HIGH COURT OF MADHYA PRADESH 1 CRA No.5354/19 Criminal Appeal No.5354/2019 ([ENTITY] and others Vs. State of M.P.) Indore, Dated : 20.8.2019 Shri [ENTITY], learned counsel for the appellants. Shri [ENTITY], learned counsel for the respondent/Stte.
Shri [ENTITY], learned counsel for the complainant. Heard finally.
(JUDGMENT) 1/ By this appeal under [SECTION] of the [ACT], the appellants have challenged the judgment dated 4.6.2019 passed by the 2nd Addl. Sessions Judge, Sonkatch, District Dewas convicting the appellants for offence under [SECTION] of [ACT] and sentencing them to 10 years R.I. with fine of Rs.1,000/- and default imprisonment of 6 months each.
2/ The complainant and appellants are near relatives. The appellant No.1 [ENTITY] and appellant No.3 [ENTITY] are brother-in-law and appellant No.2 [ENTITY] is father-in-law of the complainant.
3/ The prosecution story is that on 19.4.2017 at 23.30 P.M. wife of the complainant had called the appellants to their house because some dispute was going on between HIGH COURT OF MADHYA PRADESH the complainant and his wife. The appellants thereafter had caused one injury on the head of the complainant with a wooden stick and had also abused him. The neighbourers namely [ENTITY], [ENTITY], [ENTITY] had intervened. It was alleged that on account of the dispute of the complainant with his wife, the appellants had caused injury by means of stick to the complainant. The complainant was taken to the hospital in Sonkatch and from the hospital itself the [ENTITY] (Ex.P/2) was lodged. The Pre-MLC of the complainant vide Ex.P/6 was done and the offence under [SECTION] and [SECTION] of [ACT] was registered against the appellants vide FIR Ex.P/5. The investigation took place and the spot map Ex.P/17 was prepared , seizures were made, the appellants were arrested and the Challan was filed. The appellants had abjured the guilt, hence trial took place.
4/ The trial court has acquitted the appellants for offence under [SECTION] of [ACT] and has convicted them for offence under [SECTION] [ACT] and sentenced them in the manner indicated above.
5/ Learned counsel for the appellants submits that since it was a family dispute, therefore, the matter was compromised between the parties and the complainant had HIGH COURT OF MADHYA PRADESH also recorded his compromise statement before the trial Court and that the appellants have already remained in custody for sufficient period, therefore, the appellants' sentence be reduced to the period already undergone by them.
6/ As against this, learned counsel for the State has supported the judgment under challenge.
7/ Having heard the learned counsel for the parties and on perusal of the record, it is noticed that Dr. [ENTITY] (PW-4) who had medically examined the complainant had found one single injury on the parietal region of the head caused by hard and blunt object, but in the x-ray report Ex.P/6 no fracture was found. Apart from this, no other injury was found on the complainant. The complainant (PW-2) [ENTITY] has given the details of the manner the incident was caused. PW-1 [ENTITY] has not been found to be the eyewitness of the incident. There is no other person who had witnessed the incident. On the basis of the statement of injured complainant, PW-5 [ENTITY] who had recorded the [ENTITY] (Ex.P/2) and [ENTITY] (PW-7) the investigating officer as also the seizure of the wooden sticks from the appellants and blood stained clothes of the complainant and the FSL report in this regard, HIGH COURT OF MADHYA PRADESH the offence under [SECTION] [ACT] has been found proved against the appellants. The aforesaid evidence establishes the commission of offence under [SECTION] of the [ACT] by the appellants. Even otherwise the finding in this regard has not been challenged.
8/ So far as the issue of sentence is concerned, the record reflects that the parties are near relatives as the appellants are brother-in-law and father-in-law of the complainant and the dispute had taken place on account of the alleged illtreatment by the complainant to his wife. Before the trial court itself the matter was compromised between the parties and the compromise statement of the complainant was recorded on 5.4.2019, wherein the complainant had stated that he did not want any action against the appellants and this fact has also been recorded by the trial court in Para-39 of the judgment.
9/ Supreme court in the matter of [PRECEDENT] in a similar case where the offence under [SECTION] of [ACT] was committed and parties had compromised the matter while noting the fact that though the offence is not compoundable but sentence can be reduced in view of the compromise, has held as under:
HIGH COURT OF MADHYA PRADESH
13. Now, it cannot be gainsaid that an offence punishable under [SECTION], [ACT] is not a compoundable offence. [SECTION] of the [ACT] expressly states that no offence shall be compounded if it is not compoundable under the Code. At the same time, however, while dealing with such matters, this Court may take into account a relevant and important consideration about compromise between the parties for the purpose of reduction of sentence.
