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2022 DIGILAW 1098 (JHR)

Bishwanath Mahto v. State of Jharkhand

2022-09-01

NAVNEET KUMAR

body2022
ORDER : 1. This appeal is directed against the judgment of conviction and order of sentence dated 23.09.2005 passed by the learned 1st Additional Sessions Judge, Deoghar in Sessions Trial No. 87 of 1999 in connection with Sarawan (Sonaraitharhi) P.S. Case No. 163 of 1998, corresponding to G.R. Case No. 931 of 1998 & T.R. No. 454 of 1999, Deoghar, Jharkhand, whereby and where under the appellants along with one Dindayal Mahto were convicted and the appellant no. 1 Bishwanath Mahto has been convicted u/s 307 of IPC and sentenced to undergo R.I. for 7 years and a fine of Rs. 2000/- (Rupees two thousand) and in case of default of payment of fine Bishwanath Mahto was further ordered to undergo R.I. for three months. Original appellant no. 2 Kumi Mahto (since dead) appellant no. 3 Rajendra Mahto, Appellant No. 4 Yogendra Mahto were convicted for the offence punishable u/s 323 of IPC and sentenced to undergo R.I. for six months and a fine of Rs. 500/- (Rupees five hundred) and in case of default of payment of fine they were further directed to undergo one month Rigorous Imprisonment, the appellant no. 5 Binod Mahto was convicted for the offence punishable u/s 325 of IPC and sentenced to undergo R.I. for three years and a fine of Rs. 1000/- (Rupees one thousand) and in case of default of payment of fine, he was further directed to undergo R.I. for three months. 2. It is found that the among the five appellants one of appellants Kumi Mahto has expired and report to that effect has also been received from the court of District & Additional Sessions Judge-I, Deoghar, from which it appears that out of the five appellants one of the appellants Kumi Mahto has expired as far back as on 10.02.2016 and the death certificate has also been provided by the Karyakari Pradhan – Suresh Kumar Garuav of gram Panchayat Kusumthar, Block Sonaraythadi, District-Deoghar and rest of the appellants are alive. The learned defence counsel appearing on behalf of the appellants submitted that no close relative has come forward to continue with this appeal on behalf of the appellant Kumi Mahto and, therefore, let this appeal be abated. The learned A.P.P. for the State submitted that the appellant no. The learned defence counsel appearing on behalf of the appellants submitted that no close relative has come forward to continue with this appeal on behalf of the appellant Kumi Mahto and, therefore, let this appeal be abated. The learned A.P.P. for the State submitted that the appellant no. 2 Kumi Mahto has expired and since no close relative has come forward to continue with this appeal on behalf of the deceased appellant, let this appeal be abated. Having taken into consideration aforesaid facts and submissions of the parties, this appeal is abated with respect to the appellant No. 2 Kumi Mahto, let his name be deleted from the cause title of memo of appeal and this appeal is heard and disposed of and rest of the four appellants are renumbered. 3. Briefly stated the prosecution story, as unfolded in the fardbeyan of the informant Parawal Mahto (P.W. 5) s/o late Khubha Mahto resident of village Bagjhopa P.S. Sonaraitharhi, Distt. Degohar dt. 24.11.1998, and recorded at Sadar Hospital, Deoghar in emergency ward by R.P Chaurasia then the O.C. Sonaraitharhi P.S., was that on 21.11.1998 at about 5 p.m. when he reached near Kali Manda at village Bagjhopa after taking wheat and manure in the meantime Bishwanath Mahto armed with sword came out from field for Arhar and uttered that enemy was in the range so he should have been killed. He assaulted him with sword on his head, he warded off blow of sword and thumb of right hand was cut and also sustained injuries on head. At the same time, Kumi Mahto, Rajendra Mahto, Yogendra Mahto, Binod Mahto, Dindayal Mahto also assaulted with rod and lathi by which he sustained injuries on his person. He became unconscious. On his alarm his brother Ramu Mahto and Shanker Mahto, who were making bundle of paddy came there to rescue him. They were also beaten by the accused persons with lathi, danda and sword. They were also admitted in Hospital with him. He was taken to police station, but he was not fully conscious, therefore, he could not explain about the occurrence and his brother Shanker Mahto explained whatever had taken place in his presence. Shankar Mahto and Ramu Mahto informed that they were also beaten by them. They were also admitted in Hospital with him. He was taken to police station, but he was not fully conscious, therefore, he could not explain about the occurrence and his brother Shanker Mahto explained whatever had taken place in his presence. Shankar Mahto and Ramu Mahto informed that they were also beaten by them. Reason of the quarrel was that buffalo of Bishwanath Mahto had grazed his paddy field and for this there had been quarrel between both the families. Other reason was that Bishwanath had harvested paddy for last 3 years and therefore Panchayati was held and Bishwanath was beaten. Therefore, accused person’s formed unlawful assembly and injured them. On the basis of the aforesaid fardbeyan of the informant recorded on 24.11.1998 at Sadar Hospital Deoghar in the emergency ward by the then Officer In-Charge of Sarawan Police Station (Sonaratharhi)a formal case was registered vide Sarawan P.S. Case No. 163 of 1998. Prior to recording the fardbeyan of Parwal Mahto a Sanha No. 276 dated. 