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2022 DIGILAW 1099 (JHR)

Jagdish 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. 34 of 2000 in connection with Sarawan (Sonaraithari) P.S. Case No. 164 of 1998, corresponding to G.R. Case No. 932 of 1998 & T.R. No. 213 of 2000, Deoghar, Jharkhand, whereby and where under the appellant no. 1 Jagdish Mahto was held guilty for the offence punishable u/s 307 of IPC and sentenced to undergo rigorous imprisonment for 7 years along with fine of Rs. 2000/- (Rs. Two Thousand only) in default of payment of fine further directed to undergo imprisonment for 3 months. Further rest of the appellants were held guilty for the offence punishable u/s 323 of IPC and sentenced for six months RI along with fine of Rs. 500/- (Rs. Five Hundre Only) each and in default of payment of fine further directed to undergo R.I. for one month’s imprisonment. 2. Prosecution story is based on the fardbeyan of informant Bishwanath Mahto (P.W. 6) s/o late Manna Mahto resident of village Bagjhopa P.S. Sonaraithari, Distt. Degohar recorded at Sadar Hospital, Deoghar on 22.11.1998 at about 11.30 hours by A.S.I., B.D. Prasad of town P.S. Deoghar which was registered for aforementioned section on 26.11.1998 vide Sarawan (Sonaraithari) P.S. Case No. 164 of 1998 dated 26.11.1998 at 10.30 hours. Informant Bishwanath Mahto alleged that on 21.11.1998 from 10.00 a.m. he along with his brother Kumi Mahto, nephew Binod Mahto and son Rajendra Mahto was harvesting his paddy field near dam and after harvesting they had prepared bundles of the harvested paddy then at about 4.00 p.m. from field of Arhar situated at northern side Jagdish Mahto, Badan Mahto, Mauzi Lal Mahto, Deora J. Mahto, Basant Mahto, Sanjay Mahto, Parwal Mahto Shankar Mahto, Ramu Mahto, Tej Narayan Mahto all resident of village-Bagjhopa came there and Jagdish Mahto exhorted to kill as he was harvesting paddy. Thereafter, all the accused persons assaulted. Jagdish Mahto was armed with sword, Parwal Mahto was armed with spear and others were armed with lathi. He, his brother Kumi Mahto and Nephew Binod Mahto sustained injuries. They also took away four thali, one lota and one balti and also took away the bundles of harvested paddy. Thereafter, all the accused persons assaulted. Jagdish Mahto was armed with sword, Parwal Mahto was armed with spear and others were armed with lathi. He, his brother Kumi Mahto and Nephew Binod Mahto sustained injuries. They also took away four thali, one lota and one balti and also took away the bundles of harvested paddy. There were 10-15 other persons and Jagdish Mahto was claiming that the field belonged to him as the field was in the name of his ancestor. Threat was also extended by the accused persons, if case would be lodged then he would be killed. As a witness Jhabu Mahto- nephew of informant also signed fardbeyan of Bishwanath Mahto. Injured were medically examined. Statement of the witnesses were recorded and I.O. inspected the place of occurrence. I.O. arrested accused Shankar Mahto on 27.12.1998 and after completing the investigation filed charge sheet in the case to the court of Sessions for adjudication. Charge against all the accused persons was framed on 18th May 2002 to which they pleaded not guilty and claimed to be tried by the Court. 3. 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. 4. Heard Mr. Arbind Kr. Choudhary, the learned counsel appearing on behalf of the appellants, Mr. Aashish Kumar, learned counsel appearing on behalf of the informant and Mr. Shiv Shankar Kumar, learned A.P.P. appearing for the State. Arguments advanced on behalf of the appellants & Informant 5. At the outset both the learned counsels appearing on behalf of the appellants and the informant jointly submitted that there was a case and counter case between both the parties. Against these appellants the case arose out of G.R. Case No. 932 of 1998 corresponding to Sarawan (Sonaraitharhi) P.S. Case No. 164 of 1998 and against the informant party of this case arose out of G.R. Case No. 931 of 1998 corresponding of Sarawan (Sonaraitharhi) P.S. case No. 163 of 1998 and after that both the parties were convicted in their respective cases which are under challenge vide two criminal appeals Cr. Appeal (SJ) No. 1251 of 2005 (the present one in hand) and Cr. Appeal (SJ) No. 1343 of 2005. Appeal (SJ) No. 1251 of 2005 (the present one in hand) and Cr. Appeal (SJ) No. 1343 of 2005. It has been jointly submitted that the cause of dispute in both the cases is the landed property dispute between both the parties which arose due to harvesting of paddy crops. 6. In the present appeal, a joint compromise petition has jointly been filed by both the parties. In the present case one person namely Binod Mahto was injured has sworn on affidavit also along with other appellants which has been filed vide I.A. No. 7998 of 2022 by way of joint compromise petition stating jointly that both the parties have amicably settled their dispute outside the court and now they have no grievances to each other and during the pendency of this instant criminal appeal a cordial relationship has been established 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, the appellant no. 1 namely Jagdish Mahto has been convicted u/s 307 of IPC which is non-compoundable in nature and although the rest of the appellants have been convicted for the offence punishable u/s 323 of IPC which is 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 had arisen due to harvesting of the paddy crops and now the cordial relationship has been restored and a compromise has taken place and in support of their contentions, the learned counsels appearing on behalf of both the parties (i.e. appellants and informant people) 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 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 7. 