Pradeep & Anr vs State Of Madhya Pradesh

This common judgment shall also dispose of Cr.A. No. 578 of 1999 filed by co-accused Mukesh Bilwal.

(2) The present appeals have been filed against the judgment and sentence dated 20-4-1999 passed by 13th A.S.J., Indore in S.T. No. 119/1995, by

which the appellants have been convicted for the following offences :-

Appellant Pradeep :Under Section 307/34 of I.P.C. for causing injury to injured Sanjay and under Section 324/34 of I.P.C. for causing injury to injured

Suresh.

Appellant Mukesh: Under Section 307/34 of I.P.C. for causing injury to injured Sanjay and under Section 324 of I.P.C. for causing injury to injured

Suresh.

(3) The appellants, for offence under Section 307/34 of I.P.C.have been sentenced to undergo the rigorous imprisonment of 7 years and a fine of

Rs.1,000/- with default imprisonment and for offence under Section 324 or 324/34 of I.P.C., the appellants have been sentenced to undergo rigorous

imprisonment of 6 months and a fine of Rs. 250/- with default imprisonment.

(4) The necessary facts for the disposal of the present appeal in short are that on 18-12-1994, at about 9:30 P.M., the appellants caused injuries to the

injured Suresh and the appellant Pradeep @ Bhaiyu, attempted to commit murder of Sanjay by causing injury to him, by means of a knife. On 18-12-

1994, Rajesh (P.W.2) and Sanjay Patel (P.W.3) had gone to attend the marriage of one Raju @ Rajesh along with his barat. It is alleged that the

appellants and other co-accused persons, caused injuries to Rajesh (P.W.2) as a result of which the injured Sanjay Patel (P.W.3), brought him back to

his house in an injured condition, by an auto-rickshaw. The injured Suresh (P.W.1) was standing outside the house, and at that time, the appellants and

the co-accused persons came there and the appellant Mukesh assaulted the injured Suresh (P.W.1) by means of a knife which landed on the right

thigh of the injured Suresh. The appellant Pradeep @ Bhaiyu caused a knife injury on the chest of the injured Sanjay Patel. As there was a hue and

cry in the locality, therefore, the appellants and other co-accused persons ran away. It is further alleged that the co-accused Sanjay and Ram had

assaulted the injured persons by means of fists and blows. The incident was witnessed by Mangesh and Ashok. The injured Suresh (P.W.1) lodged a

F.I.R. The injured Suresh and Sanjay were sent for medical examination. The spot map Ex. P.14 was prepared. The statements of the witnesses

were recorded and the appellants and the co-accused persons were arrested. The confessional statements of the appellant Mukesh and Pradeep were

recorded and knifes were seized by seizure memo Ex. P.9 and P.10. The police after concluding the investigation, filed the charge sheet against the

appellants and the co-accused persons Sanjay and Ram for offence under Section 307 (wrongly mentioned as 302 in the impugned judgment) and 324

of I.P.C

(5) The Trial Court framed charges under Sections 307,324/34 of I.P.C. against the appellant Pradeep and under Sections 307/34 and 324/34 of I.P.C.

against the appellant Mukesh.

(6) The appellants and the co-accused persons, abjured their guilt and pleaded not guilty.

(7) The prosecution in order to prove its case, examined Suresh (P.W.1), Rajesh (P.W.2), Sanjay (P.W.3), Neeraj (P.W.4), Mangesh (P.W.5), Ashok

(P.W.6), Lekhraj (P.W.7), Sunil (P.W.8), Suraj (P.W.9), Dr. Pradeep Goyal (P.W.10), ChandrakantBhamare (P.W.11), Dr. Arun Kumar Mishra

(P.W.12) and Anil Bakshi (P.W.13).

(8) The appellants and co-accused Sanjay and Ram did not examine any witness in their defence.

(9) The Trial Court by judgment and sentence dated 20-4-1999 convicted the appellant Pradeep for offence under Sections 307/34 and 324/34 of

I.P.C. and convicted the appellant Mukesh for offence under Sections 307/34 and 324 of I.P.C. and sentenced them to undergo the rigorous

imprisonment of 7 years and a fine of Rs. 1,000 and rigorous imprisonment of 6 months and a fine of Rs. 250/- with default imprisonment, respectively,

and acquitted the co-accused Ram. Neither the State nor the complainant has challenged the acquittal of the co-accused Ram, therefore, any

reference to his name would be for the purposes of considering the allegations against the appellants. The co-accused Sanjay was also convicted.

(10) The co-accused Sanjay had filed a separate Criminal Appeal which was registered as Criminal Appeal No. 644/1999, however, he expired during

the pendency of the appeal and his appeal is accordingly dismissed as having abated.