21.11.1998 was registered on the basis of statement of Shankar Mahto. After completing investigation charge sheet was submitted to court. Lower court took cognizance and committed the case to the court of sessions for adjudication. Charge against all the accused persons for offence u/s 147, 148, 323, 324, 325, 307/149 of IPC was framed on 29.07.2002 to which they pleaded not guilty and claimed to be tried by the court. 4. Learned trial court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal. 5. Heard Mr. Aashish Kumar, the learned counsel appearing on behalf of the appellants, Mr. Arbind Kr. Choudhary, the learned counsel appearing on behalf of the informant and Mrs. Nehala Sharmin, learned A.P.P. appearing on behalf of the State. Arguments advanced on behalf of the appellants & Informant 6. At the outset both the learned counsel appearing on behalf of the appellants and the informant party submitted that there was a case and counter case between both the parties. Against these appellants the present case arose out of G.R. Case No. 931 of 1998 corresponding of Sarawan (Sonaraitharhi) P.S. case No. 163 of 1998 and against the informant parties of the present case, a G.R. Case No. 932 of 1998 corresponding to Sarawan (Sonaraitharhi) P.S. Case No. 164 of 1998 was instituted by the appellants. Against these appellants the present case arose out of G.R. Case No. 931 of 1998 corresponding of Sarawan (Sonaraitharhi) P.S. case No. 163 of 1998 and against the informant parties of the present case, a G.R. Case No. 932 of 1998 corresponding to Sarawan (Sonaraitharhi) P.S. Case No. 164 of 1998 was instituted by the appellants. Both the parties were convicted in their respective cases which are under challenge vide two criminal appeals Cr. Appeal (SJ) No. 1343 of 2005 (the present one ) and Cr. Appeal (SJ) No. 1251 of 2005 and both are pending before court and disposed of simultaneously. It has been jointly submitted that the dispute in both the cases are arising because of the landed property dispute between both the families and due to harvesting of paddy crops. 7. In the present appeal a joint compromise petition has been filed by both the parties. In the present case two persons were injured namely Parawal Mahto and Shankar Mahto and both of them have sworn on affidavit which has been filed vide I.A. No. 7997 of 2022 by way of joint compromise petition jointly stating therein that both the parties have amicably settled their dispute outside the court and they have no grievances to each other and during the pendency of this instant criminal appeal a cordial relationship has been restored between the parties and, therefore, it is urged on behalf of both the parties that let this appeal be allowed as compounded despite the fact that the offence under which one of the appellants namely Bishwanath Mahto have been convicted u/s 307 of IPC is not compoundable in nature, although the rest of the appellants Kumi Mahto, Rajendra Mahto and Yogendra Mahto have been convicted for the offence punishable u/s 323 of IPC and Binod Mahto has been convicted for the offence punishable u/s 325 of IPC and both the sections 323 and 325 of IPC are compoundable in nature. It is urged on behalf of both the parties that let this appeal be allowed as compounded by taking into consideration that the dispute was arisen due to harvesting of the paddy crops and now compromise has taken place. It is urged on behalf of both the parties that let this appeal be allowed as compounded by taking into consideration that the dispute was arisen due to harvesting of the paddy crops and now compromise has taken place. In support of their contentions the learned counsels appearing on behalf of both the parties (i.e. appellants and informant) relied upon the rulings of Hon’ble the Apex Court where the circumstances have been set out to compound the offences which are non-compoundable in nature which are as under: 1. Narinder Singh & Ors. Vs. State of Punjab & Another reported in (2014) 6 SCC 466 , 2. Yogendra Yadav & Ors. Vs. State of Jharkhand & Anr. reported in (2014) 9 SCC 653 , 3. Gian Singh vs. State of Punjab &Anr. reported in (2012)10 SCC 303 & 4. State of Madhya Pradesh vs. Laxmi Narayan & Ors. Reported in (2019) 5 SCC 688 Arguments advanced on behalf of the State 8. On the other hand, the learned A.P.P. for the State opposed the contentions raised on behalf of the appellants, but, did not deny the facts that the compromise has taken place and to that effect one I.A. has been filed and also there was a case and counter case between the parties and now during the pendency of the present appeal both the parties have entered into compromise and settlement arrived at between the parties and also in another appeal in counter case pending vide Cr. Appeal (SJ) No. 1251 of 2005 compromise and settlement have taken place between both the families and the dispute between them was trivial in nature because the cattle of appellants had grazed the agricultural field of the informant and also due to harvesting of paddy crops which are personal nature of dispute and therefore it is urged that a suitable order may be passed. Appraisal & Findings 9. Having heard the learned counsel for the parties, perused the record of this case including the lower court records and the compromise petition arrived at between both the parties vide I.A. No. 7997 of 2022. 