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 7. On the other hand, learned A.P.P. for the State opposed the contentions raised on behalf of the appellants, but, did not deny the fact that the compromise has taken place and to that effect one I.A. vide I.A. No. 7998 of 2022 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 amicably settled their dispute outside the court by compromise and settlement, arrived at between the parties and in another appeal (in counter case) also pending vide Cr. Appeal (SJ) No. 1343 of 2005 before this Court, compromise has been taken place between the parties. Appraisal & Findings 8. 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. 9. At the outset it is found that the appellant no. 1 Jagdish Mahto has been convicted u/s 307 of IPC which is non-compoundable in nature and rest of the appellants namely Basant Mahto, Deoraj Mahto, Badan Mahto, Mauzi Lal Mahto, Parwal Mahto, Shanker Mahto and Tej Narayan Mahto have been convicted u/s 323 of IPC which is compoundable in nature. Taking into consideration the joint compromise petition filed before this Court vide I.A. No. 7998 of 2022, this Court have to decide the matter in the light of the observations of the Hon’ble Supreme Court in a number of cases where under the circumstances of the case even in a non-compoundable offence compounding of the case has been allowed on the basis of compromise if the dispute is personal in nature and not affecting the society at large. The authorities of the Hon’ble Supreme Court in this regard are appreciated in the following cases 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. The authorities of the Hon’ble Supreme Court in this regard are appreciated in the following cases 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. 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. 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. 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. 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 noncompoundable 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 ). ---------- Needless to say that offences which are noncompoundable 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 circumstances 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. 10. In view of the aforesaid propositions of law for allowing the offence to be compounded in a non-compoundable offence, it is found in the present case that both the parties have jointly filed a compromise petition vide I.A. No. 7998 of 2022 which has been duly affidavit by all the appellants except the appellant no. 1 who has become very old and lying on bed and also by Bishwanath Mahto, P.W. 6- informant and Binod Mahto injured. From the perusal of the said joint compromise petition it is found that there was a case and counter case pending between the parties. In the counter case (which was pending vide Cr. Appeal (SJ) No. 1343 of 2005) and in the present case (Cr. Appeal (SJ) No. 1251 of 2005) also both the parties have resolved their dispute once and for all due to intervention of well-wishers and friends and a cordial relationship has been restored between both of them. It is found that dispute had arisen due to harvesting of the paddy crops between both the parties which is personal in nature and society at large is not involved in the alleged commission of the offence. It is found that dispute had arisen due to harvesting of the paddy crops between both the parties which is personal in nature and society at large is not involved in the alleged commission of the offence. Over a period of time being the co-villagers they have decided to live harmoniously by setting at rest their all differences, therefore in the larger interest it is just and to ensure the responsive justice by allowing the appeal to be compounded even if the appellant no. 1 Jagdish Mahto has been convicted u/s 307 of IPC which is a non-compoundable offence in nature and the rest of the appellants have been convicted for the offence punishable u/s 323 of IPC which is compoundable in nature. If the appeal is decided on merit then there is a possibility that the peace and tranquility restored between the parties after a long period of time may get disturbed. Further, the present offence is said to have been committed in the year 1998 about 24 years back and now both the parties are living peacefully in a harmonious relationship and, therefore, in order to accord the quietus between the parties this appeal is fit to be compounded. 11. Having taken into consideration the aforesaid facts and circumstances, this appeal is allowed to be compounded. 12. 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. 34 of 2000 in connection with Sarawan (Sonaraithari) P.S. Case No. 164 of 1998, corresponding to G.R. Case No. 932 of 1998 & T.R. No. 213 of 2000, Deoghar, Jharkhand against the appellants is set aside. 13. The appellants are acquitted from the charges levelled against them. Since the appellants are on bail, they discharged from the liabilities of the bail bonds. 14. I.A. No. 7998 of 2022 also gets disposed of accordingly. 15. Let the LCR be sent back to the concerned learned court below along with the copy of the judgment.