•c ^ ^ IN THE HIGH COUBT O? MADHYA P8ADESH AT JABA&gUK'/fe.P. Crlnlnal Appeal No.-^- L/l ^ of 1993 Appellants; %-- ^ ^^••s--""" nminal (1) Rajkumar aUas fiaj^le Bench (r son of Sferi Mobaa Siagh, aged aibout 30 yearst^'-"' ^' (2) 'Aaulu alias Analya Kanwago, son of Bisthan Charaa Kcuauago, aged aboat 33 years* / (3) Tulsi son of Shri Ragbwnath Jaiswal aged about 34 years. \.^' (4) Vlja? Singh aged aboiat 28 yrs* soa of Starl Sopal Singb. 'rC ''. (5) Baldu son of Shri Raialal» .' aged abbut 28 years. , (6) Sajeeli Kuiaac soa of Mohaa Siagh, aged about 19 years. Aj^aellants 1 IE& 6 atoove reslden-ts o£SaraaggaA Bistriet Raigarh, M.P, (7) Kaahaiyalal alias Manna» sraa of Budheshwar Singh' . aged about 25 years . residen-t of Ghuaaglpal, Raigarh,. H.P. ?s* Resp^ndents The S-tate of Madh?a Pradesh. AP'PEAL UNDER SEC.374 OF THE CODE OF CaiMIHAL PROCEBUBE 1973 CoavictlQB 395 IPC 4WIPC Senteace Two years' RI One ?ear*a SI HI6H COURT OF CHHATTISeARH AT BILASPUR Single Bench : Hon'ble .r. Justfce Pritinker &iwaker Criminol Awoe,a\ No. 242 of 1993 APPELLANTS Accused RESPON&ENT Rajkumar alios Raju & others. The State of Madhyo. Pradesh Shri Awadh Tripathi, counse! for the appellants. Shri Neeroj Mehta, Panel Lawyer for the State. CRIMINAL APPEAL UN&ER SECTION 374 (Z) OF THE COOE OF CRIMINAL PROCE&URE O R & E R (08.04.20105 Present appeo.1 arises out of the impugned judgment dated 04.02.1993 po.ssed by Sessions Judge, Raigorh, in Sessions Trial No. 161/1992 convicting the accused/appe'lants for the offences punishable under Sections 395 and 450 of the Indian Penat Code and sentencing them to undergo rigorous imprisonment for two years u/S 395 IPC, to undergo rigorous imprisonment for one year u/S 450 IPC. •k 2. Case of the prosecution in brief is that on 15.7.1992 one written report- (Ex.P-1) was,^ lodged by complainant Surendra Dewangain (PW-1) alteging in tt that on that doy at about 10.45 pm the accused/appeltants entered his house, have broken his television/get by throwing the same on the floor and abused kim by saying as to why you ors running Video Cassette Recorder (V.C.R.) ond showing the film. It is alleged thert- ofter threatening him, th.e accused persons have taken his V.C.R. Based on this written report, FIR (Ex.P-2) was registered by the poiice on the same day for offences punishabls under Sections 147, 448, 506-B ond 427 of Indian Pena! Code. After \\. 1 •^ 1 '£ "-~^sffi1' ^' -^^^ investigation, the poiice has filed the challon against the accused/appe.tiants for theoffences under Ssction 147, 457, 506-B and 427 of the Indion Pena! Code, However, while. froming the char9es, learned court beiow has framed the charges against the accused/appetiants for the offences punishable under Sections 395, 450 dnd 427 of the Indion Penal Code. 3. So a& t" hold to accused/appeliants gui'ty, prosecution has examjned a? many as 05 witnesses in support of its case. Statements of the accused/appellants were dso recorded under Seetion 313 of the Code of Criminal Procedure in which they denied the chorges levelled against them oind pleaded their innocence and fcilse implication in the case. That apart, witness nomely Vijay Shanker ©opal (DW-1) has also been examined by the defence in support of its case. 4. A.fter hearing the po.rt'ies the trio.1 Court has acquitted the accused/appetiants for the offence punishabie under Section 427 of the Indian Penal Code but hos convicted ond sentenced them for the offences under Sections 395 and 450 of the Indicm Penot Code. Hence this appeai. •V: 5. Heard counsel for the part'ies and perused the material available on record inctuding thejudgment impugned. \ 6. "C6unsel for th® appeiiants submits thct he is not pressing this oppeal ois'far a-s it relotes to conviction part of the impugned judgment and would confine his argument to the sentence part thereof only. According to him, incident is said to hme td<en place in the year 1992 i.e. about 18 years back and drt' thgt time the accused/appeilant No. 1 was running his N ^;;-J'",..