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2020 DIGILAW 584 (MP)

Munna v. State of Madhya Pradesh

2020-05-15

VISHAL MISHRA

body2020
JUDGMENT : Vishal Mishra, J. 1.This criminal appeal under Section 374 of Cr.P.C. assails the judgment of the trial Court dated 18.01.2005 passed by III Additional Sessions Judge, Fast Track district Guna (M.P.), in Sessions Trial No. 235/98, whereby appellant-Munna has been convicted under Sections 326 of the Indian Penal Code and sentenced to undergo RI for five years with fine of Rs. 500/- and remaining appellants have been convicted under Section 326/34 of the Indian Penal Code and sentenced to undergo RI for five years with fine of Rs. 500/- each, with default stipulation. 2. On earlier occasion, the criminal appeal was finally heard and decided by this Court vide judgment/order dated 06.11.2012 in Criminal Appeal No. 103/2005 in following terms:- "Looking to the nature of the offence and the period of sentence already undergone by the appellants and that this is first offence of the appellants, this appeal is allowed in part and the appellants are sentenced to the period already undergone by them but fine amount imposed upon the appellants is enhanced to Rs. 1000/- each in addition to the amount already awarded by the trial Court. Appellants are directed to deposit the enhanced fine amount within a period of 30 days from the date of certified copy of this order, failing which, they have to undergone simple imprisonment for a period of 30 days." 3. Against the aforesaid order dated 06.11.2012 (Munna and Ors. Vs. State of M.P.), the State Government has filed SLP which was registered as SLP (Criminal) No. 5722/2013 in the name of State of M.P. Vs. Munna & Ors. and was subsequently registered as Criminal Appeal No. 1738/2014. The aforesaid criminal appeal was heard and decided by the Hon'ble Supreme Court vide its order dated 14.08.2014 and considering the overall facts and circumstances, the Hon'ble Supreme Court has observed as under:- " ......... 8. In the circumstances of the case, we deem it appropriate to remit the matter to the High Court so that the High Court can pass a reasoned order. Hence, the impugned order is set aside. The appeal is remitted to the High Court. The High Court is requested to pass a reasoned order. We requested the High Court to pass a reasoned order within a period of three months from the date of receipt of this order by it. 9. Hence, the impugned order is set aside. The appeal is remitted to the High Court. The High Court is requested to pass a reasoned order. We requested the High Court to pass a reasoned order within a period of three months from the date of receipt of this order by it. 9. Since the accused were released from custody on sentence already undergone by them and the impugned order is set aside because it is unreasoned, we are not inclined to direct the respondents to surrender to jail. 10. The criminal appeal is disposed of in the afore-stated terms." 4. In pursuance to the aforesaid order passed by the Hon'ble Supreme Court, the matter again came up for hearing before this Court for rehearing. 5. Today, the matter is being listed for final arguments. 6. With consent of the parties, matter is finally heard. 7. As per the prosecution story, the incident is said to have taken place on 14.06.1998 at about 05:30 pm to the effect that Harveer and sister of Ramveer informed to Kalyan Singh that injured-Kailash has been caught by Sunua Adiwashi, Munna Adiwashi, Rambabu and Munna. Thereafter, they went to the spot and saw that injured-Kailash was found unconscious in blood pool. It is further submitted that due to previous enmity, some altercation took place between the parties which resulted into the registration of the criminal case against the appellants. During the course of investigation, police authorities have got conducted the M.L.C of injured Kailash. Seizure memo, Naksha Panchayatnama and other documents were prepared by the prosecution and after completion of investigation, the charge-sheet has been filed before the trial Court concerned. 8. The learned trial Court has framed the charges against the accused-appellants who have denied the charges and accordingly, they were put to trial. The prosecution in support of their case have examined fifteen prosecution witnesses and in defense, only one witnesses was examined. 9. It is argued by learned counsel for appellants that incident has taken place on 14.06.1998 and since then, the appellants have already faced partial conviction. The incident took place almost 20 years back and the appellants have already faced the trial and appeal for approximately 20 years. 