STATE OF MADHYA PRADESH v. BHERULAL SON OF MANGILAL

(BY SHRI NITENDRA VAJPAYEE - ADVOCATE) .....RESPONDENTS 2 CRIMINAL APPEAL No 1637 OF 2014 BETWEEN:-

#1. DASRATH SON OF HEERALAL, AGE 28 YEARS;

#2. RAMPRASAD SON OF HEERALAL, AGE 22 YEARS;

#3. HEERALAL SON OF MANGILAL, AGE 54 YEARS;

#4. PEPABAI WIFE OF HEERALAL, AGE 40 YEARS, ALL RESIDENT OF VILLAGE RAVDIYAPIR, P.S. BHAPECHALANA, DISTRICT UJJAIN (BY SHRI SAJID IQBAL ANSARI AND SHRI NITENDRA VAJPAYEE - ADVOCATES) .....APPELLANTS AND THE STATE OF MADHYA PRADESH THROUGH POLICE STATION BHAPCHLANA DISTRICT UJJAIN (MADHYA PRADESH) (BY SHRI SUDARSHAN JOSHI - GOVERNMENT ADVOCATE) .....RESPONDENT CRIMINAL APPEAL No 563 OF 2021 BETWEEN:-

#1. BHERULAL SON OF MANGILAL, AGE 38 YEARS;

#2. GIRDHARI, SON OF MANGILAL, AGE 33 YEARS

#3. MUKESH SON OF BHAGWANLAL, AGE 25 YEARS;

#4. GOKUL SON OF BHAGWANLAL, AGE 26 YEARS,

#5. ISHWARLAL SON OF MANGILAL, AGE 27 YEARS;

#6. GANGABAI @ RADHABAI WIFE OF BHERULAL, AGE 35 YEARS, ALL RESIDENT OF VILLAGE RAODIYAPEER, P.S. BHATPACHLANA, DISTRICT UJJAIN 3 (MADHYA PRADESH) (BY SHRI NITENDRA VAJPAYEE - ADVOCATE) AND .....APPELLANTS THE THROUGH BHATPACHLANA (MADHYA PRADESH) STATE OF MADHYA PRADESH STATION UJJAIN DISTRICT POLICE (BY SHRI SUDARSHAN JOSHI - GOVERNMENT ADVOCATE) .....RESPONDENT These appeals coming on for settlement this day, JUSTICE ANIL VERMA passed the following: J U D G M E N T This judgment shall govern disposal of criminal appeal No. 5367 of 2021, criminal appeal No. 1637 of 2014 and criminal appeal No. 563 of 2021, as Cri.A. No. 5367/2021 has been filed by State of MP under section 377 of Cr.P.C. for enhancement of the sentence awarded to appellants in criminal appeal No. 563 of 2021 passed in ST No. 230/2014 vide judgment dated 12.1.2021 by Additional Sessions Judge Badnagar; criminal appeal No. 1637 of 2014 has been filed by appellants Dasrath and others under section 374 of Cr.P.C. against the judgment dated 13.10.2014 passed by Additional Sessions Judge Badnagar, District Ujjain in ST No. 280/2013 whereby the appellants have been convicted and sentenced under section 307 read with Section 34, section 323 read with section 34 and sentenced to 5 years RI each with fine of Rs. 1,000/- each, 1 year RI with fine of Rs. 250/- each; criminal appeal 4 No. 563 of 2021 has been filed by appellants Bherulal and others under section 374 of Cr.P.C against the judgment dated 12.1.2021 passed by Additional Sessions Judge Badnagar District Ujjain in ST No. 230/2014 whereby the appellants have been convicted and sentenced under section 148, 307/149, 325/149 and 506 Part II of IPC and sentenced to 1 year RI, 5 years RI, 3 years RI and 6 months RI to each appellant with fine of Rs. 500/- (each count) each.

#2. For the sake of convenience, the facts are taken from criminal appeal No. 563 of 2021.

#3. The facts of the case in brief are that on 7.3.2014 Pepabai (PW-1) was returning from Kharchodkala alongwith his son PW-2 on his motorcycle, at about 5 pm when they reached at village Ravdiyanpeer, accused Bheru alongwith his wife Gangabai came there on motorcycle and obstructed their way, then Bherulal gave a blow of stick on the head of Dashrath and co-accused Gangabai gave a blow of stick on head of Pepabai. Thereafter other accused persons Ishwar, Girdhari, Gokul, Mukesh came there armed with farsi, axe and sticks and they have jointly assaulted upon Pepabai and Dashrath due to which they have sustained various injuries. Accused persons also tear blouse of complainant Pepabai. The whole incident is witnesses by Manju and her husband Heeralal, accused persons also abused them in a filthy language and threatened them that today they will kill them, due to the previous enmity regarding the land dispute they have committed this offence. Accordingly offence has been registered.

#4. The MLC of victim persons was conducted by Dr. Suyash Shrivastava (PW-5) during the investigation. Investigating officer 5 prepared the spot map and on the basis of discovery statement of accused persons, have recovered farsi, axe and wooden stick and motorcycle from their possession.