10. It is found that one of the appellants namely Bishwanath Mahto has been convicted u/s 307 of IPC and the appellant no. 2 Rajendra Mahto and appellant no. 3 Yogendra Matho have been convicted u/s 323 of IPC and Binod Mahto appellant no. 10. It is found that one of the appellants namely Bishwanath Mahto has been convicted u/s 307 of IPC and the appellant no. 2 Rajendra Mahto and appellant no. 3 Yogendra Matho have been convicted u/s 323 of IPC and Binod Mahto appellant no. 4 has been convicted for the offence punishable u/s 325 of IPC. It is found that the two sections 323 & 325 of IPC are compoundable in nature whereas the section 307 of IPC under which Bishwnath Mahto has been convicted is not compoundable in nature. But, taking into consideration the joint compromise petition filed before this Court vide I.A. No. 7997 of 2022, and in the light of the observations of the Hon’ble Supreme Court in a number of cases where under the circumstances of the case in a non-compoundable offence the appeal is allowed to be compounded if the dispute is of personal in nature and not affecting the socie ty at large. The authorities of the Hon’ble Supreme Court are appreciated as under: 1. Narinder Singh & Ors. Vs. State of Punjab & Another reported in (2014) 6 SCC 466 , 2. Yogendra Yadav & Ors. Vs. State of Jharkhand & Anr. reported in (2014) 9 SCC 653 , 3. Gian Singh vs. State of Punjab & Anr. reported in (2012) 10 SCC 303 & 4. State of Madhya Pradesh vs. Laxmi Narayan & Ors. Reported in (2019) 5 SCC 688 The Hon’ble Supreme Court in Gian Singh vs. State of Punjab & Anr. (2012)10 SCC 303 laid down following principles: “58. Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor...............................” 59.xxx xxx xxx 60.xxx xxx xxx “61. …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 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 question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” These principles are subsequently reiterated in a number of cases. In State of Madhya Pradesh vs. Laxmi Narayan & Ors. (2019) 5 SCC 688 elaborating the principle the Hon’ble Supreme Court observed in para 15 as under: “15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves; 15.2. Such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society; 15.3. Similarly, such power is not to be exercised for the offences under the special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender; 15.4. xxx xxxxxx 15.5. While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc.” Further in the case of Yogendra Yadav & Ors. Vs. State of Jharkhand & Anr. Vs. State of Jharkhand & Anr. reported in (2014) 9 SCC 653 recapitulating the Gian Singh's case Principle (Supra) it has been observed as under : “4. ---------- Needless to say that offences which are non-compoundable cannot be compounded by the court. Courts draw the power of compounding offences from Section 320 of the Code. The said provision has to be strictly followed (Gian Singh v. State of Punjab [ (2012) 10 SCC 303 ). However, in a given case, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are non-compoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder, etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace. As a matter of fact from the aforesaid propositions of law as propounded by the Hon'ble Supreme court in Gian Singh's case (Supra), Laxmi Narayan's case (Supra), and Yogender Yadav's Case (Supra) it is now well settled that the offences which are noncompoundable cannot be compounded by a criminal Court under the section 320 of the Cr.P.C. In spite of that there is a scope of compounding the offences by invoking inherent powers of the High Court vested under section 482 of Cr.P.C. to prevent abuse of the process of any court and/or to secure the ends of justice by taking into consideration the circumstances surrounding the incident, the manner and mode under which the compromise has been arrived at between the parties, and further due consideration to the nature and seriousness of the offence, in addition to the conduct of the accused, before and after the incident. But, such power is to be exercised very carefully, diligently and cautiously as observed by Hon'ble Supreme Court in Narinder Singh & Ors. Vs. State of Punjab & Anr. reported in (2014) 6 SCC 466 , as follows : “22. Thus, we find that in certain circumstances, this Court has approved the quashing of proceedings under Section 307 IPC whereas in some other cases, it is held that as the offence is of serious nature such proceedings cannot be quashed. Though in each of the aforesaid cases the view taken by this Court may be justified on its own facts, at the same time this Court owes an explanation as to why two different approaches are adopted in various cases. The law declared by this Court in the form of judgments becomes binding precedent