9. It is argued by learned counsel for appellants that incident has taken place on 14.06.1998 and since then, the appellants have already faced partial conviction. The incident took place almost 20 years back and the appellants have already faced the trial and appeal for approximately 20 years. It is further submitted that complainant and the accused-appellants have entered into compromise and this Court vide its order dated 28.11.2016 sent the parties for verification of compromise and recording of statement before the Principal Registrar of this Court, who after recording the statement has given the report on 15.12.2016 to the following effect; "Present parties have been submitted copy of their Voter Cards & Adhar Cards regarding identification. Parties have filed I.A. No. 6995/2016 for compromise alongwith affidavit of complainant. After verifying from parties present before me that they have arrived at compromise voluntarily without any fear or force. According to Sec. 320 of CRPC the offences U/S. 326, 326/34 of IPC are not compoundable. Report is submitted accordingly. Therefore, list the case as per order of Hon'ble Court." 10. It is argued that in view of the judgment passed by Hon'ble Supreme Court in the case of Gian Singh Vs. State of Punjab, (2012) 10 SCC 303 , Jagdish Chanana & Ors. Vs. State Of Haryana & Anr. (2008) 4 SCC 511 and Nikhil Merchant Vs. Central Bureau of Investigation & Anr., 2008 (9) SCC 677 as well as of this Court in the matter of Umaprasad Shrivas and Ors. Vs. State of M.P. & Anr., 2013 Legal Eagle 2352 and Ramvati and Anr. Vs. Smt. Sadhana and Anr., 2016 (I) MPWN 159 and Manjit Singh Vs. Sate of Punjab and Others passed in Criminal Appeal No. 1090/2019, as the matter have already been compromised between the parties their jail sentence be reduced to that already undergone. 11. It is submitted that appellants have already undergone some part of their sentence which is reflected from the Chart below:- Sr. No. Name of Accused Date of Arrest Date of releasing from custody Period undergone in the custody 1 Munna 18.02.98 25.03.98 36 days 2 Rambabu 18.02.98 25.03.98 36 days 3 Gangaram 20.02.98 07.03.98 16 days 4 Balram @ Balvir 23.07.01 23.07.01 01 day 5 Sunua s/o Mardu 17.07.01 23.07.01 6 days 6 Laxman 23.07.01 23.07.01 1 day 12. No. Name of Accused Date of Arrest Date of releasing from custody Period undergone in the custody 1 Munna 18.02.98 25.03.98 36 days 2 Rambabu 18.02.98 25.03.98 36 days 3 Gangaram 20.02.98 07.03.98 16 days 4 Balram @ Balvir 23.07.01 23.07.01 01 day 5 Sunua s/o Mardu 17.07.01 23.07.01 6 days 6 Laxman 23.07.01 23.07.01 1 day 12. They have already entered into compromise, therefore, the appeal may be disposed off in terms of law laid down by Hon'ble Supreme Court in the case of Gian Singh (Supra) and Manjeet Singh (Supra). 13. Counsel for the appellant has further argued on the merits of the case and has stated that learned trial Court has not properly appreciated the evidence available on record. There are omnibus allegation levelled against the appellants regarding inflicting injury to the injured, therefore, the offence has been registered under Section 307 of IPC, but after investigation and on the basis of evidence available on record, the learned trial Court vide its judgment dated 18.01.2005, whereby the learned trial Court has acquitted the appellants from the charges under Section 307 of IPC and found that there is no intention to kill injured-Kailash and looking to the injuries found on the body of injured-Kailash, appellants have been convicted under Section 326 of IPC. Thus, the learned trial Court has held that no offence under Section 307 of IPC is made out in the case. 14. It is argued that even the learned trial Court has found that there was no intention of the appellants to kill injured-Kailash, therefore, learned trial Court has convicted the appellants under Section 326 of IPC. It is argued that the version of FIR (Ex. P/16) got registered by Kalyan Singh (PW-10) is totally contradictory from the version given by him before the trial Court. The entire prosecution story is changed by him. He has denied the factum that some girls coming to his house reporting the incident to him and thereafter, he went to the spot. The statement of Manoher Singh (PW-9) also read over to this Court which is contradictory to the statements of Kalyan Singh (PW-10) and Ram Singh (PW-8). The entire prosecution story is changed by him. He has denied the factum that some girls coming to his house reporting the incident to him and thereafter, he went to the spot. The statement of Manoher Singh (PW-9) also read over to this Court