(11) Challenging the conviction and sentence passed by the Court below, the appellants have drawn the attention of this Court to the order dated 5-11-

1999, passed by this Court, which reads as under- :

“In these three connected appeals i.e., Cr.A. No. 644/1999, Cr.A. No. 578 and Cri. Appeal No. 614/99, an application (I.A. No. 4192/99) is filed in

Criminal Appeal No. 614/99 for compounding. The same will be considered at the time of final hearing. However, today the injured Sanjay Patel along

with his lawyer Shri Chouhan is present. He says that he would like to compound as per the application and the compounding is of his free-will.

The application will be considered at the time of final hearing.â€​

(12) It is further submitted that although the nature of the injuries sustained by the injured Sanjay Patel and Suresh are not disputed, however, in view

of the fact that the incident of assault on the injured Suresh and Sanjay Patel, took place in front of the house of the accused persons, therefore, it is

clear that the injured persons were the aggressors and the appellants had acted in exercise of Right of Private Defence. It is further submitted that

since, the complainant Sanjay has compromised the matter, therefore, the effect of compromise may be considered for the purposes of quantum of

sentence. To buttress his contentions, the Counsel for the appellants have relied upon the judgment passed by the Supreme Court in the case of Hasi

Mohan Barman and another Vs. State of Assam and another reported in 2008 (1) G.L.H. 523 and submitted that the period of jail sentence already

undergone by the appellants would serve the ends of justice, as the incident had taken place in the year 1994 and more than 24 long years have passed

and the appellants were young lads at the time of incident. It is further submitted that even otherwise, the prosecution witnesses have changed their

original version, and have stated in the evidence that Sanjay had caused knife injury the injured Sanjay and accordingly, the Trial Court, itself has

acquitted the appellant Pradeep for charge under Section 307 of I.P.C. and has convicted him under Section 307/34 of I.P.C.

(13) Per contra, it is submitted by the Counsel for the State that the Trial Court after appreciating the evidence which has come on record has passed

a well reasoned order, and the evidence of the witnesses is trustworthy therefore, the appeal filed by the appellants may be dismissed.

(14) Heard the learned Counsel for the parties.

(15) As the nature of the injuries sustained by the injured Sanjay and Suresh have not been challenged by the appellants, therefore, it would not be

necessary to consider the evidence of the Dr. Pradeep Goyal (P.W.10) and Dr. Arun Kumar Mishra (P.W.12). Accordingly, considering the M.L.C.,

Ex. P.12,, Bed Head Ticket, Ex. P.14, and Query report, Ex. P.15 of Sanjay and M.L.C. Ex. P.13 of Suresh as well as the evidence of Dr. Pradeep

Goyal (P.W.10) and Dr. Arun Kumar Mishra (P.W.12), it is held that the injured Suresh (P.W.1) had sustained simple injury, whereas the injured

Sanjay (P.W.3) had sustained stab wound in his chest which was dangerous to life. Accordingly, the findings given by the Trial Court with regard to

the nature of the injuries sustained by the injured Suresh (P.W.1) and Sanjay (P.W.3) are hereby affirmed.

(16) It is next contended by the Counsel for the appellants that according to the prosecution case, the incident took place in two parts. By referring to

the evidence of Sanjay (P.W.3), it is submitted that according to this witness, on 18-12-1994, the injured had gone to Pandrinath Dharamshala along

with Rajesh, where they found that the appellant Mukesh was having hot altercation with some boys and Rajesh tried to intervene in the matter, at that

time the appellant Pradeep and co-accused Sanjay also came on the spot. In the meanwhile, Rajesh sustained a knife injury on his thigh (Appellants

have not been tried for causing injury to Rajesh). Thereafter, this witness took Rajesh to his house on a rickshaw. The mother of Rajesh instructed

that the matter be informed to the mother of co-accused Sanjay. Therefore, this witness along with Rajesh went to have a talk with the mother of

Sanjay.4-5 minutes thereafter, the appellants also came there, as a result of which, there was a scuffle with Rajesh. The appellants and co-accused

Sanjay had knives in their hands. This witness was trying to pacify the situation, however, the co-accused Sanjay caused knife injury to this witness

and therefore, this witness told Rajesh that since, he has sustained injury, therefore, he would go. This witness and Rajesh tried to run away, but they

were chased by the accused persons and this witness, some how succeeded in escaping. He met with a friend namely Devendra who brought him to

the police station, where he informed the police personals that the co-accused Sanjay has caused knife injury to him.

