Radheshyam and others vs The State of M.P.

Appellants have filed this appeal against the judgment dated 16.07.1998 passed in Sessions Trial No.197/1996 by the Court of Ist Additional Sessions Judge Sehore. The trial Court found each of the appellant guilty for commission of offence punishable under Sections 148, 326 read with Section 149 and 325 read with Section 149 of IPC and awarded a sentence RI for one year with fine of Rs. 1000/- in the first count, RI for four years with fine of Rs.4000/- in the second count and R.I. for three years with fine of Rs.3000/- in the last count.

Prosecution story in brief is that, on 13.10.1996 complainant Ghisilal and his brother Radheshyam had been sowing gram in their fields. At that time, accused persons Ramkishan Khati, Dinesh Khati, Rajaram, Santosh and Radheshyam came there and they had inflicted injuries on the complainant Ghisilal and Hiralala by farsi [sharp edged weapon] and lathis. After hearing cry, the other persons were also reached on the spot. The report of the incident

was lodged on the same day at the Police Station Icchawar. The police conducted the investigation and filed the charge sheet. The appellants abjured the guilt. The trial Court held the appellants guilty for commission of offence under Sections 148, 326 read with Section 149 and 325 read with Section 149 of IPC and awarded sentence as mentioned above. Conviction of the appellants is based on the evidence of injured eye witnesses i.e. (PW-1) and (PW-2) respectively.

(PW-1) Ghisilal deposed that he along with his brother were sowing gram in the fields of Hiralal. At that time, the accused Ramkishan, Dinesh, Rajaram, Madan, Redheshyam came from a fencing. Accused Madan was armed with lathi and other accused persons were armed with Farsi. Ramkishan, Madan and Radheshyam had beaten me. Ramkishan inflicted a blow of Farsi on my right hand and Radheshyam inflicted injury on my head and Madan had inflicted a blow of lathi. Dinesh Madan and Santosh had beaten my brother Hiralal. After hearing the cry, Omprakash, Dhir Singh and Badri had reached on the spot. Thereafter, the report of the incident was lodged at the Police Station by me which is Ex.P.1.

(PW-2) Hiralal deposed that he and his elder brother were sowing gram in my field at that time, the accused persons Ramkishan, Dinesh, Santosh, Rajaram, Radheshyam and Madan came from the fencing. Madan was armed with Lathi and other persons were armed with Farsi. They had beaten me and my brother. Dinesh had inflicted blow on my right hand and second blow also on my right hand. Rajaram had inflicted blow of Farsi on my left leg. Madan had inflicted blow of lathi on my left hand finger. Dhir Singh

and Badri came there on the spot. The report of the incident was lodged at the Police Station.

(PW-3) Omprakash deposed that he had reached on the spot and he had along with Hiralala and Ghisilal went to the Police Station Icchawar.

(PW-8) Dr. A.K. Juneja, Assistant Surgeon deposed that he was posted at Community Health Center Icchawar on 13.10.1996. He had examined Hiralal S/o Narbad and noticed following injuries on his body:-

(1) Incised wound on left right hand leg 12 cm x 4cm. (2) Incised wound on left leg 3 cm x 2 cm on muscle deep. (3) Swelling 6 cm x 6 cm at the left leg. (4) Incised wound 2 cm x 1 cm Muscle deep on left hand. (5) Swelling on forearm (6) Swelling on first, second and third metacarpal on left hand. (7) Incised wound at ring finger of right hand 4 cm x 3 cm x 1 cm.

Injuries were caused by hard and blunt and hard and sharp edged weapon.

He further deposed that he had examined Ghisilal S/o Narbad, on the same day and noticed following injuries on his body:-

(1) Incised wound 12 cm x 6 cm muscle deep.

(2) Incised wound 8 cm x 2 cm on right forearm.

(3) Lacerated wound right frontal parietal region.

(4) Swelling in first and second metacarpal

(5) Swelling 6 cm x 4 cm inn left arm.

Injuries were caused by hard and sharp edged weapon.

(PW-13) C.L. Sonkar Investigating Officer deposed that he had conducted the investigation after lodging the FIR (Ex.P.1). The injured were sent for medical examination. Thereafter, X-ray report was taken. The accused were arrested on 31.10.1996 (Ex.P.5). Recoveries were made and spot map was also prepared.

From the evidence of prosecution witnesses and injuried eye witnesses, in my opinion, the trial Court has rightly held the appellants guilty for commission of offence punishable under Sections 148, 326 read with Section 149 and 325 read with Section 149 of IPC.

During pendency of the appeal, the appellants and complainants both have filed compromise application [I.A. No.1023/2017]. Registrar (J-) recorded the compromise and recorded following findings.

"Vide order dated 17.11.2016 Hon''ble the Court has directed to verify and record the compromise between accused/appellants and complainants.

Complainants Heeralal and Ghisilal (complainant/injured before lower Court as per record) present in person and identified by their counsel Shri Kuldeep Singh.

