Madhya Pradesh High Court
Govardhansingh vs State Of M.P. on 12 September, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2024:MPHC-IND:26869
1 CRA-1285-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 1285 of 2008
GOVARDHANSINGH
Versus
STATE OF M.P.
Appearance:
Shri Brijendrakumar Mishra - advocate for the appellant.
Shri Vinod Thakur, learned GA for the State.
RESERVED ON:20.08.2024
DELIVERED ON: 12.9.2024
ORDER
1. This criminal appeal is preferred under section 374 of Cr.P.C. by the appellant being aggrieved by the judgment of conviction and sentence dated 31.10.2008, passed by learned Fourth Additional Sessions Judge, District- Dewas, in ST No.127/2000, whereby the appellant has been convicted for the offence punishable under Section 307 of IPC, sentenced to undergo 7 years R.I with fine of Rs.2,000/-, with default stipulations.
2. As per prosecution story, on 09.03.2003, in the evening at about 6.0 0 o'clock Bhagirath brought heifer from the compound, which escaped from his hand and went in front of Govardhan's house, upon which Govardhan carried axe from house and started abusing and said that how calf came in front of his house, with the intention to kill, Gowardhan struck a blow of axé Signature Not Verified Signed by: VARSHA DUBEY Signing time: 17-09-2024 12:26:55 NEUTRAL CITATION NO. 2024:MPHC-IND:26869 2 CRA-1285-2008 on the left side of neck of the injured Bhagirath. Govardhan due to enmity on account of joint tube well and agricaltural land, with an intention to kill Bhagirath caused injury by axe.
3. First information report was lodged by the injured Bhagirath, on the basis of which an offence under section 307 of Indian Penal Code was registered at Crime No.56/2008.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 person The police thereafter filed challan under Section 307 of Indian Penal code against the accused/appellant in the Court of the learned Judicial Magistrate First Class, Dewas, who committed it to the Court of sessions, Dewas from where it was transferred to the learned Trial Court for consideration.
4. Thereafter, appellant was convicted for offence as mentioned in paragraph No. 1.
5. Before this Court, both the parties have filed an application for compounding the offences.
6. The said application was sent for verification before the Principal Registrar vide order dated 22.11.2022. In compliance to the said order, the compromise was verified and a report dated 05.12.2022 has been submitted in which it is mentioned that accused/appellant and the complainant have entered into compromise with mutual consent. There is no dispute remaining between the accused/appellant and the complainant.
Signature Not Verified Signed by: VARSHA DUBEY Signing time: 17-09-2024 12:26:55NEUTRAL CITATION NO. 2024:MPHC-IND:26869 3 CRA-1285-2008
7. Counsel for the appellant submits that so far as sentence is concerned, the appellant has already undergone jail sentence of approximately seven days and the incident had taken place in the year 2003. Counsel further submitted that the appellant 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) and Rahamatullah and others Vs. State of Madhya Prades, passed in CRA No. 751/2004 ( order dated 18.7.2024) . 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.
8. Learned counsel for the respondent/state has opposed the prayer.
9. Nevertheless, the counsel for the appellant has not impugned the merits of conviction and confined his arguments on sentencing of the appellant 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 person, 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 Signature Not Verified Signed by: VARSHA DUBEY Signing time: 17-09-2024 12:26:55 NEUTRAL CITATION NO. 2024:MPHC-IND:26869 4 CRA-1285-2008 does not warrant any interference. Accordingly, the finding with regard to conviction under Section 307 of IPC, is hereby affirmed.
10. Now, the Court is turning to the sentencing part of non compoundable offence under Section 307 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(Supra) 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 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 Signature Not Verified Signed by: VARSHA DUBEY Signing time: 17-09-2024 12:26:55 NEUTRAL CITATION NO. 2024:MPHC-IND:26869 5 CRA-1285-2008 society."
11. 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 711, this Court allowed the parties to compound the offence even though the offence is a noncompoundable 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."
12. 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.
13. 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 Signature Not Verified Signed by: VARSHA DUBEY Signing time: 17-09-2024 12:26:55 NEUTRAL CITATION NO. 2024:MPHC-IND:26869 6 CRA-1285-2008 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 the case on hand."
14. 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 appellant 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 may be reduced by enhancing the fine amount.
15. On this aspect, learned counsel for the appellant has also requested that since the appellant is a contract teacher and working in a Government Signature Not Verified Signed by: VARSHA DUBEY Signing time: 17-09-2024 12:26:55 NEUTRAL CITATION NO. 2024:MPHC-IND:26869 7 CRA-1285-2008 Department and he has faced the trial from more than 15 years and also suffered the incarceration of jail sentence, he may be given the benefit of the Act, 1958 and order of compensation would serve the ends of justices. It is also requested that since the injured complainant party has compromised the case, his punishment may be converted only in compensation.
16. Now the question is as to whether the appellant being a Government servant is entitled to get the benefit of the Act, 1958. In this case, the complainant has filed compromise which has been verified by the Registry of this Court. Both parties have settled the matter. The appellant has already suffered the ordeal of 15 years and also undergone some period in jail, it will be propitious to consider the Probation of Offenders Act, 1958 in favour of the appellant.
17. With regard to the prayer that the appellant 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 here under Sections 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 Signature Not Verified Signed by: VARSHA DUBEY Signing time: 17-09-2024 12:26:55 NEUTRAL CITATION NO. 2024:MPHC-IND:26869 8 CRA-1285-2008 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 8 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 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 Signature Not Verified Signed by: VARSHA DUBEY Signing time: 17-09-2024 12:26:55 NEUTRAL CITATION NO. 2024:MPHC-IND:26869 9 CRA-1285-2008 (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."
18. 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 Signature Not Verified Signed by: VARSHA DUBEY Signing time: 17-09-2024 12:26:55 NEUTRAL CITATION NO. 2024:MPHC-IND:26869 10 CRA-1285-2008 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. "
19. 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."
20. In view of the aforesaid principles laid down by Hon'ble Apex Court and by this Court since the appellant is a Government servant, and he has been Signature Not Verified Signed by: VARSHA DUBEY Signing time: 17-09-2024 12:26:55 NEUTRAL CITATION NO. 2024:MPHC-IND:26869 11 CRA-1285-2008 convicted for offence under Sections 307 of IPC, 1860 and now after compromise, it would be appropriate that the appellant should be given the benefit of Sections 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 can be reduced to the period already undergone by him and therefore, the nature of offence would be mitigated.
21. In addition to that, it is poignant to point out that when on the basis of compromise petition, this Court, 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, it 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, he is entitled to get the benefit of the Act under the aforesaid provisions.
22. In the upshot of the aforesaid analysis of law and deliberation in entirity, it would be condign to release the appellant under the provisions of Sections 5 & 12 of 'The Act, 1958' by imposing compensation of Rs.20,000/- in the State Exchequer. In the result thereof, it is directed that conviction of appellant will not affect his profession and future career in any manner.
23. The judgment of learned trial Court regarding disposal of the seized Signature Not Verified Signed by: VARSHA DUBEY Signing time: 17-09-2024 12:26:55 NEUTRAL CITATION NO. 2024:MPHC-IND:26869 12 CRA-1285-2008 property stands affirmed.
24. A copy of this order be sent to the concerned trial Court for necessary compliance.
25. Pending application, if any shall be closed.
26. With the aforesaid, the present appeal stands disposed of.
Certified copy, as per rules.
(PREM NARAYAN SINGH) JUDGE VD Signature Not Verified Signed by: VARSHA DUBEY Signing time: 17-09-2024 12:26:55