which is contradictory to the statements of Kalyan Singh (PW-10) and Ram Singh (PW-8). The factum of previous enmity was also pointed out by the prosecution as the report has been lodged by wife of the accused-Munna which is Ex-P/17, therefore as the previous enmity is double edged weapon, therefore, benefit of doubt should have been extended to the accused-appellants. He has prayed for setting aside of the judgment of conviction dated 18.01.2005. Counsel for the appellant has argued that conduct of Nihal Singh is unnatural. He was standing at the short distance about 10-20 feet, but despite of the same, no attempt was made by him to rescue the injured-Kailash Singh. This itself creates serious doubt over the entire prosecution story. Injured-Kailash (PW-14) is clarified the aforesaid aspect that Nihal Singh has not intervened and has not tried to rescue him owing to the fact that he was alone and owing to fear, he has not made any attempt to rescue the injured. Even it is argued by learned counsel for appellants that Nihal Singh is best prosecution eyewitness in the matter, but the prosecution is not chosen for examine him. Counsel for the appellants has drawn attention of this Court to the statement of Lokendra Singh Tomar (PW-12), Investigating Officer who categorically stated in para 7 of his cross-examination that he has not recorded the statement of Nihal Singh. Kalyan Singh (PW-10) has stated that he was working at his tube well and on hearing screaming voice of injured-Kailash, he saw that the accused persons, who were inflicted injuries to injured-Kailash by lathis and farsa. Thereafter, he shouted, accused persons ran away from the spot. It is argued that witnesses phool Singh (PW-1), Zameer Ahmad (PW-3), Phoola Bai (PW-6) and Kamal Singh (PW/7) have turned hostile and did not support the story of prosecution. 15. The rival parties have already entered into compromise, therefore, prayer was made to dispose of the appeal in terms of compromise. It is further submitted that the Court may award some compensation to be given to injured/complainant by the appellants. 16. 15. The rival parties have already entered into compromise, therefore, prayer was made to dispose of the appeal in terms of compromise. It is further submitted that the Court may award some compensation to be given to injured/complainant by the appellants. 16. Per contra, learned counsel for State has opposed the arguments advanced by the appellants and argued that there is sufficient material available on record to convict the accused-appellants. The learned trial Court has also taken lenient view that instead of Section 307 of IPC, accused-appellants have been convicted under Section 326 of IPC. He has drawn attention of this Court to the statement of injured-Kailash (PW-1) who has categorically stated that the accused Munna and Rambabu were armed with farsa and another accused armed with lathi. Accused-Munna has inflicted injury by farsa blow on the head of injured and accused-Rambabu has inflicted injury by farsa blow on the hand of the injured. Balveer has inflicted injury by lathi on the head of the injured, Sunua has inflicted injury by lathi on the hand of the injured, Laxman and Gangaram have also inflicted injury by lathies on the hand and on elbow of the injured. Injured-Kailash examined as P/14 who has categorically stated that there was some previous enmity between the parties and accused-appellants were threatening him for settling the matter as he has refused the same, therefore, he has been inflicted injuries by the accused-appellants. Counsel for the State has drawn attention of this Court to statement of Dr. Ramveer Singh Raghuwanshi (PW-11) was posted as Medical Officer in District Hospital, Guna has examined the injured-Kailash and he has found over the body of the injured and has given the report that the injuries No. 1 and 3 were inflicted by sharp cutting weapon and remaining injuries were inflicted by hard and blunt object. He has further pointed out that the injuries are serious in nature and has advised for X-ray. He has given the report as Ex. P/12. In the cross-examination his statement is also uncontroverted. Statement of Dr. R.K. Jain (PW-4) who was posted as radiologist in District Hospital, Guna and has conducted X-ray and has found that fracture of partial bone on the head of injured and submitted the report and x-ray plate as Exhibited as P/8 and P/9. It is argued that the injuries which have been received by the injured are medically corroborated. R.K. Jain (PW-4) who was posted as radiologist in District Hospital, Guna and has conducted X-ray and has found that fracture of partial