Sudan vs State of Madhya Pradesh

Hon''ble Shri Justice N.K. Gupta

The appellant has preferred this appeal against the judgment dated 30.08.2010 passed by the 3rd Additional Sessions Judge to the 5th Additional Sessions Judge, Chhindwara in S.T. No.149/10, whereby the appellant was convicted for the offences punishable under Sections 326 & 324 of IPC and sentenced for five years'' R.I. with fine of Rs. 1,000/-and one year''s R.I. with fine of Rs. 500/-respectively. In default of payment of fine, he was to undergo for six months'' and three months'' R.I. respectively. The prosecution''s case in short is that, on 25.2.2010 at about 9:30 a.m. in the morning, the complainant Savita (PW-2) was working near a dam with her mother Dukhiya Bai (PW-5) then, the appellant came to the spot and started quarrel with the victim Dukhiya Bai. He had blamed that as to why his wife was kept by the victim Dukhiya Bai, mother-in-law of the appellant. After abusing her for sometime, he assaulted the victim Dukhiya Bai with a sword causing injuries on her right eye, head and back at scapula region. The complainant Savita intervened in the matter then, the appellant also assaulted her by the sword causing her injuries near the right thumb and on the right hand. The complainant Savita took the victim Dukhiya Bai to the Government Hospital, Damua for her treatment and also lodged an FIR Ex.P/4 at Police Station, Damua. Dr. R.K. Vishwakarma (PW-1) had examined the victim Dukhiya Bai and gave a report Ex.P/1. He found three injuries to the victim Dukhiya Bai, 1st on the right head, 2nd near the right eye and 3rd on the right arm. She was referred for her x-ray examination. Dr. Nema (PW-8) in the C.T. scan of the victim Dukhiya found that there was a depressed fracture of her right fronto temporal bone. Dr. Vishwakarma had also examined the complainant Savita and gave his report Ex.P/2. He found two incised wound to the complainant Savita, 1st on the right thumb and 2nd on the right knee. She was also referred for the x-ray examination but no bony injury was found to the complainant Savita. After due investigation, a charge sheet was filed before the J.M.F.C. Damua, who committed the case to the Sessions Court, Chhindwara and ultimately, it was transferred to the 3rd Additional Sessions Judge to the 5th Additional Sessions Judge, Chhindwara.

The appellant abjured his guilt. He did not take any specific plea but he has stated that his wife Parvati Bai was wrongly detained by the victim Dukhiya Bai and therefore, to create a pressure, the appellant was falsely implicated in the matter. However, no defence evidence was adduced by the appellant.

After considering the prosecution''s evidence, the learned 5th Additional Sessions Judge convicted the appellant for the offences punishable under Sections 326 & 324 of IPC and sentenced him as mentioned above.

During the pendency of this appeal, the complainant Savita as well as the victim Dukhiya Bai have submitted the applications for seeking permission to do the compromise and therefore, they were examined before the concerned Registrar Judicial and it is found that they were willing to do the compromise with their free consent. It was directed that the compromise matter will be considered at the time of the judgment.

I have heard the learned counsel for the parties.

The learned counsel for the appellant has submitted that the appellant was falsely implicated in the matter due to the fact that his wife was kept in the house of the victim Dukhiya Bai and the victim Dukhiya Bai had created a pressure by lodging a false report against him. In alternate, it is submitted that a compromise took place between the parties and therefore, since the offence punishable u/s 324 of IPC is compoundable, it is prayed that the compromise applications may be accepted, whereas in the light of the compromise, the sentence of the appellant may be reduced to the period, which he has already undergone in the custody.

On the other hand, learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be appropriate and no any change is required in the circumstance at present. The offences under Sections 326 & 324 of IPC are not compoundable. The offence punishable u/s 324 of IPC became non-compoundable from 31.12.2009 and since the incident took place on 25.2.2010, the offence punishable u/s 324 of IPC should be treated as non-compoundable offence and therefore, the compromise applications cannot be accepted.

After considering the submissions made by learned counsel for the parties and looking to the prosecution''s evidence, it is to be considered that as to whether the appellant cannot be convicted for the offences punishable under Sections 324 & 326 of IPC? whether the compromise applications can be accepted and; whether the sentence can be reduced?

Savita (PW-2) and Dukhiya Bai (PW-5) have stated that the appellant assaulted the victim Dukhiya Bai with a sword causing her three injuries and when the complainant Savita intervened, the appellant also assaulted her by that sword causing her two injuries. The evidence given by the victim Dukhiya Bai and Savita was duly corroborated by the eyewitness Balabai (PW-6). A suggestion was given to the witness Belabai that she was given the transportation charges by Dukhiya Bai to visit the trial Court but by such suggestion, it cannot be said that the witness Belabai was an interested witness. If she was not in a position to bear the transportation charges and she could not get the transport for the Court, unless she appears before the Court, then if the initial charges were born by the victim Dukhiya Bai then, it makes no difference. It is nowhere established that the witness Belabai was an interested witness. The evidence of the victims is duly corroborated by timely lodged the FIR Ex.P/4 and also Dr. Vishwakarma found the injuries of that nature, which could be caused by a sword to the places on the bodies of the victims, where they have claimed to be caused by the appellant and one of the injuries caused by the appellant was grievous in nature. Under such circumstances, the statements of the victims are also corroborated by the medical evidence.

