Uma Devi Bhadoriya And Another vs State Of Madhya Pradesh

The appellants have preferred this appeal under Section 374 of the Code of Criminal Procedure, feeling aggrieved by the impugned judgment of

conviction and sentence dated 28.01.2011 passed by Second Additional Judge, Gwalior to the Court of First Additional Sessions Judge, Gwalior in

Sessions Trial No.269/2010, whereby the appellant/accused Umadevi has been held guilty for the offences under Section 148 of IPC, sentenced to six

months RI with fine of Rs.200/-, under Section 452/149 of IPC sentenced to one year RI with fine of Rs.200/-, under Sections 307 and 307/149 of

IPC sentenced to five years RI for each offence with fine of Rs.500/- each, and under Section 323/149 of IPC sentenced to three months RI with fine

of Rs.200/-. Similarly, appellant/accused Sonam has been held guilty for the offences under Section 148 of IPC, sentenced to six months RI with fine

of Rs.200/-, under Section 452/149 of IPC sentenced to one year RI with fine of Rs.200/-, under Section 307/149 of IPC (on two counts) sentenced to

five years RI for each each count with fine of Rs.500/- each, and under Section 323 of IPC sentenced to three months RI with fine of Rs.200/-, with

default stipulation. All the sentences were directed to run concurrently.

Brief facts of the case are that son of complainant runs the shop of cyber cafe where one accused Vikas used to come for computer learning.

When on 27.2.2010 complainant's son asked for money from accused Vikas then Vikash refused to give money and threatening the complainant's son

left the place. On the same day, at 3.30 pm complainant Brij Kishore, wife Vimla and son Dharmendra were present in their house, all the accused

persons namely Vikas Bhadoriya and Uma Devi armed with katta, Sonam armed with danda and two-three other persons armed with lathis came to

their house. Accused Vikas asked about whereabouts of Vikas and hurled abuses. When complainant objected to it, then accused Umadevi fired a

gun shot on complainant's son Dharmendra at his left foot; accused Vikas fired gun shot on the wife of complainant Vimla on her thigh; and Sonam

committed marpeet with complainant by kicks and fists. The matter was reported to Police Station Gole Ka Mandir, District Gwalior, on which basis

the police had registered a case at Crime No. 101/2010 for the offences punishable under Sections 452, 307, 294, 147, 148, 149, 323 of IPC; sent the

complainant for medical examination. After due investigation, the charge sheet has been filed against appellants/accused Umadevi and Sonam before

the Chief Judicial Magistrate, Gwalior.

It is pertinent to note here that a separate charge sheet has been filed in respect of accused Vikas before the Juvenile Court.

Both the appellants/accused persons abjured the guilt and their defence is of false implication in this case. Learned trial Court after due appreciation

of the entire evidence on record held the appellants Umadevi and Sonam guilty for the offences and convicted and sentenced them as stated herein

above. Aggrieved by which the appellants have preferred this appeal.

Heard the learned counsel for the appellants as well as the learned Public Prosecutor appearing for the State and perused the record.

It is pertinent to mention that during pendency of this appeal an application (IA No.1485/2019) under Section 320 sub-section (2) of Cr.P.C. has

been filed for disposal of the appeal on the basis of compromise arrived at between the parties.

It is on record that the complainant and the appellants have compromised their dispute and this compromise is willfully as verified by the Principal

Registrar of this Court. As per the report of Principal Registrar, the offence under Section 323 and 323/149 of IPC is compoundable but the offences

under Section 452/149, 307/149 and 148 of IPC are not compoundable.

Thus, in view of the compromise arrived at between the parties, the conviction and sentence of the appellants Umadevi and Sonam for the offences

under Section 323/149 and 323 of IPC respectively, are hereby set aside and the appellants are acquitted from the aforesaid charges.

So far as the conviction and sentence under Sections 452/149, 307, 307/149 and 148 of IPC is concerned, learned counsel for the appellants

submitted that both the parties have amicably solved the dispute and the appellants do not challenge the finding of conviction recorded by the trial

Court against the appellants for the offence under Sections 452/149, 307, 307/149 and 148 of IPC, they only prayed that the appellants have remained

in jail for some time during pendency of this case, therefore, in view of the compromise in between the parties, the jail sentence awarded to appellants

for the offence under Sections 452/149, 307, 307/149 and 148 of IPC may be reduced to the period already undergone by them as held by the Apex

Court in Pappu and others Vs. State of Punjab [AIR 2000 Supreme Court 3633 (2)] wherein, in view of the compromise the jail sentence awarded by

the Courts below U/Sec. 307 of IPC was reduced.

The aforesaid submission is not seriously opposed by the other side.

In this view of the matter, since the offences under Sections 452/149, 307, 307/149 and 148 are not compoundable, therefore, conviction of both

the appellants under Sections 452/149, 307, 307/149 and 148 is affirmed. As regards sentences under Sections 452/149, 307, 307/149 and 148 of the

IPC, it is well settled that compromise of the parties can be taken into consideration on the point of awarding the sentence even when the relating

offence is not compoundable. Hence, taking into account the factum of compromise between the parties and the fact that the appellant No.1-Umadevi

is a widow lady, the case is pending since 2011, the sentences of six months RI with fine of Rs.200/- for the offence under Section 148 IPC, and one

year RI with fine of Rs.200/-under Section 452/149 awarded by the trial Court against both the appellants are hereby affirmed. However, the

sentence of five years RI with fine of Rs.500/- awarded against appellant-Umadevi for each offence under Section 307 and 307/149 of IPC is

reduced to the period of two years RI with fine of Rs.500/- for each offence under Sections 307 and 307/149 of IPC. Similarly, the sentence of five

years RI with fine of Rs.500/- awarded against appellant-Sonam for offence under Section 307/149 of IPC (on two counts) is reduced to the period of

two years RI with fine of Rs.500/- for offence under Section 307/149 of IPC (on two counts). The fine amount, if not already deposited, shall be

deposited within a period of thirty days from today, failing which the appellants shall suffer additional imprisonment as per judgment passed by the trial

Court against the respective offence. The period already undergone by the appellants shall be adjusted towards the above mentioned sentence

imposed by this Court. The fine amount, if already deposited by the appellants imposed against the offence 323/149 and 323 of IPC, shall be adjusted

in the above mentioned fine amount imposed by this Court. The order passed by the trial Court regarding disposal of the seized article is hereby

affirmed.

The appellants are on bail. Their bail bonds are cancelled. They are directed to surrender before the trial Court without any delay so that they may

be sent to jail for execution of remaining part of their jail sentence.

With the modification in the judgment of the trial Court to the above extent, this criminal appeal is partly allowed and disposed of.

Along with a copy of this judgment, the record of the trial Court be sent back immediately.