bone on the head of injured and submitted the report and x-ray plate as Exhibited as P/8 and P/9. It is argued that the injuries which have been received by the injured are medically corroborated. The entire prosecution story is supported by the witnesses Ram Singh (PW-8), Kalyan Singh (PW-10) and injured-Kailash (PW-14). Thus, learned trial Court has rightly considered all the aspect of the case and there is ample evidence is available on record and has rightly convicted the accused-appellants. It is submitted that the offence under Section 326 of IPC is not compoundable in nature, therefore, no benefit of compromise entered into between the parties cannot be extended to the present appellants. He has prayed for dismissal of the appeal. 17. Heard learned counsel for the parties and perused the record. 18. It is seen from the order sheets dated 17.05.2018 that appellant No. 4-Sunua has expired and in pursuance to the said order, his name has already been deleted from the array of appellants. 19. It is true that the incident has taken place almost two decades back. The accused-appellants have already faced trial almost two decades. They have also undergone part of jail sentence as it is reflected in the aforementioned table. Coupled with the fact that parties have already entered into compromise which was duly verified by the Principal Registrar of this Court vide its order dated 15.12.2016. 20. The Hon'ble Supreme Court in the case of Gian Singh (Supra), Manjeet Singh (Supra), Jagdish Chanana (Supra) and Nikhil Merchant (Supra) as well as of this Court in the matter of Umaprasad Shrivas (Supra) and Ramvati (Supra), wherein the Hon'ble Supreme Court has considered the effect of compromise between the parties. The Hon'ble the Supreme Court in the case of Gian Singh (Supra) as held as under:- "61. The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above questions is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding". 21. Learned counsel for the parties also referred the judgment passed by Hon'ble Apex Court in the case of Khursheed & Anr. Vs. State of U.P. & Anr. reported in 2007 (4) RCR (Criminal) 495 wherein Hon'ble Apex Court has allowed the compromise at appellate stage before the Apex Court. They also relied the judgments rendered by this Court in the case of Pawan Vs. State of M.P. passed in Criminal Revision No. 378/2015 vide judgment dated 10.03.2016, Gulab Singh Vs. State of M.P. passed in Criminal Revision No. 691/2014 vide order dated 16.11.2015 and judgment rendered by Punjab Haryana High Court in the case of Hardeep Singh Vs. State of Punjab passed in Criminal Revision No. 1149/2014 (O & M) vide order dated 09.09.2014 and seeks parity. 22. The Hon'ble Supreme Court in latest pronouncement in the case of Manjit Singh (Supra) has held as under: "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". 23. From the statements of the injured-Kailash and Dr. Ramveer Raghuwanshi, it has been proved that the appellants caused grievous injury to injured-Kailash. Therefore the Courts below did not commit any error in convicting the applicant for offence punishable under Section 326/34 of IPC. Hence the findings recorded by both the Courts below are hereby confirmed. 24. 23. From the statements of the injured-Kailash and Dr. Ramveer Raghuwanshi, it has been proved that the appellants caused grievous injury to injured-Kailash. Therefore the Courts below did not commit any error in convicting the applicant for offence punishable under Section 326/34 of IPC. Hence the findings recorded by both the Courts below are hereby confirmed. 24. Now, considering the submissions put forth by the learned counsel for the appellants and looking to facts and circumstances of the case and the fact that the appellants-accused have already served jail sentence for some time and the fact that the parties have entered into a compromise which is duly verified by the Principal Registrar of this Court and also the fact that the incident has occurred more than 20 years back, this Court deems it appropriate to reduce to the sentence already undergone by them subject to payment of some compensation. Accordingly, it is directed that an amount of 25,000/- in all be paid to the injured as compensation and the same be given to the injured-Kailash within a period of 30 days from date of pronouncement of judgment. In default of payment of enhanced fine amount, the appellants shall surrender and are directed to undergo the remaining part of jail sentence. 25. Copy of this order be sent to the Court of Judicial Magistrate First Class, concerned for necessary information and compliance. Certified copy as per rules.