Smt. Durgawati Devi, Smt. Kanchan Mishra and Rajendra Prasad Mishra alias Bidrohi vs State of U.P.

B.A. Zaidi and Vijay Kumar Verma, JJ.—Challenge in these appeals preferred u/s 374(2) of the Code of Criminal Procedure (in short, "the Cr.P.C."), is to the judgement and order dated 30.06.2007, passed by the Addl. Sessions Judge, Fast Track Court-III, Jaunpur in S.T. No. 212 of 2006 (State v. Pramod Kumar and Ors.), whereby the accused-appellants Smt. Durgawati Devi, Smt. Kanchan Mishra, Rajendra Prasad Mishra and Pramod Kumar Mishia have been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10000/- each u/s 307 read with Section 34 I.P.C. with further imprisonment for one year u/s 323 read with Section 34 I.P.C. However, all the accused-appellants have been acquitted of the charge u/s 504 IPC.

Shorn of unnecessary details, the facts leading to the filing of these appeals, in brief, are that an FIR was lodged on 17.11.2005 at P.S. Buxa, District Jaunpur by the complainant Smt. Mamta Devi Mishra wife of the injured Vinod Kumar Mishra. The case of the prosecution as appearing from the FIR Ext. Ka-2, in brief, is that Sri Vinod Kumar Mishra with his family members was living separate from his brother Pramod Kumar Mishra and parents Rajendra Prasad Mishra and Smt. Durga Devi.

It is alleged that on 10.11.2005 at about 9.15 a.m., when Vinod Kumar Mishra was present in his madha near his house, the accused Rajendra Prasad Mishra, Smt. Durga Devi, Pramod Kumar Mishra and his wife Smt. Kanchan Devi Mishra came there and began to assault the complainant and her husband Vinod Kumar Mishra hurling filthy abuses to them. Smt. Durga Devi brought a firearm from her house and handed over the same to Pramod Kumar Mishra, who on the exhortation of Smt. Kanchan Devi, Rajendra Prasad and Smt. Durga Devi fired shot on Vinod Kumar Mishra, due to which he sustained injuries and fell down there. On hearing the hue and cry, many people from neighbourhood came there and saw the incident.

After sending the injured Vinod Kumar Mishra to Jaunpur Hospital, the complainant handed over written report Ext. Ka-1 at P.S. Buxa, where the then constable Moharrir Ram Nagina Rai prepared chik FIR Ext. Ka-2 and registered a case u/s 323, 504, 307 IPC at crime No. 687 of 2005 on 17.11.2005 at 10.30 a.m. against Pramod Kumar Mishra, Rajendra Prasad Mishra, Smt. Durga Devi and Smt. Kanchan Mishra, entry of which was made in G.D. No. 20 Ext. Ka-3.

The injured Vinod Kumar Mishra was medically examined in District Hospital, Jaunpur on 17.11.2005 at 10.00 a.m. Thereafter, he was referred to the Institute of Medical Science and S.S. Hospital BHU, Varanasi for further treatment.

After investigation, chargesheet was submitted against all the appellants-accused. On the case being committee to the Court of session for trial, charge u/s 307/323 both read with Section 34 IPC and 504 IPC was framed against the appellants-accused, to which they pleaded not guilty and claimed Lo be tried.

The prosecution in order to prove its case examined PW-1 Smt. Mamta Mishra, PW-2 Vinod Kumar Mishra (injured), PW-3 Constable Ram Nagina Rai (scribe of chik FTR), PW-4 Dr. R.K. Jaiswal, PW-5 S.I. Manjay Singh, P.W. 6 Dr. Pradeep Jain and P.W. 7 Dr. R.A. Chakravorty.

In their statements recorded u/s 313 Cr.P.C., the accused persons denying their complicity in the incident have stated that due to enmity they have been falsely implicated in this case.

The learned trial court having taken the entire evidence into consideration convicted and sentenced the appellants-accused as stated in para 1 above. Hence, this appeal.

We have heard Sri V.P. Srivastava, learned senior Advocate assisted by Sri P.M. Tripathi, Advocate appearing for the appellants, Sri K.K. Singh, Advocate for the complainant and Sri K.N. Vajpayee, learned A.G.A. for the State and perused the record.

These appeals have not been pressed on merit, because the parties have settled their dispute outside the Court and they had also filed compromise on 11.04.2008, which was sent for verification to the trial Court concerned vide order dated 11.04.2008.

