[2008] 14 S.C.R. 574 \

' A

ISHWAR SINGH ~

II.

STATE OF MADHYA PRADESH (Criminal Appeal No. 1626 of 2008)

OCTOBER 17, 2008

[C.K. THAKKER AND D. K. JAIN, JJJ

Penal Code, 1860: ).--_,

s.307 - Conviction by trial court affirmed by High Court

- During pendency of appeal before Supreme Court compromise between accused and victim - Joint prayer by them that sentence be reduced to period already undergone - HELD: Offence. uls 307 is not compoundable - However, court may take into account the factum of compromise in reducing the 'D sentence - Keeping in view the facts of compromise between the parties, the age of accused at the time of offence and other factors, sentence reduced to the period already undergone - Code of Criminal Procedure, 1973 - s. 320 - Sentencing - Compromise between parties.

E The appellant-accused along with three others was prosecuted for commission of offence punishable u/s 307 r/w s.34 IPC on the allegation that the accused persons attacked the complainant-PW-4. The trial court held the

appellant guilty and convicted him u/s 307 IPC and -sentenced him to undergo rigorous imprisonment for 3 years. \ The other three were given benefit of doubt. The High l-..

Court declined to interfere.

In the instant appeal filed by the accused, on oral

G prayer made on his behalf, complainant-victim was joined as party respondent no. 2. During the pendency of the appeal a compromise.was stated to have been arrived at between the accused and the complainant-victim. Therey fore, it was jointly prayed on their behalf that the appel-

H 574

ISHWAR SINGH v. STATE OF MADHYA 575

PRADESH

!ant-accused be released treating the sentence already A -~-l undergone by him as sufficient.

Partly allowing the appeal, the Court

HELD: 1.1 An offence punishable under Section 307, IPC is not a compoundable offence. Section 320 of the B Code of Criminal Procedure, 1973 expressly states that no offence shall be compounded if it is not compound-

~ -i able under the Code. At the same time, however, while dealing with such matters, this Court may take into ac-

-1" count a relevant and important consideration about comc promise between the parties for the purpose of reduction of sentence. [para 13) [578-F-G]

Jetha Ram v. State of Rajasthan (2006) 9 SCC 255; Murugesan & Ors. V. Ganapathy Velar (2001) 10 sec 504 and Jshwarlal v. State of MP JT 1988 (3) SC 366 (1); and D Mahesh Chand v. State of Rajasthan AIR 1988 SC 2111 - referred to.

1.2 In the instant case, the incident to.ok place more than fifteen years back; the parties are relatives, residing in one E . and the same village. The appellant was about 20 years of age at the time of commission of crime. It was his first offence. Considering the totality of the facts and circumstances, ends of justice would be met if the sentence of imprisonment awarded to the appellant-accused is reduced F to the period already undergone. [para 16-17) (579-D-E]

... f

CASE LAW REFERENCE

(2006) 9 sec 255 referred to para 14

(2001) 1 o sec 504 referred to para 14 G

JT 1988 (3) SC 366 (1) referred to para 14

AIR 1988 SC 2111 referred to para 14

'~,

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1626 of 2008 H

A From the final Judgment and Order dated 11.9.2007 of r~- . the High Court of Madhya Pradesh, Bench at Indore in Criminal

Appeal No. 817 of 1994

Niraj Sharma for the Appellant.

B Dr. N.M. Ghatate, Anil Pandey, C.D. Singh, Sunny Chowdhary, Vairagya Vardhan Dubey, Aditya Singh and Ambhoj Kumar Sinha for the Respondent. r- The Judgment of the Court was delivered by c C.K. THAKKER, J. 1. Leave granted.

2. The present appeal is directed against the judgment and order of conviction and sentence recorded by the First Additional Sessions Judge, Ujjain, Madhya Pradesh on Decem-:- ber 2, 1994 in Sessions Trial No.258 of 1993 and .confirmed by D the High Court of Madhya Pradesh (Indore Bench) on September 11, 2007 in Criminal Appeal No.817 of 1994.

3. The case of the prosecution. was that on March 3, 1993 t

between 7.00 and 8.00 a.m., P-4 Devi Singh was attacked by

E four persons, lshwar Singh, Laxman Sin_gh, Dule Singh and Ganpat Singh, accused Nos.1 to 4 respectively. All the accused were, therefore, charged for commission of offences punishable under Section 307 read with Section 34, Indian Penal Code, 1860 (IPC). After usual investigation, the matter was com-

F mitted to the Court of Session in view of charge under Section 307, IPC which was exclusively triable by a Court of Session.

