Madhya Pradesh High Court
Jayesh vs The State Of Madhya Pradesh on 6 September, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2024:MPHC-IND:25934
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 5279 of 2024
JAYESH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Bharat Yadav - advocate for the appellant.
Ms. Neelu Khetra appearing on behalf of Advocate General.
Ms. Aditi Paliwal appeared for respondent.
Reserved On:28.08.2024
Delivered On: 06.09.2024
JUDGEMENT
1. This criminal appeal is preferred under section 374 of Cr.P.C. by the
appellants being aggrieved by the judgment dated 13.04.2024, passed by learned
Sessions Judge, District Jhabua (MP), in Sessions Trial No.31/2023, whereby the
appellants have been convicted for the offence punishable under Sections 326 (two
counts) and 323 of IPC and sentenced to undergo 05 years and one year R.I. each,
with total fine of Rs.17000/- each and default stipulation.
2. Before this Court, both the parties have filed an application for
compounding the offences. Since, there is cross-case both the parties have
compromise the matter against each other.
3. The said application was sent for verification before the Principal
Registrar vide order dated 31.05.2024. In compliance to the said order, the
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appellants appeared through VC from jail and complainant also appeared before
the Principal Registrar. The compromise was verified and a report dated
03.06.2024 has been submitted that accused/appellants and the complainant have
entered into compromise with mutual consent. There is no dispute remaining
between the accused/appellant and the complainant. But as per the aforesaid
report, the offence under Sections 326 of IPC is non-compoundable.
4.Counsel for the appellant submits that so far as sentence is concerned, the
appellant no.1 and appellant no.2 have already undergone jail sentence of more
than two months and 15 days months (Jayesh) and approximately three months
and 15 days (Umesh). Compromise has already been done between the parties and
therefore, while maintaining the conviction, the jail sentence of appellant no.1
Jayesh may be reduced to the period already undergone by enhancing the fine
amount on the basis of compromise.
5. In the course of arguments learned counsel for the appellants has also
entreated that appellant no.2 (Umesh) is a government servant, hence in view
of the offence and compromise between the parties, he should be given the
benefit of Section 4, 5 & 12 of the Probation of Offenders Act, 1958 so that
his career of government service would not be affected. Counsel placed
reliance upon the judgment passed by Hon’ble Apex Court in the case of
Rajbir vs. State of Haryana (AIR 1985 SC 1278) so also the order passed by
this Court in the case of Narottam vs. State of M.P. reported as 1995(1)
MPWN 238. .
6. Learned counsel for the respondent/state has opposed the prayer. However,
counsel for the objector has not objected and fairly admitted that they have
compromised the case with the appellants.
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7. Nevertheless, the appellants have not impugned the merits of conviction
and confined their arguments as to sentencing of the appellants on the basis of
compromise application, but still this appellate Court is of the view to examine the
sanctity of conviction. On this aspect, I have gone through the order of the trial
Court. The prosecution case is not only fortified by the eye-witnesses including
the injured persons, but also well supported by medical testimony and
documentary evidence adduced before the trial Court. However, looking to the
fact that both the parties have compromised the case with leave of this Court and
the same has already been verified, both the appellants are acquitted from the
charges under Section 323/34 of IPC on the basis of compromise.
8. Now, the Court is turning to the sentencing part of non-compoundable
offence under Section 326 of IPC and effect of compromise placed by the
complainant/injured and accused persons. In the case of Narinder Singh and Ors
Vs. State of Punjab And Anr, 2014 (6) SCC 466 relying on the various judgments,
the Apex Court permitted the compounding in a non-compoundable case and
quashed the criminal proceedings. The Hon’ble Apex Court in para no.21 has
observed as under:-
“21. However, we have some other cases decided by this
Court commenting upon the nature of offence under Section
307 of IPC. In Dimpey Gujral case (supra) , FIR was lodged
under sections 147,148,149,323,307,552 and 506 of the IPC.
