Banti @ Brajesh vs State Of Madhya Pradesh

The present criminal appeal is arising out of judgment of conviction dated 07.12.1998 passed in Sessions Trial No.146/1997 by the learned Additional

Sessions Judge, Indore, whereby the present appellant has been convicted of an offence under Section 307/34 of the IPC and has been sentenced to

seven years rigorous imprison along with fine of Rs.2,000/- with default stipulation.

The facts of the case reveal that on 09/10/1994, Police StationPalasia has received information from M.Y.Hospital, Indore that one Ramesh has

been brought by his father, who has received stab wound and this information was entered into Rojnamcha by A.S.I. Shinde, and thereafter, Head

Constable Shiv Lochan immediately rushed to M.Y.Hospital. After investigating the matter, it was noticed that on 09/10/1994 at about 10:30 pm

near Tilak Nagar School, when a Garba competition was going on, the accused persons namely Shailesh and Banti were present and there was a

dispute between Shailesh and Banti one side and Rakesh and others on the other side. Banti has called Rakesh and the allegation against Banti is that

he caught hold of Rakesh and at that point of time, Shailesh took out the knife and Stabbed him. He was taken to nearby Nursing Home. Thereafter,

he was taken to M.Y. Hospital, where he was operated. A crime was registered at Crime No.531/1994 for offence under Section 324 r/w 34 of IPC.

Later on after investigation Section 307 of IPC was added and a charge sheet was filed in the matter.

Learned counsel for the appellant has argued before this Court that the person, who has stabbed the complainant Rakesh, during the trial namely

Shailesh expired, meaning thereby, the trial proceeded against the sole appellant namely Banti. The prosecution has examined Ganesh Singh (PW-1),

B.C.Shinde (PW-2), Head Constable Pradumn (PW-3), Rakesh (PW-4), Badrilal (PW-5), Naresh Yadav (PW-6), Bhupendra Shrivastava (PW-7),

Arvind (PW-8), Head Constable Shivlochan (PW-9) and Dr.Piyush Agrawal (PW-10).

As per report of the doctor, the injury was grievous in nature and it was life threatening injury. In the examination-in-chief, the complainant has

stated that Banti was a person, who called him and caught hold him, and thereafter, Shailesh took out a knife and stabbed him. In his cross-

examination, he has clarified the issue and he has stated that first he was stabbed by Shailesh, and thereafter, Banti caught hold of him, meaning

thereby, the only allegation against the present appellant is that he caught hold the complainant. In paragraph 12 of cross examination he has stated

that in fact no altercation took place with Banti and it was his friend Narendra Yadav, who has told him that Banti was the person who has caught

hold of his hand. Even Badrilal (PW-5), who was father of Rakesh has also supported the prosecution case on the same lines.

In the statement, other witnesses have also stated that Banti has caught hold of the complainant and the complainant says that after he was

stabbed, Banti caught hold of his hand.

In the present case, two interlocutory applications have been filed i.e. IA No.5519/2014 and 5520/2014 and the complainant was very much present

before this Court on 01/10/2014. The applications reveal that parties wanted to compromise the matter, and therefore, the first application has been

preferred under Section 320(2) of Cr.P.C and the second IA preferred under Section 320 of Cr.P.C. In the present case the incident is of the year

1994 and we are in the year 2018, meaning thereby, the incident is 24 years old. As per the compromise application, the parties are in cordial

relationship with both the families and are visiting each other and the applications have been filed without any coercion or without any undue influence

with open mind. Learned counsel for the complainant has also made a prayer for allowing the aforesaid applications.

Learned Government Advocate for the respondent/State has supported the impugned judgment and prayed that the same may be affirmed.

The Apex Court in the case of Unnikrishnan @ Unnikuttan Vs. State of kerala reported in 2018 Cr.L.R. (SC) 275Â in paragraph 9 to 13 has held

as under:-

“9. In the case on hand, the petitioner is convicted for the offence punishable under Section 394 of the I.P.C. and is sentenced to two years

Rigorous Imprisonment. We are aware that the said offence is not compoundable within the scope of Section 320 Cr.P.C.

In series of decisions i.e. Bharath singh Vs. State of m.p. & ors., 1990 (Supp)Â SCC 62, Ramlal Vs. State of J. &K., (1999) 2 SCC 213: AIR

1999 SC 895; Puttaswamy Vs. State of Karnataka & Anr., (2009) 1 SCC 711: 2009 AIR SCW 1744, 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.

What emerges from the above is that even ifan offence is not compoundable within the scope of Section 320 of Code of Criminal Procedure the

Court may, in view of the compromise arrived at between the parties, reduce the sentence imposed while maintaining the conviction.