#5. After due investigation charge sheet was filed before JMFC Badnagar who committed the case to the court of Sessions, Ujjain which was later on transferred to court of Additional District Judge Badnagar for trial. The trial court framed charges against the appellants. The appellants/accused persons abjured their guilt and pleaded that they have been falsely implicated in this offence. The prosecution examined as many as 14 witnesses, whereas the accused persons examined one witness Dinesh (DW-1).

#6. The trial Court after appreciating the evidence available on record, convicted and sentenced the appellants as mentioned herein above. Being aggrieved by the judgment of conviction and order of sentence, the appellants/accused and State of Madhya Pradesh have preferred present appeals before this court.

#7. During pendency of all these criminal appeals, joint compromise petition under section 320(2) of Cr.P.C. has been filed by both the parties in criminal appeal Nos. 1637 of 2014 and 563 of 2021. Factum of compromise was duly verified by the Principal Registrar of this court. A verification report has been submitted to the effect that the parties have entered into compromise with their free will and there is no undue influence, pressure, force, duress and coercion over the parties.

#8. In the present cases also the parties have duly entered into the compromise and compromise has been verified by this court and has been found to be voluntarily entered into by the complainants. 6

#9. Appellants in criminal appeal Nos. 1637 of 2014 and 563 of 2021 have preferred both the appeals on several grounds, but during course of arguments, learned counsel for the appellants in both these appeals did not assail the conviction of appellants on merit. They did not assail the finding part of the judgment. They confined their arguments only to the quantum of sentence and his only prayer is that the jail sentence of appellants be reduced to the period already undergone as the appellants have already suffered more than two months jail incarceration. They have been facing trial since 2014 and matter has been amicably settled between them. They belong to same family. Hence it is prayed that their jail sentence may be reduced to the period already undergone.

#10. Per contra learned counsel for State/appellant has opposed the prayer made by learned counsel for appellants by submitting that the trial court has rightly convicted them but looking to the nature of offence, they have not punished with sufficient punishment. Hence the state of MP has filed criminal appeal No. 5367 of 2021 for enhancement of jail sentence awarded to the appellants.

#11. Learned counsel for the parties heard at length and perused the record.

#12. The offences under section 325/149 and 506 Part II IPC is compoundable in nature. But offence under section 307/149 is non compoundable.

#13. Hon'ble Supreme court in the matter of Ishwar Singh Vs. State of Madhya Pradesh reported in AIR 2009 SCC 675 in a similar case where the offence under Section 307 of IPC was committed and parties had compromised the matter while noting the fact that though the offence is not 7 compoundable but sentence can be reduced in view of the compromise, has held as under:

#13. Now, it cannot be gainsaid that an offence punishable under Section 307, IPC is not a compoundable offence. Section 320 of the Code of Criminal Procedure, 1973 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 purpose of reduction of sentence. the parties

#14. In Jetha Ram v. State of Rajasthan, (2006) 9 SCC 255, Murugesan & Ors. v. Ganapathy Velar, (2001) 10 SCC 504 and Ishwarlal v. State of M.P., JT 1988 (3) SC 366 (1), 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 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 to order compounding of an offence not compoundable under the Code statutory ignoring and 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 keeping aside 8 relevant circumstance which, the Court may keep in mind.

#14. In view of the submissions, although the conviction has not been challenged but perusal of the evidence available on record also justifies the judgment of conviction passed by the trial court. So far as the quantum of jail sentence is concerned, the submission made by learned counsel for the appellants in criminal appeal Nos. 1637 of 2014 and 563 of 2021appear to be just and proper. All the appellants remained in jail for the period of more than two months. It is noteworthy that offence under section 307/149 IPC is non compoundable offence and matter has been compromised between both the parties in respect of other compoundable offence, factum of compromise may be taken into consideration. Therefore, it would be appropriate to reduce the jail sentence of appellants to the period already undergone. Although state has prayed enhancement of jail sentence awarded to appellants/accused persons, but looking to the factum of compromise, no need to enhance the jail sentence. Hence criminal appeal No. 5367 of 2021 deserves to be dismissed.

#15. Having regard to the aforesaid, criminal appeal No. 5367 of 2021 is hereby dismissed; criminal appeal No. 1637 of 2014 and criminal appeal no. 563 of 2021 are partly allowed by maintaining the conviction of appellants/accused but reducing their jail sentence to the period already undergone by them. The appellants are on bail, their bail bond and surety bond stand discharged. The order regarding disposal of the property shall be as per the orders of the trial Court. 9

#16. Let a copy of this judgment be sent to the trial Court along with the record of the trial Court for information and necessary compliance. The signed order be placed in the record of criminal appeal No. 1637 of 2014 and copy whereof be placed in the record of connected criminal appeals. C.C. as per rules. (VIVEK RUSIA) J U D G E (ANIL VERMA) J U D G E BDJ BHUNESH WAR DATT DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, 2.5.4.20=3fb5bcda9fd75d95d6c7cdcbd092 ee5a74a94a5534aed3a66d9385cfcfc201e0, postalCode=452001, st=Madhya Pradesh, serialNumber=89FD75A8D0C99E05779A32 7974E46BC85102826CE0604B211E4C91102 B4D1269, cn=BHUNESHWAR DATT