(17) Thus, it is submitted by the Counsel for the appellants, that it is clear from the evidence of the injured Sanjay (P.W.3), that in the first part of

incident, some dispute arose between the appellants and co-accused Sanjay and Rajesh as a result of which Rajesh sustained a knife injury and on the

instructions of the mother of Rajesh, this witness and Rajesh went to talk to the mother of the co-accused Sanjay, where there was a scuffle, and the

co-accused Sanjay caused knife injury to this witness. It is further submitted that the evidence of Sanjay (P.W.3) is in direct conflict with the evidence

of Suresh (P.W.1). Sanjay (P.W.3) doesnot speak about the presence of Suresh on the spot, but he has stated that in fact Rajesh had sustained the

knife injury and none of the accused was tried for causing injury to Rajesh, because in fact, Rajesh had not sustained any injury. It is further submitted

that Suresh (P.W.1) has stated that he and Sanjay (P.W.3) had sustained injuries in one incident only. It is further submitted that the initial prosecution

story was that the knife injury to Sanjay (P.W.3) was caused by the appellant Pradeep, however, in the Court evidence, since, the witnesses had

stated that the knife injury to the injured Sanjay (P.W.3) was caused by co-accused Sanjay, therefore, the appellant Pradeep has been acquitted by the

Trial Court for offence under Section 307 of I.P.C. and has been convicted under Section 307/34 of I.P.C. Thus, it is clear that there is no allegation

against the appellant Pradeep of having caused any injury to any of the injured person. Further, it is submitted that if the evidence of Sanjay (P.W.3) is

considered in its proper perspective, then it would be clear that after the first part of the incident took place, then in fact it was the Sanjay and Rajesh,

who came to the house of the co-accused Sanjay, where admittedly, the second part of the incident took place. It is submitted that the explanation

given by Sanjay (P.W.3) clarifying the reasons for coming to the house of co-accused Sanjay is nothing but an after thought and thus, it is clear that in

fact, Sanjay (P.W.3), Rajesh were the aggressors and they came to the house of the co-accused Sanjay and thus, it is clear that the prosecution has

not only suppressed the very genesis of the incident, but has also changed the place of incident and thus, the prosecution evidence is not reliable.

(18) Considered the submissions made by the Counsel for the appellants. True it is that the incident of assault on Sanjay (P.W.3), took place in front of

the house of the co-accused Sanjay, therefore, the next question for determination would be that whether the injured was the aggressor and whether

the appellants had right of private defence and whether they have exceeded their right of private defence.

(19) It is clear from the evidence of Sanjay(P.W.3) that in the first part of incident, there was some hot altercation between the appellant Mukesh and

some unknown persons and Rajesh was trying to intervene in the matter and during that he sustained a knife blow on his thigh. However, none of the

accused has been tried for causing injury to Rajesh, which clearly means that Rajesh had not sustained any injury at all. Thereafter, admittedly, Sanjay

(P.W.3) along with Rajesh came to the house of co-accused Sanjay, where the incident of assault on Sanjay (P.W.3) took place. Even according to

the spot map, Ex. P.14, the incident took place in front of the house of the co-accused Sanjay. Thus, it is clear that in fact the injured Sanjay (P.W.3)

and Rajesh (P.W.2) went to the house of Sanjay where the incident took place. However, it is not the case of the appellants that Sanjay (P.W.3) and

Rajesh (P.W.2) were armed with any weapon, or any of the appellant was caused any injury by Sanjay (P.W.3) and Rajesh (P.W.2). Merely because

Sanjay (P.W.3) and Rajesh (P.W.2) had gone to the house of the co-accused Sanjay bare handedly, it would not mean that any reasonable

apprehension had arisen in the minds of the appellants giving them a right of private defence for using a knife. Thus, it is clear that the appellants have

failed to point out any situation which had given any reasonable apprehension in their mind, thereby giving a right of private defence of causing injuries

to Sanjay (P.W.3) by means of knife . Thus, it is clear that the appellants had exceeded their right of private defence.

(20) So far as the injury caused to the injured Suresh (P.W.1) is concerned, the evidence of Suresh (P.W.1) is reliable and nothing could be pointed

out by the Counsel for the appellants, which may make the evidence of Suresh (P.W.1) untrustworthy. Thus, it is proved that the appellant Mukesh,

caused simple injury to the injured Suresh (P.W.1) on his thigh by means of a knife.

(21) Since, the presence of the appellant Pradeep on the spot was not innocent presence and thus, it is held that he was sharing common intention with

other three accused persons, and accordingly, the appellant Pradeep is held guilty of committing offence under Section 307/34, and 324/34 of I.P.C.,

and the appellant Mukesh is held guilty of committing offence under Section 324,307/34 of I.P.C.

(22) So far as the question of quantum of sentence is concerned, no minimum sentence is provided for offence under Section 307 and 324 of I.P.C.