14. In [PRECEDENT], [PRECEDENT] and [PRECEDENT], this Court, while taking into account the fact of compromise between the parties, reduced sentence imposed on the appellant-accused to already undergone, though the offences were not compoundable. But it was also stated that in [PRECEDENT], such offence was ordered to be compounded.
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 circumstance which, the Court may keep in mind.
16. In the instant case, the incident took place before more than fifteen years; the parties are residing in one and the same village and they are also relatives. The appellant was about 20 years of age at the time of commission of crime. It was his first offence. After conviction, the petitioner was taken into custody. During the pendency of appeal before the High Court, he was enlarged on bail but, after the decision of the High Court, he again surrendered and is in jail at present. Though he had applied for bail, the prayer was not granted and he is not released on bail. Considering the totality of facts and circumstances, in our opinion, ends of justice would be met if the sentence of imprisonment awarded to the appellant (Accused No.1) is reduced to the period already undergone.
HIGH COURT OF MADHYA PRADESH
17. For the foregoing reasons, the appeal deserves to be partly allowed and accordingly allowed by maintaining the conviction recorded by the trial court and confirmed by the Appellate Court but by reducing the sentence already undergone by the appellant. The sentence of payment of fine is not disturbed. If the appellant has not paid the amount of fine, he will pay such amount within four weeks from today.
10/ Similarly in the matter of [PRECEDENT] where the conviction was under [SECTION] and [SECTION] of [ACT] it has been held that:
"16. However, considering the fact that the parties have settled their dispute outside the court, the fact that 10 years have elapsed from the date of the incident, and the further fact that the appellants have already undergone several months' imprisonment, ends of justice would be met if the sentence of imprisonment is reduced to the period already undergone besides imposing a fine of Rs.5000/- on each of the accused under [SECTION] [ACT]. In default of payment of fine, the appellants concerned shall undergo imprisonment for a further period of six months. We also refrain from imposing any separate sentence on the other counts of offences. Out of the fine amount, if realised, a sum of Rs. 4000/- also be paid to each of the injured as compensation."
11/ In the matter of [PRECEDENT] where the offence was under [SECTION] read with [SECTION] of [ACT] considering the similar issue the Hon'ble Supreme court has held that :
"10. The first decision on this point was HIGH COURT OF MADHYA PRADESH rendered by this Court in [ENTITY] and others vs. State of Uttar Prades, wherein the trial court had convicted the accused under [SECTION] [ACT] which is a non- compoundable offence and had sentenced the accused to four years R.I. The High Court took into consideration the compromise between the appellant-accused and the injured and reduced the sentence to two years R.I. This Court, after observing that the fact of compromise can be taken into account in determining the quantum of sentence, reduced the sentence to the period already undergone which was little more than four months and further imposed a fine of Rs.1500/- on each of the appellants. [PRECEDENT] is a decision of a Bench of three learned Judges. It was observed that in view of the legislative mandate contained in [SECTION] [ACT] an offence can be compounded only in accordance with the provisions of the said section. The Court followed the view taken in the case of [ENTITY] and having regard to the fact that the parties had compromised and a period of ten years had elapsed from the date of the incident reduced the sentence of five years R.I. imposed under [SECTION] and [SECTION] [ACT] to the period of sentence already undergone which was three months and also imposed fine of Rs.5,000/-.
11. There are several other decisions of this Court wherein factor of compromise has been taken into consideration and the sentence has been reduced mostly to the period already undergone and they are [PRECEDENT], [PRECEDENT] and [PRECEDENT].
12. Following the view taken in the above noted cases we are of the opinion that the complainant and the principal accused having already married it will be in the interest of justice if the sentence is reduced to the period already undergone. The appeal is accordingly partly allowed. The conviction of the appellants under [SECTION] [ACT] is maintained but the sentence is reduced to the period already undergone which appears to be about ten months. The fine imposed upon the appellants is also set aside. The appellants are on bail. Their sureties and bail bonds HIGH COURT OF MADHYA PRADESH are discharged."
12/ The present case also stands on the same footing. Undisputedly the matter has already been compromised between the parties who are near relatives and the dispute no longer exists. The appellants had remained in custody for a period of about 1 and half months during trial and they are in custody since the date of judgment of the trial Court and have completed about 4 months in custody.
13/ Having regard to the aforesaid, the appeal is partly allowed by maintaining the conviction but reducing the sentence to the period already undergone by them. The appellants be now released from custody forthwith.
C.C. as per rules.
([ENTITY]) Judge trilok/-