Madhya Pradesh High Court
Lateef Mohd. vs The State Of M.P. on 22 October, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
NEUTRAL CITATION NO. 2024:MPHC-IND:31021
1 CRA-933-1999
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 22nd OF OCTOBER, 2024
CRIMINAL APPEAL No. 933 of 1999
LATEEF MOHD. AND OTHERS
Versus
THE STATE OF M.P.
Appearance:
Shri Vivek Singh - advocate for the appellant no.1 &2.
Shri Abhay Saraswat - advocate for the appellant no.3.
Shri H.S.Rathore - Govt. advocate for the respondent/State.
Reserved on: 26.09.2024
Delivered on: 22.10.2024
JUDGMENT
This criminal appeal is preferred under section 374 of Cr.P.C. by the
appellants being aggrieved by the judgment of conviction and sentence dated
30.06.1999, passed by learned Special Judge (SC/ST[PA]ACT), District-
Mandsaur in Special Criminal Case No.64/1997, whereby the appellants
have been convicted for the offence punishable under Section 307/34,
325/34 and 323/34 of IPC, 1860 sentenced to undergo 5 years, 2 years and
6 months R.I. with fine of Rs.500/-, Rs.500/- and Rs.300/- respectively and
usual default stipulations.
2. As per prosecution story, on 22.08.1993 at about 3.00 pm at village
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Khajuri Rand the complainant Devilal was returning to his house from the
well then Kishore informed that he has been assaulted, at that time appellant
no.1 Latif reached the spot. Complainant enquired about the incident to
Latif, then he started hurling abuses and on being pacified, he left the spot,
however, he returned back along with co-accused persons Subhan, Ghabba
and Vali Mohammad armed with Axe, Knife and wooden sticks. Ghabba
caught hold of complainant from back and appellant-Subhan assaulted him
with knife on his head. Appellant Latif assaulted Bhagwan by axe and
appellant-Subhan assaulted Bhagwan on his head. It is further alleged that
appellant-Subhan assaulted Sampathbai also. Allegation against Vali
Mohammed is that he threatened to kill the complainant party so also the
drive away them from the village. When the other villagers reached the place
of the incident, the accused persons flew away from the spot. Thereafter,
complainant along with his brother and nephew went to police station in a
tractor and registered complaint against the appellants. On the basis of
which FIR was lodged against the appellants.
3. The police after following the due procedure, reached the spot,
prepared the spot map; collected the blood stained and normal sand, blood
stained cloths; recorded the statements of the witnesses; arrested the accused
persons and on their instance seized the articles used in the crime. Injured
persons were sent for treatment and the seized articles were sent for forensic
lab for analysis. In medical examination injuries were found on the person of
Devilal, Bhagwan, Shivlal and Sampathbai and as per fracture report, a
fracture was deducted in the hand of Devilal. After due investigation,
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charge sheet was filed.
4. The prosecution on its behalf has examined as many as 12 witnesses
namely Prabhulal (PW-1), Devilal (PW-2), Bhagwan (PW-3), Sampathbai
(PW-4), Kishore (PW-5), Balaram (PW-6), Shivlal S/o Prabhulal (PW-7),
Megha (PW-8), Balakrishna (PW-9), Dr. S.K. Mishra (PW-10), Shivlal
S/o.Bownaji (P.W.-11), Prabhusingh (P.W.12), ASI R.P. Yadav (P.W.13),
C.R. Jatav Inspector, CID,(P.W.14), Dr. G.L. Jain (P.W.15) and R.
Udaynarayan (P.W-16). No. witness has been adduced in defence by the
appellants.
5. Learned trial Court, on appreciation of the evidence and argument
adduced by the parties, pronounced the impugned judgment on 30.06.1999
and finally concluded the case and convicted and sentenced the appellant for
commission of the said offence as mentioned in para -1 of this order.
9. Before this Court, both the parties have filed applications for
compounding the offences.
10. The said applications were sent for verification before the Principal
Registrar on different dates vide orders dated 08.12.2021 and 28.07.2022. In
compliance to the said orders, the compromise was verified and reports dated
15.12.2021 and 08/09/2022 have been submitted in which it is mentioned
that accused/appellants and the complainants have entered into compromise
with mutual consent. There is no dispute remaining between the
accused/appellants and the complainant.
11. Counsel for the appellants submits that so far as sentence is
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concerned, the appellants have already undergone jail sentence of
approximately more than three and half months and the incident had taken
place in the year 1993. Counsel submitted that appellant no.3 – Ghabba is a
government servant hence counsel prays that probation be granted under
Section 4 of the Probation of Offenders Act so that his service is not
adversely effected. 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. (1995(1) MPWN 238) . It is also submitted that compromise has
already been arrived at between the parties and therefore, while maintaining
the conviction, the jail sentence may be reduced to the period already
undergone by enhancing the fine amount on the basis of compromise.
12. Learned counsel for the respondent/state has opposed the prayer.
However, it is fairly admitted that the parties have compromised the matter
amicably.
13. Nevertheless, the counsel for the appellants has not impugned the
merits of conviction and confined his arguments on 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. In view of the whole evidence produced by the
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prosecution, conclusion of learned trial Court regarding conviction appears
to be on sound reasoning, it does not warrant any interference.