The compromise was duly verified on 03.05.2008 before the trial Court by the complainant Smt. Mamta Mishra, her husband Vinod Kumar Mishra (injured), and all the accused-appellants. As would appear from the compromise, the appellants-accused paid Rs. 3,00,000/- (Rupees three lac only) to the injured Vinod Kumar Mishra on 12.02.2008 through account payee cheque for his rehabilitation. Rs. 50,000/- have been paid to him subsequently on 07.05.2008 by another account payee cheque.

It is submitted by the learned Counsel for the appellants that although the offence punishable u/s 307 IPC is not compoundable under the provisions of Section 320 Cr.P.C., but since the appellants accused and the injured are of the same family and they have settled their dispute amicably and adequate compensation has also been paid to the injured by the appellants, hence the sentence of imprisonment awarded by the trial Court should be reduced to the period already undergone and amount of fine also be reduced, as the appellants-accused have already paid Rs. 3,50,000/- by way of compensation to the injured.

In support of this submission our attention has been drawn by the learned Counsel 1 for the appellants towards the cases of Shah Noor v. State of Andhra Pradesh (1982) 3 SCC 511 Surendra Nath Mohanty and Anr Vs. State of Orissa, Ram Lal and Another Vs. State of Jammu and Kashmir, and Jalaluddin Vs. State of U.P.,

According to Section 320(1) Cr.P.C., the offence punishable u/s 323 Cr.P.C. is compoundable. Hence, the conviction and sentence of the appellants-accused under this Section may be set-aside on the basis of the compromise and they may be acquitted of the charge u/s 323 read with Section 34 IPC, but the offence punishable u/s 307 IPC is not compoundable and hence, keeping in view the provisions of Section 320(9) Cr.P.C. parties cannot be permitted to compound the offence under this section.

The accused Pramod Kumar Mishra is the real brother of the injured and the appellants Rajendra Prasad Mishra and Smt. Durgawati are his parents, whereas Smt. Kanchan Mishra is the wife of accused-appellant Pramod Kumar Mishra. A settlement has been arrived at between the parties, according to which Rs. 3,50,000/- have been paid as compensation by the appellants to the injured Vinod Kumar Mishra for the injuries sustained by him in the alleged incident Now both the parties are living peacefully The main accused-appellant Pramod Kumar Mishra is still in jail after conviction on 30.07.2007. Although other appellants have been admitted to bail after conviction but from the supplementary affidavit filed on 14 10.2008, it is revealed that the appellants-accused Smt. Durgawati, Kanchan Mishra and Rajendra Prasad Mishra remained in jail for more than one month during trial and after conviction.

In the cases of Shah Noori v. State of Andhra Pradesh, Surendra Nath Mohanty v. State of Orissa, Ram Lal v. State of J&K and Jalaluddin v. State of UP (supra), the appellants-accused were convicted u/s 326 IPC, but due to the settlement arrived at between the parties, sentence of imprisonment was reduced to the period already undergone by them.

Therefore having regard to the observations made by the Hon''blo Apex Court in the cases referred to herein-above and keeping in view the fact that adequate compensation has been paid by the appellants-accused to the injured Vinod Kumar Mishra and further having regard to the fact that both the parties are living peacefully after amicable settlement arrived at between them and the injured has no grievance now, it would be in the interest of justice if the sentence of imprisonment awarded by the trial court is reduced to the period already undergone by the appellants-accused. Fine also may be reduced as adequate compensation has already been paid to the appellants-accused.

Consequently, both the appeals are partly allowed. Conviction and sentence of the appellants-accused Smt. Durgawati Devi, Smt. Kanchan Mishra, Rajendra Prasad Mishra and Pramod Kumar Mishra u/s 323 read with Section 34 IPC are set-aside on the basis of the compromise and they are acquitted of this charge under the provisions of Section 320(8) of the Code of Criminal Procedure, but affirming their conviction u/s 307 read with Section 34 IPC, the sentence of imprisonment awarded by the trial court vide impugned judgement is reduced to the period already undergone by them and sentence of fine is also reduced to Rs. 2500/- each. In default of payment of fine, they shall undergo imprisonment for six months.

The appellants-accused Rajendra Prasad Rajendra Mishra, Smt. Durgawati Devi, Smt. Kanchan Devi are on bail. On depositing the amount of fine, the surety bonds of the appellants-accused Rajendra Prasad Mishra, Smt. Durgawati Devi, and Smt. Kanchan Mishra will stand cancelled and sureties will be discharged.

The accused-appellant Pramod Kumar Mishra is undergoing sentence in jail. He shall be set at liberty after depositing the amount of fine.

The office is directed to return trial Court record expeditiously along with a copy of this judgement for necessary action.