The matter was investigated and final report was presented to
the Court under Section 173 of the Cr.P.C. The trial court had
even framed the charges. At that stage, settlement was
arrived at between parties. The court accepted the settlement
and quashed the proceedings, relying upon the earlier
judgment of this Court in Gian Singh vs. State of Punjab &
Anr. 2012 AIR SCW 5333 wherein the court had observed
that inherent powers under section 482 of the Code are of
wide plentitude with no statutory limitation and the guidingSignature Not Verified
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factors are: (1) to secure the needs of justice, or (2) to
prevent abuse of process of the court. While doing so,
commenting upon the offences stated in the FIR, the court
observed:
“Since the offences involved in this case are of a
personal nature and are not offences against the society,
we had enquired with learned counsel appearing for the
parties whether there is any possibility of a settlement.
We are happy to note that due to efforts made by
learned counsel, parties have seen reason and have
entered into a compromise.” This Court, thus, treated
such offences including one under section 307, IPC
were of a personal nature and not offences against the
society.”
9. Here, it is also poignant that this compromise has been filed at the stage
of appeal before this Court. On this aspect, the law laid down by Hon’ble Apex
Court in the case of Ishwar Singh vs. State of Madhya Pradesh [AIR 2009 SC 675]
is worth to be quoted here as under:
“15. In our considered opinion, it would not be appropriate to
order compounding of an offence not compoundable under the code
ignoring and keeping aside statutory provisions. In our judgment,
however, limited submission of the learned counsel for the appellant
deserves consideration that while imposing substantive sentence, the
factum of compromise between the parties is indeed a relevant
circumstances which, the Court may keep in mind.”
10. On this point, the view of Hon’ble Apex Court in the Unnikrishnan alias
Unnikuttan versus State of Kerala reported in AIR 2017 Supreme Court 1745 is
also worth referring in the context of this case as under:-
“10. In series of decisions i.e. Bharath Singh vs. State of M.P. and
Ors., 1990 (Supp) SCC 62, Ramlal vs. State of J & K, (1999) 2 SCC
213, Puttaswamy vs. State of Karnataka and Anr, (2009) 1 SCC 711, this
Court allowed the parties to compound the offence even though the
offence is a non-compoundable depending on the facts andSignature Not Verified
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circumstances of each case. In some cases this Court while imposing the
fine amount reduced the sentence to the period already undergone.”
11. What emerges from the above is that even if an offence is not
compoundable within the scope of Section 320 of Code of Criminal
Procedure the Court may, in view of the compromise arrive at between
the parties, reduce the sentence imposed while maintaining the
conviction.”
11. Even this Court in Cr.A. No.268/2016 (Kanha @ Mahesh v/s The
State of Madhya Pradesh) decided on 26.08.2017 as well as in Cr.A. No.561/2010
(Radhakrishnan & 3 Others v/s The State of Madhya Pradesh) decided on
18.04.2017 and in CRA No.604/2000 (Aaram singh vs. The State of Madhya
Pradesh) decided on 08.08.2019, Sohan Jangu & others vs. State of Madhya
Pradesh passed in CRA No.550/2023 on 11.07.2023, has taken a similar view.
12. On this point, this Court is also inclined to quote the excerpt of the
judgment rendered by Hon’ble Apex Court in the case of Bhagwan Narayan
Gaikwad vs. State of Maharashtra; [2021 (4) Crimes 42 (SC) which is as under:-
“28. Giving punishment to the wrongdoer is the heart of the
criminal delivery system, but we do not find any legislative or judicially
laid down guidelines to assess the trial Court in meeting out the just
punishment to the accused facing trial before it after he is held guilty of
the charges. Nonetheless, if one goes through the decisions of this Court,
it would appear that this Court takes into account a combination of
different factors while exercising discretion in sentencing, that is
proportionality, deterrence, rehabilitation, etc.
29. The compromise if entered at the later stage of the incident or
even after conviction can indeed be one of the factor in interfering the
sentence awarded to commensurate with the nature of offence being
committed to avoid bitterness in the families of the accused and the
victim and it will always be better to restore their relation, if possible, but
the compromise cannot be taken to be a solitary basis until the other
aggravating and mitigating factors also support and are favourable to theSignature Not Verified
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accused for molding the sentence which always has to be examined in
the facts and circumstances of the case on hand.”