14. Now coming to the compromise petition with regard to offence
under Section 323/34 and 325/34 of IPC, actually when the injured persons
have filed compromise petition with regard to aforesaid offences, the same
has already been verified, and the offences are compounded with the leave of
this Court, so also as there is no public interest involved in the case, all the
three appellants are acquitted from the charges under Section 323/34, 325/34
of IPC on the basis of compromise, if any fine amount deposited with regard
to these offences, if would be returned accordingly.
15. Now, the Court is turning to the sentencing part of appellant no.1
&2 with regard to non-compoundable offence under Section 307 /34 of IPC
and considering the 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,Signature Not Verified
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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 guiding 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.”
15. On this point, the view of Hon’ble Apex Court in the case of
Unnikrishnan alias Unnikuttan versus State of Kerala reported in (2018) 15
SCC 343 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 71 1, this Court allowed the parties to
compound the offence even though the offence is a non-
compoundable depending on the facts and 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.”
16. Even this Court in Cr.A. No.268/2016 (Kanha @ Mahesh v/s
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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 reported as 2023 Lawsuit (MP) 392, Devendra Singh vs.
State of M.P. (2023 Lawsuit (MP)781) and Shravan vs. The State of M.P.
reported as 2024 Lawsuit (MP) 240 has taken a similar view.
17. 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 the accused for molding the sentence which
always has to be examined in the facts and circumstances of
the case on hand.”
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18. As the offence under Section 307/34 of IPC is not 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 in view of the aforesaid principle laid down by Hon’ble
Apex Court and this Court, taking into consideration that the incident has
taken place in the year 1993, the appellants are facing the trial for more than
30 years and further appellants have already undergone jail sentence of more
than 3 and 1/2 months and no fruitful purpose would be served in keeping
the appellants in jail even after the compromise entered into between the
parties, therefore, to meet the ends of justice, the sentence of imprisonment
awarded against the appellant No.1- Latif & appellant No.2-Shubhan, may
be reduced to the period already undergone hence this Court is of the view
that while maintaining conviction under Section 307/34 of IPC, the sentence
under this offence is reduced to the period already undergone by enhancing
the fine amount from Rs.500 to Rs.10,000/-. The appellants 1 &2 are on
bail, their bail bonds and surety shall be discharged after their depositing the
aforesaid fine amount imposed upon them. Failing to deposit the fine
amount or compensation amount they shall suffer 03 months S.I. , if already
deposited, shall be adjusted.
20. With regard to the prayer of appellant no.3 – Ghabba learned
counsel for the appellant submitted that since appellant no.3-Ghabba is a
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government servant, he should be given the benefit of Probation of
Offenders Act,1958 (hereinafter referred to as ‘The Act, 1958’) in this
regard, 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
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conditions as it deems necessary for the due supervision
of the offender.
(4)The Court making a supervision order under sub-
section (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 respect to residence,
abstention from intoxicants or any other 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 sub-
section (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.
XXXX
Section 12 Removal of disqualification attaching to
conviction
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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.”
21. 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 of
Haryana AIR 1985 SC 1278 which reads as under:-
“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 aSignature Not Verified
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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. ”
22. On this point, Narottam vs. State of M.P. , reported as 1995 (1)
MPWN 238 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 Rajbeer 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.”
23. In view of the aforesaid principles laid down by Hon’ble Apex
Court and by this Court since the appellant No.3 is a Government servant,
and he has been convicted for offence under Section 307/34 of IPC, 1860
and now after compromise, likewise, other co-appellants is required to be
punished with only undergone period along with fine of Rs.10,000/-, it
would be appropriate that this appellant no.-3 Ghabba should be given the
benefit of Section 5 & 12 of The Act, 1958, as he is in government service.
It is also worth to be kept in mind that the offence proved against the
appellant is a serious offence but when the parties have amicably settled their
dispute and due to their settlement, in view of the law laid down by Hon’ble
Apex Court, his sentence is reduced to the period already undergone by him
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and therefore, the nature of offence would be mitigated.
24. In addition to that, it is poignant to point out that when on the basis
of compromise petition, these Courts, relying upon Gian Singh (Supra),
Narinder Singh and Ors (Supra), Unnikrishnan alias Unnikuttan (Supra),
Bhagwan Narayan Gaikwad (Supra), can use its extraordinary jurisdiction
for either quashing the criminal proceedings or reducing the sentence, they
will be well within jurisdiction to give the benefit of The Act, 1958 in
appropriate cases, when parties have settled their matter amicably and filed
compromise petition. In the case at hand, where no evidence has been filed
to indicate any criminal antecedent against appellant no.3-Ghabba, he is
entitled to get the benefit of Probation of Offenders Act, 1958 under the
aforesaid provisions.
25. In the upshot of the aforesaid analysis of law and deliberation in
entirety, it would be condign to release the appellant No.3-Ghabba under the
provisions of Section 5 & 12 of ‘The Act, 1958’ by imposing compensation
of Rs.10000/- in the State Exchequer. In the result thereof, it is directed that
conviction of appellant no.3-Ghabba will not affect his profession and future
career in any manner.
26. The judgment of learned trial Court regarding disposal of the
seized property stands affirmed.
27. A copy of this order be sent to the concerned trial Court for
necessary compliance.
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28. Pending application, if any shall be closed.
29. With the aforesaid, the present appeal stands disposed off.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
sumathi
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