The appellant took a plea that he was falsely implicated in the matter because the victim Dukhiya Bai kept his wife in her house. If Parvati Bai, wife of the appellant was being harassed by the appellant, therefore, it was the duty of her mother to give a shelter to her daughter. If Parvati Bai was residing in the house of the victim Dukhiya Bai, then it cannot be said that she was confined or detained to harass the appellant. If the appellant was falsely implicated, then there is no reason as to how such injuries were caused to the victims Dukhiya Bai and Savita. The appellant could not show any enmity with the complainant and the victim. Looking to the facts and circumstances of the case, there is no evidence to show that the appellant was falsely implicated in the matter. On the contrary, the testimony of the victims is duly corroborated by the eyewitness Belabai, timely lodged FIR Ex.P/4 and the medical report, therefore, it is proved that the appellant assaulted the victim Dukhiya Bai with a sword causing her some injuries and out of them, one was grievous in nature. Similarly, he also assaulted the complainant Savita causing her some injuries.

At the time of incident, the victims were working near a dam and nothing has been done by the victims so that a right of private defence would have arisen in favour of the appellant. Similarly, no overt act of the victim is proved so that it can be said that the appellant was given any sudden or grave provocation from their side. The appellant had a sword at the time of incident, and he knew that what would be the effect of assault to anyone by a sword. However, he knew the result of the assault after his first assault but he continued to assault the victim Dukhiya Bai for three times and therefore, it is apparent that he had voluntarily caused grievous hurt to the victim Dukhiya Bai and he had voluntarily caused hurt to the complainant Savita and hence, he is guilty of the offence punishable u/s 326 of IPC for the victim Dukhiya Bai and the offence punishable u/s 324 of IPC for the victim Savita. Learned Additional Sessions Judge has rightly convicted the appellant for such offences.

So far as the compromise applications are concerned, the offence punishable u/s 326 of IPC is not compoundable from the very beginning, whereas the offence punishable u/s 324 of IPC was compoundable till 31.12.2009 but due to an amendment in the Cr.P.C., the offence punishable u/s 324 of IPC became non-compoundable from 31.12.2009. In the present case, the incident took place in the year 2010 and therefore, at the time of incident, the offence punishable u/s 324 of IPC was not compoundable and still it is not compoundable. Under such circumstances, the application for seeking permission to do the compromise cannot be accepted for such offences, which are not compoundable. Hence, both the applications filed for the compromise are hereby dismissed. However, the factum of compromise may be considered at the time of passing the sentence.

As far as the sentence is concerned, the appellant was 30 years old at the time of incident and therefore, he was matured. He had not expected to assault his mother-in-law and sister-in-law in such a manner. He has faced the trial and appeal only for 2-3 years. However, the factum of compromise may be considered for the assessment of his sentence. Dukhiya Bai, mother-in-law of the appellant and Savita, sister-in-law of the appellant were kind enough to the appellant so that they applied for permission to compromise with the appellant and they had shown their free consent for the compromise. It appears that such compromise took place in the betterment of the matrimonial life of Parvati Bai, wife of the appellant and therefore, if the appellant is sent to the jail for a longer period then, the marital life of Parvati Bai will come into the trouble. She will not get the earnings for her maintenance, if the appellant is sent to the jail again. The appellant remained in the custody for five months & 26 days at present. He remained in the custody for 33 days during the trial and thereafter, he remained in the custody for four months and 23 days during this appeal. Looking to his custody period, future prospects relating to the marital life of his wife, it is a fit case in which the sentence imposed upon the appellant may be reduced to the period, which he has already undergone in the custody. Similarly, the appellant could not deposit the fine amount before the trial Court, therefore, if the fine imposed upon him is not removed then he has to undergo the default sentence, which will defeat the object of the compromise. Under such circumstances, it would be proper that fine imposed upon the appellant may also be removed.

On the basis of aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. The conviction for the offences punishable under Sections 324 & 326 of IPC directed against him is hereby maintained but the sentence is reduced to the period, which he has already undergone in the custody. Also the fine imposed upon the appellant is hereby removed.

At present, the appellant is on bail and therefore, his presence is no more required. Hence, it is directed that his bail bonds shall stand discharged. Copy of the judgment be sent to the trial Court alongwith its record for information and compliance, if any.