13. As the offence under Sections 326 of the Indian Penal Code is non-
compoundable under Section 320 of the Code of Criminal Procedure, 1973, it is
not possible to pass the order of acquittal on the basis of compromise but, it is by
now well settled that such a compromise can be taken into account for reduction of
sentence. The appellants and the complainant are living in the same society, they
are residing happily since last so many years, they want to live with peace, and
therefore, to meet the ends of justice, the sentence of imprisonment awarded
against the appellant No.1 may be reduced to the period already undergone.
14. In view of the aforesaid principles laid down by Hon’ble Apex Court and
by this Court taking into consideration that the incident had taken place in the year
2022 and further the appellant no.1 has already undergone jail sentence of two
months and 15 days months (Jayesh) and no fruitful purpose would be served in
keeping the appellant in jail even after the compromise between the parties, this
Court is of the view that while maintaining the conviction under sections 326 of
IPC, the jail sentence of appellant no.1 is reduced to the period already undergone
on the basis of compromise by affirming the fine amount of Rs.16000/-.
15. Now coming to the prayer of appellant no.2 Umesh, learned counsel
for the appellant submitted that since appellant No.2 is a government servant,
he should be given the benefit of Probation of Offenders Act,1958
(hereinafter referred to as ‘The Act, 1958’) in this regard. On this aspect it is
submitted that since no evidence has been filed to indicate any criminal
antecedent against appellant no.2, he is entitled to get the benefit of Section 4,
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15 of The Act, 1958. It is worth to quote hereunder Section 4, 5 and 12 of
The Act, 1958:
Section 4:Power of Court to release certain offenders on
probation of good conduct:
(1) When any person is found guilty of having committed an
offence not punishable with death or imprisonment for life and
the Court by which the person is found guilty is of opinion that,
having regard to the circumstances of the case including the
nature of the offence and the character of the offender, it is
expedient to release him on probation of good conduct, then,
notwithstanding anything contained in any other law for the time
being in force, the Court may, instead of sentencing him at once
to any punishment direct that he be released on his entering into
a bond, with or without sureties, to appear and receive sentence
when called upon during such period not exceeding three years,
as the Court may direct, and in the meantime to keep the peace
and be of good behaviour:
Provided that the Court shall not direct such release of an
offender unless it is satisfied that the offender or his surety, if
any, has a fixed place of abode or regular occupation in the place
over which the Court exercises jurisdiction or in which the
offender is likely to live during the period for which he enters
into the bond.
(2)Before making any order under sub-section (1), the Court
shall take into consideration the report, if any, of the probation
officer concerned in relation to the case.
(3)When an order under sub-section (1) is made, the Court may,
if it is of opinion that in the interests of the offender and of the
public it is expedient so to do, in addition pass a supervision
order directing that the offender shall remain under the
supervision of a probation officer named in the order during
such period, not being less than one year, as may be specified
therein, and may in such supervision order impose such
conditions as it deems necessary for the due supervision of the
offender.
(4)The Court making a supervision order under subsection (3)
shall require the offender, before he is released, to enter into a
bond, with or without sureties, to observe the conditions
specified in such order and such additional conditions with
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matter as the Court may, having regard to the particular
circumstances, consider fit to impose for preventing a repetition
of the same offence or a commission of other offences by the
offender.
(5)The Court making a supervision order under subsection (3)
shall explain to the offender the terms and conditions of the
order and shall forthwith furnish one copy of the supervision
order to each of the offenders, the sureties, if any, and the
probation officer concerned.”
Section 5. Power of Court to require released offenders to pay
compensation and costs
(1) The Court directing the release of an offender under section 3
or section 4, may, if it thinks fit, make at the same time a further
order directing him to pay
(a) such compensation as the Court thinks reasonable for loss or
injury caused to any person by the commission of the offence;
and
(b) such costs of the proceedings as the Court thinks reasonable.
(2) The amount ordered to be paid under sub- section (1) may be
recovered as a fine in accordance with the provisions of sections
386 and 387 of the Code.
(3) A Civil Court trying any suit, arising out of the same matter
for which the offender is prosecuted, shall take into account any
amount paid or recovered as compensation under sub-section (1)
in awarding damages.
Section 12 Removal of disqualification attaching to Conviction
Notwithstanding anything contained in any other law, a person
found guilty of an offence and dealt with under the provisions of
section 3 or section 4 shall not suffer disqualification, if any,
attaching to a conviction of an offence under such law: Provided
that nothing in this section shall apply to a person who, after his
release under section 4, is subsequently sentenced for the
original offence.”