As already held that in fact it was the injured Sanjay (P.W.3) and Rajesh (P.W.2), had gone to the house of the co-accused Sanjay and thus, it can be

safely said that they were the aggressors, however, as they were bare handed, therefore, it has already been held that in fact the appellants had

exceeded their right of private defence. During the pendency of this appeal, the injured Sanjay (P.W.3) has filed an application for compromise. He

had also made a statement before this Court with regard to his willingness to enter into a compromise with the appellants. It is well established

principle of law that where the offence is non-compoundable, then the accused cannot be acquitted on the basis of the compromise entered into

between the parties at the stage of appeal. However, the factum of compromise can always be taken into consideration for assessing the quantum of

sentence. The Supreme Court in the case of Hasi Mohan Barman (Supra) has held as under :-

''9. There are some decisions of this Court wherein the factor of compromise between the accused and the complainant (or injured or person

aggrieved) has been taken into consideration for reducing the sentence.

The first decision on this point was rendered by this Court in Ram Pujan and others vs. State of Uttar Pradesh(1973) 2 SCC 456, wherein the trial

court had convicted the accused under Section 326IPC which is a non-compoundable offence and had sentenced the accused to four years R.I. The

High Court took into consideration the compromise between the accused appellant and the injured and reduced the sentence to two years R.I. This

Court, after observing that the fact of compromise can be taken into account in determining the quantum of sentence, reduced the sentence to the

period already undergone which was little more than four months and further imposed a fine of Rs.1500/- on each of the appellants.Surendra Nath

Mohanty and another vs. State of Orissa(1999) 5 SCC 238 is a decision of a Bench of three learned Judges. It was observed that in view of the

legislative mandate contained in Section 320Cr.P.C. an offence can be compounded only in accordance with the provisions of the said section. The

Court followed the view taken in the case of Ram Pujan (supra) and having regard to the fact that the parties had compromised and a period of ten

years had elapsed from the date of the incident reduced the sentence of five years R.I. imposed under Sections 307 and 326 IPC to the period of

sentence already undergone which was three months and also imposed fine of Rs.5,000/-.

There are several other decisions of this Court wherein factor of compromise has been taken into consideration and the sentence has been

reduced mostly to the period already undergone and they are Bankat and another vs. State of Maharashtra(2005) 1 SCC 343,Badrilal vs. State of

M.P. (2005) 7 SCC 55 and Jetha Ram and others vs. State of Rajasthan(2006) 9 SCC 255.

Following the view taken in the above noted cases we are of the opinion that the complainant and the principal accused having already married it

will be in the interest of justice if the sentence is reduced to the period already undergone. The appeal is accordingly partly allowed. The conviction of

the appellants under Section 313 IPC is maintained but the sentence is reduced to the period already undergone which appears to be about ten months.

The fine imposed upon the appellants is also set aside. The appellants are on bail. Their sureties and bail bonds are discharged.''

(23) In the present case, the appellant Pradeep had remained in jail for a period of 12 days during trial and has remained in jail for a period of

approximately 50 days after his conviction. Similarly, the appellant Mukesh had remained in jail for a period of 12 days during trial and has remained in

jail for 50 days after his conviction. Thus, it is clear that both the appellants have remained in jail for a period of more than 2 months. Under the facts

and circumstances of the case, as well as in view of the fact that Sanjay (P.W.3) had compromised the dispute, (although there is no application for

compromise by another injured Suresh (P.W.1)), as well as the fact that the incident took place in the year 1994 and 24 long years have passed, this

Court is of the considered opinion, that Jail sentence of rigorous imprisonment of 7 years and 6 months respectively for offence under Section 307/34

and 324 or 324/34 of I.P.C. can be reduced to the period already undergone by the appellants, by enhancing the fine amount. Considering the nature

of injuries sustained by the injured Sanjay (P.W.3) and Suresh (P.W.1), for offence under Section 307/34 of I.P.C., the appellants Pradeep and

Mukesh are awarded the jail sentence of period already undergone by them and a fine of Rs. 25,000/- and for offence under Section 324 of I.P.C., the

appellant Mukesh is awarded the jail sentence of period already undergone by him a fine of Rs. 15,000/-whereas for offence under Section 324/34 of

I.P.C., the appellant Pradeep is awarded the jail sentence of period already undergone by him and a fine of Rs.15,000/-. The enhanced fine amount

shall be payable within a period of 3 months from today, otherwise, the jail sentence awarded by the Trial Court shall automatically get revived.

(24) With aforesaid modification, the judgment and sentence dated 20-4-1999 passed by 13th A.S.J., Indore in S.T. No. 119/1995, is hereby affirmed.

(25) The appellants are on bail. Their bail bonds and surety bonds stand discharged. In case, if either of the appellants fails to deposit the enhanced

fine amount, then they shall be under obligation to immediately surrender before the Trial Court for undergoing the remaining jail sentence.

(26) The appeals succeed and are Allowed in part.