persons and after due investigation, filed the charge-sheet before the Judicial Magistrate First Class, Narsinghgarh. The matter was committed to the Court of Sessions Judge, Rajgarh thereafter the case was transferred to the Court of Additional Sessions Judge, Narsinghgarh vide order dated 30.10.2003.
7. Thereafter, appellants were charged for offence under Sections 307/149 of IPC and Section 148 of IPC. They abjured their guilt and took a plea that they have been falsely implicated in the present crime and prayed for trial.
8. During the appeal appellant no.1 Rahmatullah, appellant No.11- Majeed Khan and appellant No. 14-Hasmat Khan have expired and hence the appeal stands abated with regard to appellant no.1-Rahmatullah, appellant no.11-Majeed Khan and appellant no.14-Hasmat Khan.
Signature Not Verified Signed by: SUMATHI Signing time: 18-07- 2024 18:14:013 CRA-751-2004
9. Before this Court, both the parties have filed an application for compounding the offences.
10. The said application was sent for verification before the Principal Registrar vide order dated 07.05.2024. In compliance to the said order, the compromise was verified and a report dated 20.05.2024 has been submitted in which it is mentioned that accused/appellants and the complainants have entered into compromise with mutual consent. There is no dispute remaining between the accused/appellant and the complainant.
11. Counsel for the appellants submits that so far as sentence is concerned, the appellants have already undergone jail sentence of approximately two months and the incident had taken place in the year 2000. Counsel submitted that appellant no.3 Rafu Khan is a government servant hence counsel prays that probation be granted under Section 4 of the Probation of Offenders Act so that his service is not adversely effected. 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. (1995(1) MPWN 238). It is also submitted that compromise has already been arrived at between the parties and therefore, while maintaining the conviction, the jail sentence may be reduced to the period already undergone by enhancing the fine amount on the basis of compromise.
12. 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: SUMATHI Signing time: 18-07- 2024 18:14:014 CRA-751-2004
13. Nevertheless, the counsel for the appellants has not impugned the merits of conviction and confined his arguments on 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. In view of the whole evidence produced by the prosecution, conclusion of learned trial Court regarding conviction appears to be on sound reasoning, it does not warrant any interference. Accordingly, the finding with regard to conviction under Sections 307/149 and Section 148 of IPC, is hereby affirmed.
14. Now, the Court is turning to the sentencing part of non- compoundable offence under Section 307 and 148 of IPC and effect of compromise placed by the complainant/injured and accused person. 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 Signature Not Verified Signed by: SUMATHI Signing time: 18-07- 2024 18:14:01 5 CRA-751-2004 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 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."
15. On this point, the view of Hon'ble Apex Court in the case of Unnikrishnan alias Unnikuttan versus State of Kerala reported in (2018) 15 SCC 343 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 71 1, this Court allowed the parties to compound the offence even though the offence is a non-
compoundable depending on the facts and 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."
Signature Not Verified Signed by: SUMATHI Signing time: 18-07- 2024 18:14:016 CRA-751-2004
16. 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 reported as 2023 Lawsuit (MP) 392, Devendra Singh vs. State of M.P. (2023 Lawsuit (MP)781) and Shravan vs. The State of M.P. reported as 2024 Lawsuit (MP) 240 has taken a similar view.
17. 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 accused for molding the sentence which always has to be examined in the facts and circumstances of Signature Not Verified Signed by: SUMATHI Signing time: 18-07- 2024 18:14:01 7 CRA-751-2004 the case on hand."
18. As the offence under Section 307 of IPC is not 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 appellants may be reduced to the period already undergone
19. Likewise, the offence punishable under Section 148 of IPC is concerned it is also not a compoundable offence, however, in view of the aforesaid compromise their sentence may be reduced to the period already undergone by enhancing the fine amount. In view of the aforesaid principle laid down by Hon'ble Apex Court and this Court, taking into consideration that the incident has taken place in the year 2000, the appellants are facing the trial for more than 24 years and further appellants have already undergone jail sentence of approximately 2 months and no fruitful purpose would be served in keeping the appellant in jail even after the compromise entered into between the parties, hence this Court is of the view that while maintaining conviction under Section 307 and 148 of IPC, the jail under these offences is reduced to the period already undergone by enhancing the fine amount from Rs.1,000/- to Rs.10,000/- under Section 307 of IPC and imposing fine amount of Rs.1000/- for offence under Section 148 of IPC.