16. On this point, this Court is also inclined to quote the excerpt of the
judgment rendered by Hon’ble Apex Court in the case of Rajbir vs. State
(Supra) which reads as under:-
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“4. From the judgment of the High Court it appears that though
the sentence imposed for the offence Under Section 323 of the
Code was six months, the appellant and the co-accused had
already suffered over one year’s imprisonment. Ordinarily, in a
situation as here, there would be no need to interfere. Learned
counsel for the appellant has, however, pressed the appeal as
the appellant is in Government service and if the conviction and
sentence are maintained, he would lose his service. Both the
parties to the assault were close relations. There is no material
on the record to indicate that the appellant had any previous
conviction. In the absence of such evidence, we treat the
appellant as a first offender. He is entitled to be admitted to the
benefits of probation Under Section 3 of the Probation of
Offenders Act, 1958, taking into consideration the
circumstances of the case, the nature of the offence and the
character of the appellant. While maintaining his conviction we
direct that he shall be released on probation of good conduct
Under Section 4 of the Act. The Chief Judicial Magistrate,
Bhiwani, before whom the appellant is directed to appear
within four weeks from today shall release him after due
admonition. We do not consider it necessary to direct him to
enter into a bond in the facts of the case.
5. We are of the view that in the peculiar facts of the case, the
conviction should not affect his service. ”
17. Similarly, in the case of Narottam vs. State (Supra) the co-ordinate
Bench of this Court while granting the benefit of Section 4 of Probation of
Offenders Act to the applicant has held as under:
“Reliance was placed on the case of Rajbir vs. State of Haryana
reported in AIR 1985 SC 1278. In that case it was held that on
facts when the accused was in Government service, the
probation could be granted u/s.4 of the Probation of Offenders
Act so that his service is not adversely effected.
The facts of this case are similar. Both the petitioners are in
Government service. There is no criminal history against
them. Therefore, they are entitled to be released on probation
instead of being sentenced to any imprisonment as fine.”
18. In view of the aforesaid principles laid down by Hon’ble Apex
Court and by this Court since the appellant No.2 is a Government servant, and
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he has been convicted for offence under Sections 326 of IPC 1860, since
appellant no.2 is also required to be punished with only with compensation
amount of Rs.16000./-, under Section 5 of The Act, 1958. It would be
appropriate that this appellant no.2 should be given the benefit of Section 5 &
12 of The Act, 1958, as he is in government service. Therefore, in view of the
law laid down by Hon’ble Apex Court, his sentence is reduced only to the
extent of imposing only compensation amount under Section 5 of The Act,
1958. Looking to the fact that all another appellant no.1 had been imposed
with a total amount of Rs.16000/- it will be apposite that appellant no.2
should also be liable for paying the compensation amount of Rs.16000/- for
the offence under Section 326 of IPC.
19. In the case at hand, where no evidence has been filed to indicate any
criminal antecedent against appellant no.2 Umesh, he is entitled to get the
benefit of Probation of Offenders Act, 1958 under the aforesaid provisions.
20. In the upshot of the aforesaid analysis of law and deliberation in
entirety, it would be condign to release the appellant No.2 Umesh under the
provisions of Section 5 & 12 of ‘The Act, 1958’ by imposing compensation of
Rs.16000/- in the State Exchequer. In the result thereof, it is directed that
conviction of appellant no.2 Umesh will not affect his profession and future
career in any manner.
21. In case, if the appellants no.1 fail to deposit the aforesaid fine amount
within 15 days from today, they shall suffer 15 days S.I., if not already deposited.
The compensation amount shall also be deposited by appellant no.2 within 15
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from the date of judgement.
22. The amount of fine if already deposited, shall be adjusted.
23. The appellants are already on bail. Their bail bonds would be canceled
after depositing the fine amount and compensation with the State Exchequer as
well.
24. The judgment of learned trial Court regarding seized property stands
confirmed.
25. A copy of this order be sent to the trial Court concerned for necessary
compliance.
Pending application, if any shall be closed.
With the aforesaid, the present appeal stands disposed off.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
AMIT
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