Jalam and Others vs State of Madhya Pradesh

Hon''ble Shri Justice N.K. Gupta, J.—This judgment passed by me shall govern the disposal of above mentioned criminal appeals, since these appeals arise out of common impugned judgment. These two criminal appeals are preferred by the appellants being aggrieved by the judgment dated 31/7/2009 passed by the 7th Additional Sessions Judge, Sagar in ST No. 208/2008, whereby the appellants were convicted and sentenced as under:

Conviction U/S

Sentence

Fine (Rupees)

In default

307/149 IPC

5 years RI

500/-each

SI for 6 months

324/149 IPC

3 years RI

300/-each

SI for 3 months

323/149 IPC

6 months RI

100/-each

SI for 1 month

148 IPC

2 years RI

200/-each

SI for 2 months

All the sentences were directed to run concurrently.

The prosecution''s case, in short, is that on 27.11.2007 at about 9:00 PM in the night the complainant Bablu (PW-3) was taking his dinner in his house situated at Village Pamakhedi (Police Station Sanodha District Sagar). Pappu, brother of the complainant came back with his wife Laxmi from Sagar after getting treatment of his wife. Pappu went to the house of Gudda. After sometime the complainant Bablu heard the shouting of his brother Pappu. He rushed to the spot and he found that in front of the house of his uncle Gudda the appellants were assaulting his brother Pappu by sticks, ballam, farsa and axes. When the complainant tried to save his brother Pappu, then he was also assaulted by the appellants. Laxmi Bai was also assaulted on intervention. Bablu had lodged a Dehati Nalishi Ex. P-21 to Police Officer S.L. Sisodiya (PW-12) when he met to him. Thereafter injured persons were sent to the hospital for their medico legal examination and treatment. The case was registered before the Police Station Sanodha. After due investigation, a charge sheet was filed before the JMFC Sagar, who committed the case to the Sessions Judge, Sagar and ultimately it was transferred to the 7th ASJ, Sagar.

The appellants-accused abjured their guilt. They did not take any specific plea in the defence, and therefore no defence witness was examined.

During the pendency of this appeal, victims Pappu, Bablu and Laxmi have filed applications seeking permission to do compromise and also filed compromise with the appellants. The Registrar (J-I) has verified the voluntariness of the complainant to do compromise and also recorded the compromise. It was directed that the order shall be passed on the compromise applications at the time of passing of judgment.

Heard the learned counsel for the parties.

The learned counsel for the appellants have submitted that except of offence punishable under Sections 307 and 148 of IPC, remaining offences are compoundable. Actually no victim has sustained any fatal or grievous injury, therefore no offence u/s 307 of IPC is made out against the appellants. The appellants remained in the custody for few days during the trial and appeal. Therefore, it is prayed that sentence may be reduced to the period already undergone in the custody for the offence u/s 148 of IPC.

After considering the submissions made by learned counsel for the parties, it is to be considered that whether any offence u/s 307 of IPC is made out against the appellants? Whether the compromise filed by the complainant may be accepted, if yes what would be the effect of the compromise? And whether the sentence imposed upon the appellants can be reduced?

The charges of offence punishable u/s 307 of IPC were framed for the victim Bablu. Dr. R.K. Khare (PW-6) has proved the injury report Ex. P-24 in relation to the complainant Bablu. He found incised wound on his back. Dorsal spine (at two places), left thigh and left parietal region of the head. The injured was referred to the Surgical Expert. Dr. Jindesh Diwakar (PW-9) took the X-ray of the victim Bablu and found no fracture to the victim Bablu and no gas was found below diaphragm in the abdomen. It was for the Surgical Specialist to prove that whether injuries caused on the back of complainant Bablu were fatal in nature or not.

Dr. Khare has submitted the bed head ticket relating to the treatment done to the victim Bablu, but no expert was examined before the trial Court to show that whether any injury was referred for the surgery for treatment of wounds caused to the victim Bablu or whether any fatal part of his body was found cut due to incised wound caused to the victim Bablu. Under such circumstances, the prosecution failed to prove that the injuries caused to the complainant Bablu were either fatal or grievous in nature. Under such circumstances, where it was not proved that the injuries caused to the victim Bablu were fatal or grievous, then it is apparent that the injuries were caused by the appellants without any sufficient force, and therefore when neither the appellants were intended to kill the victim Bablu nor he sustained any fatal injury, the appellants could not be convicted for the offence u/s 307 of IPC. Their overt-acts may constitute the offence u/s 324/ 149 of IPC only.

At present offence u/s 324 of IPC is not compoundable, but at the time of incident it was compoundable, and therefore looking to the date of incident, compromise may be accepted for the offence u/s 324 of IPC. The victims Bablu, Pappu and Laxmi have submitted applications in both the appeals seeking permission to compromise and they have shown their voluntariness for the same. Under such circumstance, their applications for the offence under Sections 324/ 149, 324/ 149 and 323/ 149 of IPC can be accepted, and therefore permission to compromise is given for the aforesaid three offences. Consequently, compromise filed by the parties is also accepted for the aforesaid offences. The result of the compromise would be the appellants shall be acquitted from all the charges of offence punishable under Sections 324 and 323 of IPC. Only offence u/s 148 of IPC shall remain against the appellants, because it is not compoundable.

Looking at the submissions of learned counsel for the appellants, it is apparent that the conviction awarded by the trial Court u/s 148 of IPC is not at all challenged. It is submitted that the sentence may be reduced to the period for which the appellants have already undergone in the custody. In such circumstance, when the major offences are compounded by the complainant, then certainly looking to the compromise, the sentence passed for the offence u/s 148 of IPC may be reduced to the period for which the appellants have undergone in the custody. Since the complainants are duly compensated, and therefore it would not be proper to enhance the fine amount imposed against the appellants for the offence u/s 148 of IPC.

On the basis of the aforesaid discussion, both the appeals filed by the appellants are partly allowed. The conviction and sentence directed by the trial Court for the offence punishable under Sections 307/ 149 of IPC is hereby set aside and the appellants are convicted for the offence u/s 324/ 149 of IPC for that offence. But on the basis of compromise, appellants are acquitted from the charges of offence punishable under Sections 324/ 149, 323/ 149 and 324/ 149 (for the complainant Bablu) and therefore their sentence is also set aside for such offences. Conviction of the appellants for the offence u/s 148 of IPC is hereby maintained, but sentence is reduced to the period for which they remained in custody during the trial and appeal. There is no change in the fine imposed for the offence u/s 148 of IPC. Appellants are entitled to get the fine amount back for the remaining offences.

Presence of the appellants is no more required before this Court, and therefore it is directed that their bail bonds shall stand discharged. A copy of this judgment be sent to the trial Court with its record for information and compliance.