^ ^s£^li'" Video library vyhereas the complainant was having ths business of providing cable facilities in th.e tocal area and as some films were exhibited by him through his cabte. connection, there was some dispute between him ond the appeilant No. 1. He submits th.ffl' on the date of incident some incident might hove taken place but there was no intention on the part of the accused/appeilants to commit any dacoity. He submits that the V.C.R. taken from the h.ouse of the complainont was immediately produced by the accused/appeilant No. 1 befors the concerned poiice station vide Ex.P-3 and this fact shows thot there was nb intention on the part of ths accused/appeilcmts to commit the offence of dacoity. He submits that csfter pronouncement of the impugned judgment, rela+ions betwesn the accused/appeilants wd the compiainant have become cordial and they have already settied the dispute amongst them. He aiso submits thort' the appeltonts haye no post criminal record and except the present cas®,no case was ever registered against them. He submits that th.e appiicotions have already filed unde^ Section 320(2) and 320(5) of the Code of Criminal Procedure for compoundin9 the offences and these applications are being duly supported by the affidavits of the accused/appe!tants and that of the complaincmt. Counse! for the appellants admits that the offences under Sections 395 &•• 45& of the Indian Penat Code are though not •• / compoundable but the effect of these applications can be •"•^ considered by this Court while punishing the accused/appellants. He aiso submits thort' as on date, atl the appeltants and the compiainant are in different business, no usefut purpose would be served in sending th©mto jail CBid it wouid be Jn the interest of justice if sentences imposed on :jaw ttfl them are reduced to the period al' furt'her submits thct appellants <xre complainont by poying o.dequate directed. }one bythem. H® willing to compensate the compensation as may be horid counsel for the stat-e supporl'-s the be shown to 7. On the other impugned Judgment the o.ppello/!ts. 8. Tnie, thact the offence under Section 395 and 450 are not compoundable and, therefore, the applications as fited by the appetSonts hwe no merits, however, in vjew of the ssttted position of law, effect of these applicoitions ccm be considered by this Court-. It is not disputed by the pcrties that both the accused/appeitants and the comptainant were having some business interest when the incident had occurred and it is also not disputed that the V.C.R. of the complainant taken by the accused/appeilant wcis immediately handed over to the concemed police Station by the accused/appellcmt No.l- On the basis of evidence availobte on record, technicatly the offences under Sections 395 A 450 of th®Indian Penal Code may be made out against the accused/appellonts but while convicting them, the surrouriding circumstonces, the intentjon and subsequent development can be considered by this Couri'. Accused/^dppellants are not the habitual criminal; the offence has been committed on spur of moment. Considering o.!t the facts:A circumstances of the case, the leniency can be shown to thieo.ppetlanTs while sentencing them. of above, the appeal is partly allowed. Conviction is maintained. ^ppeilants are 9. In view part of the reporf'ed to have remained in jai! for one day and, therefpre, in / 1 ^ view of the pecullar focts & circumstances of the case, their sentence is reduced to the period already undergone by thern. However, in !ieu thereof, fine of Rs. 35,000/- is imposed on the appellants ond out of this ainount Rs.30,000/- shall be given to the complainontSurendra Dewanagan (PW-1). If this amount of Rs. 35,0007- is not deposited before the court' below within a period of three months from the date of receipt of copy of the order, appellorits shall undergo the rigorous imprisonmentof six months. 10. Appeal thus parl'ly succeeds. Sd' Pritinker Biwa&er Jadge