Having regard to the facts of the present case,while taking into account the settlement arrived at between the parties and also considering the

affidavits filed before us by each one of the applicants by way of joint application, we allow the application seeking permission to compound the

offences.

The Special Leave Petition is disposed ofaccordingly.â€​

In the aforesaid case also, there was an application for compounding in respect of non-compoundable offence and the Apex Court has allowed the

compromise arrived at between the parties and has reduced the sentence imposed while maintaining the conviction. 10. A similar view has been taken

by the Apex Court in the case of Gulab Das & ors. Vs. State of M.P. reported in 2012 CRI.L.J.667 Paragraph 8 and 9 of the aforesaid judgment

reads as under:-

“8. Having said that we are of the view that the settlement/compromise arrived at between the parties can be taken into consideration for the

purpose of determining the quantum of sentence to be awarded to the appellants. That is precisely the approach which this Court has adopted in the

cases referred to above. Even when the prayer for composition has been declined this Court has in the two cases mentioned above taken the fact of

settlement between the parties into consideration while dealing with the question of sentence. Apart from the fact that a settlement has taken place

between the parties, there are few other circumstances that persuade us to interfere on the question of sentence awarded to the appellants. The

incident in question had taken place in the year 1994.

The parties are related to each other. Both Appellant nos. 2 and 3 were at the time of the incident in their twenties. It is also noteworthy that the

incident had led to registration of a cross case against the complainant party in which the trial Court has already convicted Veeraji and others for

offences punishable under Sections 325/34 and 323 IPC and sentenced them to undergo imprisonment for a period of two years and a fine of Rs.300/-

and imprisonment of six months under Section 323 IPC. We are told that the parties having settled the matter, will approach the High Court for an

appropriate order in the appeal pending before it. More so, the appellants have already served substantial part of the sentence awarded to them.

In the totality of the circumstances we are of the view that the settlement arrived at between the parties is a sensible step that will benefit the

parties, give quietus to the controversy and rehabilitate and normalise the relationship between them. â€​

Keeping in view the totality of facts and circumstances of the case and also keeping in view that the parties have entered into the compromise and

also keeping in view the evidence against the present appellant, the conviction of the appellant is upheld, however as he has already undergone one

year rigorous imprisonment, the sentence awarded by the trial Court is reduced to the sentence already undergone.

The Apex Court in the case of Narendra Singh Vs. State of Punjab reported in 2014 (6) SCC 466 Paragraph 31 to 34 of the aforesaid judgment

reads as under:-

“31. In the present case, FIR No.121 dated 14.7.2010 was registered under Section 307/324/323/34 IPC. Investigation was completed, whereafter

challan was presented in the court against the petitioner herein. Charges have also been framed; the case is at the stage of recording of evidence. At

this juncture, parties entered into compromise on the basis of which petition under Section 482 of the Code was filed by the petitioners namely the

accused persons for quashing of the criminal proceedings under the said FIR. As per the copy of the settlement which was annexed along with the

petition, the compromise took place between the parties on 12.7.2013 when respectable members of the Gram Panchayat held a meeting under the

Chairmanship of Sarpanch. It is stated that on the intervention of the said persons/Panchayat, both the parties were agreed for compromise and have

also decided to live with peace in future with each other. It was argued that since the parties have decided to keep harmony between the parties so

that in future they are able to live with peace and love and they are the residents of the same village, the High Court should have accepted the said

compromise and quash the proceedings.

We find from the impugned order that the solereason which weighed with the High Court in refusing to accept the settlement between the parties

was the nature of injuries. If we go by that factor alone, normally we would tend to agree with the High Court’s approach. However, as pointed

out hereinafter, some other attendant and inseparable circumstances also need to be kept in mind which compel us to take a different view.

We have gone through the FIR as well which wasrecorded on the basis of statement of the complainant/victim. It gives an indication that the

complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute etc. is not

stated in detail. However, a very pertinent statement appears on record viz., “respectable persons have been trying for a compromise up till now,

which could not be finalizedâ€. This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported

attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and

the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is

yet to be led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward

in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conducted medical

examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would,

therefore, be unnecessary to drag these proceedings. We, taking all these factors into consideration cumulatively, are of the opinion that the

compromise between the parties be accepted and the criminal proceedings arising out of FIR No.121 dated 14.7.2010 registered with Police Station

LOPOKE, District Amritsar Rural be quashed. We order accordingly.

Appeal is allowed. No costs. â€​

In light of the aforesaid, the appellant is awarded one year rigorous imprisonment and as he has already undergone almost one year sentence, the

sentence of one year, awarded by Court shall be treated as undergone. The bail and bond stand discharged.

With the aforesaid, the present Criminal Appeal stands allowed.

Certified copy as per rules.