Signature Not Verified Signed by: SUMATHI Signing time: 18-07- 2024 18:14:018 CRA-751-2004 The appellants shall be discharged after their depositing the aforesaid fine amount imposed upon them, if not required in any other case. Failing to deposit the fine amount or compensation amount they shall suffer three months S.I. , if already deposited, shall be adjusted.
20. With regard to the prayer of appellant no.3 Rafu Khan learned counsel for the appellant submitted that since appellant no.3-Rauf Khan 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, 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 Signature Not Verified Signed by: SUMATHI Signing time: 18-07- 2024 18:14:01 9 CRA-751-2004 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 sub- section (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 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 sub- section (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 Signature Not Verified Signed by: SUMATHI Signing time: 18-07- 2024 18:14:01 10 CRA-751-2004 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.
XXXX 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."
21. 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 of Haryana AIR 1985 SC 1278 which reads as under:-
"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 Signature Not Verified Signed by: SUMATHI Signing time: 18-07- 2024 18:14:01 11 CRA-751-2004 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. "
22. On this point, Narottam vs. State of M.P. , reported as 1995 (1) MPWN 238 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 Rajbeer 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."Signature Not Verified Signed by: SUMATHI Signing time: 18-07- 2024 18:14:01
12 CRA-751-2004
23. In view of the aforesaid principles laid down by Hon'ble Apex Court and by this Court since the appellant No.3 is a Government servant, and he has been convicted for offence under Sections 307/149 and 148 of IPC, 1860 and now after compromise, likewise, other co-appellants is required to be punished with only undergone period along with fine of Rs.11,000/-, it would be appropriate that this appellant no.-3 Rauf should be given the benefit of Section 5 & 12 of The Act, 1958, as he is in government service. It is also worth to be kept in mind that the offence proved against the appellant is a serious offence but when the parties have amicably settled their dispute and due to their settlement, in view of the law laid down by Hon'ble Apex Court, his sentence is reduced to the period already undergone by him and therefore, the nature of offence would be mitigated.
24. In addition to that, it is poignant to point out that when on the basis of compromise petition, these Courts, relying upon Gian Singh (Supra), Narinder Singh and Ors (Supra), Unnikrishnan alias Unnikuttan (Supra), Bhagwan Narayan Gaikwad (Supra), can use its extraordinary jurisdiction for either quashing the criminal proceedings or reducing the sentence, they will be well within jurisdiction to give the benefit of The Act, 1958 in appropriate cases, when parties have settled their matter amicably and filed compromise petition. In the case at hand, where no evidence has been filed to indicate any criminal antecedent against appellant no.3-Rauf, he is entitled to get the benefit of Probation of Offenders Act, 1958 under the aforesaid provisions.
25. In the upshot of the aforesaid analysis of law and deliberation in Signature Not Verified Signed by: SUMATHI Signing time: 18-07- 2024 18:14:01 13 CRA-751-2004 entirity, it would be condign to release the appellant Rauf under the provisions of Section 5 & 12 of 'The Act, 1958' by imposing compensation of Rs.10000/- in the State Exchequer. In the result thereof, it is directed that conviction of appellant no.3-Rauf will not affect his profession and future career in any manner.
26. The judgment of learned trial Court regarding disposal of the seized property stands affirmed.
27. A copy of this order be sent to the concerned trial Court for necessary compliance.
28. Pending application, if any shall be closed.
29. With the aforesaid, the present appeal stands disposed off. Certified copy, as per rules.
(PREM NARAYAN SINGH ) JUDGE sumathi Signature Not Verified Signed by: SUMATHI Signing time: 18-07- 2024 18:14:01