~ ~

4. The learned Judge, vide his Judgment and Order dated December 2, 1994, held that the prosecution was successful in partly establishing the case: On the basis of evidence of pros-

G ecution witnesses, the trial Court held that it would be appropriate to give benefit of doubt to accused Nos.2 to 4 and accordingly, the trial Court acquitted three accused. Regarding ac-

~-" cused No.1 lshwar Singh (appellantherein), the Court ruled that it was proved 'beyond reasonable doubt' tht he had attacked

H victim Devi Singh and had administered knife blows on the per-

-~ son of the injured. Accordingly, the Court convicted appellant- A accused No.1 for an offence punishable under Section 307,

IPC ..

5. Regarding quantum of sentence, the Court observed that at the time of incident, lshwar Singh was aged about 20 8 years and it was his first offence. Considering those factors,

' 1 the trial Court ordered him to suffer rigorous imprisonment for

/ three years and to pay a fine of Rs.1,000/-, in default, to un-

-•' dergo imprisonment for six months more.

6. The order of conviction and sentence was challenged c by accused No.1-appellant herein by filing Criminal Appeal No.817 of 1994. The High Court of Madhya Pradesh (Indore Bench) again considered the evidence on record and the findings recorded by the trial Court and held that no error either of fact or of law had been committed by the trial Court and the D order of conviction recorded by the High Court was in conso-

'+ nance with law. Regarding sentence also, the High Court held that it could not be said that the sentence awarded on the appellant was excessive or harsh. Accordingly, the appeal .was dismissed. The appellant who was on bail was directed to sur- E render and to. undergo the remainder part of the sentence.

7. The said order is challenged in the present appeaL On January 15j 2008, notice was issued by this Court. On August 13, 2008, at the oral prayer of learned counsel for the appellant, injured Devi Singh was ordered to be joined as party respon- F ... ; dent No.2 and notice was issued to him by making it returnable within two weeks. The notice was served and the injured appe.ared through a lawyer.

8. We have heard learned counsel for the parties.

9. The learned counsel for the appellant stated that during G

"'J the pendency of the proceedings before this Court, mutual compromise has been arrived between the parties, i.e. accusedlshwar Singh on the one hand and the complainant-victim Devi Singh on the other hand.

10. An affidavit is also filed by the appellant-accused No.1 r~-

in this Court. In paragraph 3, itis sated;

"The accused petitioner and the complainant Devi Singh are members of the same community and reside

B permanently in the same village and are also related to each other. Now the relations between the accused and the complainant and their families are cordial and there is r- no surviving dispute of any kind between the parties. Father of the accused, Shankarlalji is uncle of the complainant. " He is very old and due to old age he needs to be looked c after by his son i.e. accused lshwar Singh. If lshwar Singh is released from jail in view of the cordial relations between the parties, both the families would be able to live together peacefully without any ill will".

11. It was, therefore, jointly prayed on behalf of the parties that the appellant may be released by treating. the sentence already undergone by the appellant-accused as sufficient. r

12. An affidavit is also filed by victim Devi Singh wherein he has stated that he is the complainant-injured. It is stated that the E contents in the affidavit filed by appellant accused regarding compromise between accused No.1 and the complainant are true. A prayer was made by the learned counsel for the parties to dispose of appeal on the basis of compromise between the parties.

13. Now, it cannot be gainsaid that an offence punishable under Section 307, IPC is not a compoundable offence. Sec- \ ,.

tion 320 of the Code of Criminal Procedure, 1973 expressly states that no offence shall be compounded if it is not coinpoundable under the Code. At the same time, however, while dealing with such matters, this Court may take into account a G relevant and important consideration about compromise between the parties for the purpose of reduction of sentence.

14. In Jetha Ram v. State of Rajasthan, (2006) 9 SCC 255, Murugesan & Ors. v. Ganapathy Velar, (2001) 10 SCC 504 and

H lshwarlal v. State of M.P, JT 1988 (3) SC 366 (1), this C9urt, while

taking into account the fact of compromise between the parties, A reduced sentence imposed on the appellant-accused to already undergone, though the offences were not compoundable. But it was also stated that in Mahesh Chand v. State of Rajasthan, AIR

1988 SC 2111, such offence was ordered to be compounded.

15. In our considered opinion, it would not be appropriate B 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 C 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 D 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 ap- E plied 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.

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.

G If the appellant has not paid the amount of fine, he will pay such amount within four weeks from today.

18. ordered accordingly.

R.P.

Appeal partly allowed.