Accused/appellant no.1 Radheshyam, no.2 Dinesh, no.3 Santosh, no.5 Madan, no.6 Rajaram persent in person and identified by their counsel Shri Hemant Sen.

Accused/appellant no.4 is dead his name is delete vide court order 27.04.2015.

Complainants and appellants mentioned above submit that they bear cordial relations and are ready and willing to resolve their disputes voluntarily and by free consent. They also have expressed in clear, unequivocal terms that there is peace between complainants and Accused/appellants and both are entering into compromise in cross cases. (Application for compromise has been filed by Ghisilal and Radheshyam, Dinesh, Santosh, Madan and Rajaram alongwith affidavit of Ghisilal and Dinesh Kumar). Injured Hiralal is present and has orally mentioned that he is also entering into compromise with the appellants on his free will and without any undue pressure or coercion. Kin attention is brought to the fact that injured Heeralal is not signatory to the compromise deed.

In the light of the aforesaid factual position it is clear that the complainants are willing to settle their dispute without undue influence or coercion.

The Accused/appellants have been convicted and sentenced u/s 326 r/w 149 and 325 r/w 149 IPC . Kind attention is brought to the fact that offence u/s 326 is not compoundable as per Section 320 of Cr.P.C. Kind attention is brought to the fact that injured Heeralal is not signatory to the compromise deed."

This Court has observed that there is no signature of Hiralal- complainant. I have perused the order sheet dated 17.11.2016. In

the aforesaid order sheet, there is a signature of Hiralal and he has

also signed the compromise application. Prima facie the compromise

appears to be voluntary and bonafide.

The Apex Court in the case of Yogendra Yadav and others vs State of Jharkhand and another, (2014) 9 SCC 653 has quashed criminal proceedings against the accused persons for the offences punishable under Sections 326 and 307 read with Section 34 of the IPC on the basis of compromise. The Apex Court has held as under:

"4. Now, the question before this Court is whether this Court can compound the offences under Sections 326 and 307 of the IPC which are non- compoundable? Needless to say that offences which are non-compoundable cannot be compounded by the court. Courts draw the power of compounding offences from Section 320 of the Code. The said provision has to be strictly followed ( Gian Singh v. State of Punjab ). However, in a given case, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no

objection, even though the offences are non- compoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace.

In Gian Singh this Court has observed that:

"58. Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor."

Needless to say that the above observations are applicable to this Court also."

The Apex Court in the case of Narinder Singh and others vs State of Punjab and another, (2014) 6 SCC 466 has also quashed the criminal proceedings registered under Section 307 of the IPC on the basis of compromise. The Court has held as under:

"17. We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the

sentence/punishment the Court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the Court, particularly in those cases where the crimes committed are heinous in nature or depicts depravity, or lack morality. At times it is to satisfy the element of "emotion" in law and retribution/vengeance becomes the guiding factor. In any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious namely cases involving heinous crime with element of criminality against the society and not parties inter-se. In such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. Cases of murder, rape, or other sexual offences etc. would clearly fall in this category. After all, justice requires long term vision. On the other hand, there may be, offences falling in the category where "correctional" objective of criminal law would have to be given more weightage in contrast with "deterrence" philosophy. Punishment, whatever else may be, must be fair and conducive to good rather than further evil. If in a particular case the Court is of the opinion that the settlement between the parties would lead to more good; better relations between them; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal. It is a delicate balance between the two inflicting interests which is to be achieved by the Court after examining all these parameters and then deciding as to which course of action it should take in a particular case.

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Thus, we find that in certain circumstances, this Court has approved the quashing of proceedings under

section 307, IPC whereas in some other cases, it is held that as the offence is of serious nature such proceedings cannot be quashed. Though in each of the aforesaid cases the view taken by this Court may be justified on its own facts, at the same time this Court owes an explanation as to why two different approaches are adopted in various cases. The law declared by this Court in the form of judgments becomes binding precedent for the High Courts and the subordinate courts, to follow under Article 141 of the Constitution of India. Stare Decisis is the fundamental principle of judicial decision making which requires ''certainty'' too in law so that in a given set of facts the course of action which law shall take is discernable and predictable. Unless that is achieved, the very doctrine of stare decisis will lose its significance. The related objective of the doctrine of stare decisis is to put a curb on the personal preferences and priors of individual Judges. In a way, it achieves equality of treatment as well, inasmuch as two different persons faced with similar circumstances would be given identical treatment at the hands of law. It has, therefore, support from the human sense of justice as well. The force of precedent in the law is heightened, in the words of Karl Llewellyn, by "that curious, almost universal sense of justice which urges that all men are to be treated alike in like circumstances."

In this view of the matter and keeping in mind the principle of law laid down by the apex Court, the appeal filed by the appellants is partly allowed. The judgment of the trial Court in regard to holding the appellants guilty for commission of offence punishable under Sections 148, 326 read with Section 149 and 325 read with Section 149 of IPC is hereby upheld. However, the sentence awarded by the trial Court is modified till the extent of already undergone. The appellants are on bail, their bail bonds are discharged.