Shyam Babu and Others vs State of M.P.

P.C. Agarwal, J.

Shyam Babu (A-1) is convicted under Ss. 333, 325/34 of the Indian Penal Code (Code for short) and other appellants are convicted under Ss. 333/34 and 325/34 of the Code. They have been sentenced to undergo R.I. for two years and to pay a fine of Rs. 200/- and to undergo R.I. for one year and to pay a fine of Rs. 100/- and in default to undergo R.I. for one month on each count.

As per prosecution Brijmohan (P.W. 2) is posted as E.D.N.C. in post office Ramnagar. He carries the post bag from post office to load the same to Bus and distributes the letters and other postal articles. On dispute of land, some civil litigation was pending between him and the appellants in which he was successful in the Court of Civil Judge but on appeal, appellants were successful. Anyhow, on 16/11/90, at about 7 A.M. when Brijmohan (P.W. 2) was going by bicycle with a post bag to Bhaura Chauraha, he was surrounded by all the appellants, was abused and belabored. Shyam Babu (A-1) was armed with Farsi, while other appellants were armed with Lathis. On shouts of Brijmohan (P.W. 2) his father, Kaluram rushed to the spot but he too was beaten badly. Post bag and some letters were torn. Gangaram (P.W. 3), Rambharosa (P.W. 4) and Dayaram rushed to the spot and pacified. Brijmohan (P.W. 2) reported the matter to Police Station Fatehgarh situate at a distance of 12 kms. from the spot at 5.30 P.M. vide Ex. P/3. Brijmohan (P.W. 2) was medically examined by Dr. H.H.N. Garg (P.W. 1) who noted in all 10 injuries on different parts of body. There were two lacerated wounds and rest contusions. His father Kaluram had seven contusions on the body. On X-ray photographs being taken, R.K. Jain (P.W. 7). radiologist found fractures of left ulna and right fibula on Brijmohan (P.W. 2) and fractures of left radius and index finger of Kaluram. X-ray plates relating to Kaluram are there on record though X-ray plates pertaining to Brijmohan (P.W. 2) are not there on record, yet, X-ray reports are there. The post bag with cash bag, torn papers of account and envelopes were seized from Brijmohan (P.W. 2) by Police of Fatehgarh vide Ex. P/4. Certificate about employment of Brijmohan (P.W. 2) in post office Ramnager was taken from R.P. Shrivastava (PW. 5), Inspector Post Office. Thus, after due investigation charge sheet under S. 353, 341, 294, 186, 426, 333 was filed against the appellants.

Appellants pleaded not guilty. They claim that they have been falsely implicated.

The trial Court relying upon prosecution evidence has found the appellants guilty and sentenced them as aforesaid.

Prosecution story was fully supported by Brijmohan (P.W. 2), injured complainant, Gangaram (P.W. 3) and Rambharosa (P.W. 4). Their statements have been consistent, natural and probable. F.I.R. (Ex. P/3) is lodged by Brijmohan (P.W. 2) on the same date at PS. Fatehgarh, situate at a distance of 12 kms. from the spot which takes the case of prosecution very far. Dr. H.H.N. Garg (P.W. 1) has medically examined Brijmohan (P.W. 2) and his father Kaluram on 17/11/90 and has noted several injuries on their persons which could be caused by hard and blunt objects. Obviously, these injuries were neither self inflicted not artificial. Dr. R.K. Jain (P.W. 7), radiologist has noted fractures on persons of both Brijmohan (P.W. 2) and his father Kaluram. It is noteworthy, that Kaluram had died before his statement could be recorded in trial Court and thus he was not available for his examination. The appellants have merely denied the offence and claim that they have been falsely implicated. Such offence is merely evasive and does not rebut the case of prosecution. In view of Asa Singh and Others Vs. State of Punjab, and State of Punjab Vs. Jugraj Singh and Others, , conviction of the appellants was not unfounded.

However, Brijmohan (P.W. 2) has applied for permission to compound under S. 320 (2) of the Code of Criminal Procedure. He has entered into a compromise also with the appellants. He could compromise on behalf of his late father Kaluram, being his legal representative. If such compromise is in the interest of better further relations of the parties, it is just and proper to allow Brijmohan (P.W. 2) to compound the compoundable case under S. 325 of the Code. Ramphal and Others Vs. State of M.P., . Parmeshwari Vs. Vennila ( (2000) 10 SCC 348) are the authorities whereby such compromise could be allowed. Obviously, more than 12 years have elapsed since after the occurrence. Hence, permission to compound the compoundable offence is granted to Brijmohan (P.W. 2) and compoundable offence under S. 325 of the Code of Criminal Procedure are allowed to be compounded and in view of compromise, appellants are acquitted under S. 325/34 of the Code.

However, offence under S''s. 333 or 333/34 is non-compoundable. In view of Ram Lal and Another Vs. State of Jammu and Kashmir, and Surendra Nath Mohanty and Anr Vs. State of Orissa, , compounding of non-compoundable offences is not permissible. Anyhow, the fact of composition can be taken into consideration while deciding the question of sentence. About 12 years have elapsed since after the occurrence. Appellants have already undergone detention of 41 days each. In view of these factors, jail sentences awarded to the appellants is reduced to that already undergone. They would pay a fine of Rs. 5000/- each, in default of payment of which they shall undergo R.I. for 6 months.

Thus, appeal allowed in part. Conviction under Ss. 333 and 333/34 is maintained. Sentences modified. Conviction under Ss. 325/34 is set aside. This sentence is substituted for sentence awarded by the trial Court.