for the High Courts and the subordinate courts, to follow under Article 141 of the Constitution of India. Stare decisis is the fundamental principle of judicial decision-making which requires “certainty” too in law so that in a given set of facts the course of action which law shall take is discernible and predictable. Unless that is achieved, the very doctrine of stare decisis will lose its significance. Stare decisis is the fundamental principle of judicial decision-making which requires “certainty” too in law so that in a given set of facts the course of action which law shall take is discernible and predictable. Unless that is achieved, the very doctrine of stare decisis will lose its significance. The related objective of the doctrine of stare decisis is to put a curb on the personal preferences and priors of individual Judges. In a way, it achieves equality of treatment as well, inasmuch as two different persons faced with similar circum stances would be given identical treatment at the hands of law. It has, therefore, support from the human sense of justice as well. The force of precedent in the law is heightened, in the words of Karl Llewellyn, by “that curious, almost universal sense of justice which urges that all men are to be treated alike in like circumstances”. 23. As there is a close relation between equality and justice, it should be clearly discernible as to how the two prosecutions under Section 307 IPC are different in nature and therefore are given different treatment. With this ideal objective in mind, we are proceeding to discuss the subject at length. It is for this reason we deem it appropriate to lay down some distinct, definite and clear guidelines which can be kept in mind by the High Courts to take a view as to under what circumstances it should accept the settlement between the parties and quash the proceedings and under what circumstances it should refrain from doing so. We make it clear that though there would be a general discussion in this behalf as well, the matter is examined in the context of the offences under Section 307 IPC.” 24. xxx xxxxxx 25. xxx xxxxxx 26. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well. Therefore, only because FIR/charge-sheet incorporates the provision of Section 307 IPC would not, by itself, be a ground to reject the petition under Section 482 of the Code and refuse to accept the settlement between the parties. We are, therefore, of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely, whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used, etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 IPC were unnecessarily included in the charge-sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties. 11. In view of the aforesaid propositions of law as observed by the Hon’ble Supreme Court, in the present case, it is found that both the parties over a period of time during pendency of this appeal have resolved their dispute amicably and now the peace has restored between both of them, from the perusal of the joint compromise petition which has been filed vide I.A. No. 7997 of 2022, it is found that there was a case and counter case between both the parties and both the cases have been resolved amicably by the intervention of the well-wishers and friends outside the court and a cordial relationship has been restored. It has also been found from the record that dispute arose out of the harvesting of paddy crops between both the parties. It has also been found from the record that dispute arose out of the harvesting of paddy crops between both the parties. It is a personal nature of dispute and not the people at large are going to be effected and therefore, in the larger interest to accord the quietus between both the parties and in order to ensure the responsive justice, it is found just and fair that this appeal should be allowed as compounded, even one of the appellants namely Bishwanath Mahto has been convicted u/s 307 of IPC which is non-compoundable in nature and the appellant no. 4 namely Binod Mahto has been convicted u/s 325 of IPC and other appellants were convicted u/s 323 of IPC which is compoundable in nature and not affecting the society at large. In the interest of justice this appeal should be allowed as compounded on the basis of compromise and settlement so that purpose of justice would be meted out. 12. Having taken into consideration the aforesaid facts and circumstances of the case and relying upon the rulings of Hon’ble Supreme Court, it is found that this appeal is fit to be allowed to be compounded. 13. In the result, the impugned judgment of conviction and order of sentence dated 23.09.2005 passed by the learned 1st Additional Sessions Judge, Deoghar in Sessions Trial No. 87 of 1999 in connection with Sarawan (Sonaraitharhi) P.S. Case No. 163 of 1998, corresponding to G.R. Case No. 931 of 1998, Deoghar, Jharkhand against the appellants is set aside. 14. The appellants are acquitted from the charges leveled against them. Since the appellants are on bail, they discharged from the liabilities of the bail bonds. 15. I.A. No. 7997 of 2022 also gets disposed of accordingly. 16. Let the LCR be sent back to the concerned learned court below along with the copy of the judgment.