Rajesh Yadav @ Raju Yadav vs State of M.P.

Brij Kishore Dube, J.—Feeling aggrieved by the judgment of conviction and order of sentence dated 08/05/2013 passed by the Sessions Judge, Gwalior in Sessions Trial No. 56/2012 (State of M.P. Vs. Rajesh Yadav @ Raju Yadav) convicting the appellant/accused u/s 326 of IPC thereby sentenced him to suffer three years rigorous imprisonment with fine of Rs. 5,000/-, the appellant preferred this appeal u/s 374 of the Code of Criminal Procedure, 1973 (for short, the Code). The facts of the case have been detailed in the impugned judgment by the Trial Court and, therefore, this Court does not want to repeat the same overall again.

Learned counsel appearing on behalf of the appellant submits that the appellant does not want to challenge the finding of conviction recorded by the learned Trial Court. He further submits that the complainant, Soni Parihar (P.W. 1) has settled the dispute in regard to the offence amicably with the appellant and filed an application being I.A. No. 6285/13 alongwith his affidavit u/s 320(5) of the Code for granting permission to compound the offence and compromise with the accused. The compromise has been recorded by the OSD/Registrar of this Court on 03/07/13. It is further submitted that the appellant undergone 07 months 03 days of the sentence and has no previous criminal conduct and, therefore, the learned counsel prays for reduction of the jail sentence to the period already undergone by the appellant. Learned counsel placed reliance upon the case of Kanhaiyalal Vs. State of M.P., 1985 MPWN SN 336.

The learned counsel for the complainant submits that the complainant, Soni Parihar settled the subject-matter of the crime with the appellant amicably and now he does not want to prosecute the appellant and, therefore, on the basis of the compromise, the appellant may be discharged from the offence. In this regard, learned counsel drawn attention of this Court to the order sheet dated 03/07/13 recorded by the OSD/Registrar of this Court. It is apposite to mention here that in compliance of the order passed by this Court, the OSD/Registrar on 03/07/2013 verified the genuineness and correctness of the compromise application and submitted that both the parties have settled their dispute voluntarily without any fear or force amicably and entered into a compromise and compounded the offence with the appellant and the complainant does not want to prosecute the appellant.

Since the appellant has been convicted u/s 326 of IPC which is not compoundable, however, the matter was compromised by the complainant with the accused and they wanted to live in peace, the same shall be considered at the time of awarding the sentence.

Learned Trial Court after appreciating the evidence on record found guilt of the appellant. In view of the reasons assigned by the learned Court below for convicting the appellant to be trustworthy, this Court does not want to deviate from the same. As before this Court, the finding of conviction recorded by the learned Trial Court against the appellant has not been challenged by the appellant, hence, the aforesaid finding is hereby affirmed.

With regard to the sentence awarded is concerned, the appellant has been sentenced by the learned Trial Court as stated hereinabove. No previous criminal conduct of the petitioner has been proved by the prosecution. As per the record, the appellant remained under detention for 93 days (from 05/11/2011 to 07/02/2012) during the trial and from 29/04/2013 till date continuously serving the sentence.

In the case of Kanhaiyalal (supra), the appellant, Kanhaiyalal was convicted u/s 307 of the Code and sentenced to serve 04 years rigorous imprisonment. That Order was challenged before this Court. After considering the entire evidence on record, a Division Bench of this Court held that the nature of injury was not fatal and, therefore, by acquitting the appellant u/s 307 of IPC altered his conviction u/s 326 of IPC and sentenced for the said offence to the period already undergone by him, i.e., 15 days with fine of Rs. 1,000/-.

In the present case, the incident had taken place on 03/11/2011, the accused is a labourer and had already suffered the sentence of 93 days (from 05/11/2011 to 07/02/2012) during the trial and from 29/04/2013 till date continuously serving the sentence. The offence has also been compounded by the complainant. Under these circumstances, the ends of justice would be sub-served, if the jail sentence of the appellant is reduced to the period already undergone by him with fine as imposed by the Court below.

Consequently, this appeal is allowed in part. The conviction of the appellant passed by the learned Trial Court u/s 326 of IPC is hereby affirmed but the sentence is set aside and instead thereof, the appellant is sentenced to the period already undergone by him in jail with fine as imposed by the learned Court below and in default of deposit of the fine amount, he has to undergo additional one month rigorous imprisonment. The appellant is in jail, therefore, he be set at liberty if not required in any other criminal case.

With the aforesaid modification, this appeal is disposed of finally. A copy of this order be sent to the learned Trial Court for necessary compliance.