Full Judgment
1 HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT, JABALPUR SINGLE BENCH PRESENT: HON'BLE JUSTICE SHRI N. K. GUPTA CRIMINAL APPEAL NO.543/2000 Bholaprasad and 5 others Vs. State of Madhya Pradesh ........................................................................................................... For the appellants : Shri Raman Patel, Advocate. For the respondent : Shri G. S. Thakur, Panel Lawyer. For the complainant : Shri A.K. Paroha. ........................................................................................................... JUDGMENT
(Delivered on the 26th day of July, 2012) The appellants have preferred this appeal against the judgment dated 18.2.2000, passed by the Additional Sessions Judge, Mauganj, District Rewa in ST. No.93/1998 whereby the appellants were convicted for offences punishable under Sections 307 read with Section 149 & 148 of I.P.C and sentenced for 7 years rigorous imprisonment with fine of Rs.500/- and six months rigorous imprisonment respectively. In default of payment of fine, four months rigorous imprisonment was directed in addition.
2. The prosecution's story in short is that on 1/6/1997 the victim Neelkanth (PW2) was busy in collecting the bamboos so 2 that the roof of his house could be prepared at Village Vadhwakothar, Police Station Naigadhi, District Rewa. He was accompanied by Ramkumar (PW3). After doing some work in the evening he went to answer the call of nature. Thereafter, at about 6.00 p.m in the evening, he went to the courtyard of the witness Ramkumar (PW3) where the appellants were ready with axes, tangis and sticks and they assaulted the victim Neelkanth by such weapons. On shouting of the victim Neelkanth, Sulochana (PW1) came to the spot. She lied down upon the victim. Thereafter, Ramkumar (PW3), Laxman Prasad (P.W.5) and other villagers intervened in the incident and therefore, Neelkanth could be saved. Neelkanth was taken to the Police Station, Naigadhi where he lodged an FIR Ex.P/4. He was directed for his medico legal examination. Dr. H.C. Mishra (PW10) had examined the victim Neelkanth and gave his report Ex.P/7. He found as many as six injuries to the victim Neelkanth. Out of those there was an incised wound on the region of right parietal bone where some arteries were damaged. He sustained blunt injuries over the left calf, centre of the back, left shoulder, right jaw and on a canine tooth. The patient was admitted. In the opinion of Dr. Mishra, injury caused on his head was grave. After due investigation a charge sheet was filed by the Police of Police Station Naigadhi before JMFC, Mauganj who committed the case to Sessions Judge, Rewa and ultimately it was transferred to the Additional Sessions Judge, Mauganj.
3. The appellants adjured their guilt. They took a specific 3 plea that they were falsely implicated due to dispute of the land. In defence Gulabia (DW1), Dhanushdhari (DW2)and Satyahari Prasad (DW3) were examined as defence witness.
4. The learned Additional Sessions Judge after considering the evidence of both the parties convicted and sentenced the appellants as mentioned above.
5. During the pendency of this appeal the victim Neelkanth has submitted an application. On 14.5.2012 he appeared before the Court and after his due identification he has submitted that he is willing to do the compromise with a free consent and his application was kept pending because the offence under Section 307 as well as Section 148 of I.P.C were not compoundable.
6. I have heard the learned counsel for the parties.
7. Learned counsel for the appellants has submitted that the victim Neelkanth did not sustain any fatal injury and therefore, the crime committed by the appellants would come in the purview of Section 324 read with Section 149 of I.P.C. not a days the offence under Section 324 of I.P.C is not compoundable but, it was compoundable when the incident took place and therefore, compromise may be accepted. It is also submitted that each of the appellants remained in custody for approximately 40-50 days and therefore, looking to the compromise their sentence for offence punishable under section 148 of I.P.C may be reduced to the period for which they have already undergone in the custody.
8. After considering the submissions made by learned counsel for the parties and looking to the factual position of the 4 case, it is to be decided as to whether the victim Neelkanth had any fatal or grave injury ?. Whether the compromise can be accepted for offence punishable under Section 324 of I.P.C ?. and Whether the sentence can be reduced in the light of the compromise ?.
9. On the first point, Dr. H.C. Mishra (PW10) was a key witness in the case. He did not say that out of the six injuries remaining five injuries were grave or fatal. He did not opine that tooth was broken in the incident and therefore, no injury except the head injury was either grave or fatal. For head injury it is apparent that no fracture took place on the head and therefore, the appellants who, assautled on the head of the victim Neelkanth did not assault with much pressure. Dr. B.K. Sharma (PW4) an expert from the Forensic Department of Medical College Rewa had examined the witness Neelkanth after six weeks of the incident. He found that there was a scar on the head of the victim and wound was completely healed. There was no swelling, no pain and nothing. Under such circumstances, by the report of Dr. Mishra when no fracture was caused on the head of the victim, no any symptom of brain hemorrhage was visible, it cannot be said that injury caused on the head of the victim Neelkanth was a fatal injury. Looking to the description of the injury it does not fall in any of the category of section 320 of I.P.C and therefore, it was not a grave injury. However, it is apparent that it was caused by some sharp cutting weapon.
10. Under such circumstances, where the victim did No.5 sustain any fatal or grievous injury, blow could not cut the bones of his skull but, injury was caused by a sharp cutting weapon therefore, offence punishable under Sections 307 or 326 of I.P.C would not constitute. Only offence under Section 324 of I.P.C may be constituted against the appellants who, assaulted the victim Neelkanth on his head and such offence will be constituted against the remaining appellants with help of Section 149 of I.P.C. Since Neelkanth has compounded the offence voluntarily and at the time of incident offence under Section 324 of I.P.C was compoundable therefore, not only the permission to compromise is granted but, the compromise filed by the parties is also accepted at present and therefore, the appellants cannot be convicted for offence punishable under Section 324 of I.P.C even due to that compromise.
11. As far as the offence punishable under section 148 of I.P.C is concerned the learned counsel for the appellant did not challenge the conviction directed against the appellants for that offence and therefore, there is no need to discuss the conviction of the said offence on merits.
12. So far as the sentence is concerned, learned counsel for the appelants has informed that the appellants remained in the custody for 47-58 days. Most of the appellants remained in the custody for 54 days. Though offence punishable under Section 148 of I.P.C is not compoundable but, when the main and major offence is compounded, there is no necessity to punish the appellants severely for the remaining non-compoundable offence. 6 The trial Court has directed a sentence of six months rigorous imprisonment for the offence punishable under Section 148 of I.P.C. The appellants remained in the custody for approximately 50 days on average and they faced the trial and appeal for at least 14 years. Under such circumstances, looking to the compromise, custody period as well as the period of the trial and appeal it is a fit case in which sentence may be reduced to the period which they have already undergone in the custody.
13. On the basis of the aforesaid discussion the appellants cannot be convicted for offence punishable under Section 307 of I.P.C and they cannot even be convicted for offence punishable under Section 324 of I.P.C under the same head of the charge because of the compromise. Therefore, the appeal filed by the appellants is hereby partly allowed. Conviction as well as the sentence directed for the offence punishable under Section 307 of I.P.C is hereby set aside. The appellants are acquitted from the charges of offence punishable under section 307 of I.P.C. However, the conviction directed under Section 148 of I.P.C is hereby maintained but, sentence is reduced to the period which the appellants have already undergone in custody.
14. Presence of the appellants is no more required in the case and therefore, it is directed that their bail bonds shall stand discharged.
15. Copy of the judgment be sent to the trial Court along with its record for information and to return the fine amount if deposited by the appellants for offence punishable under Sectio”
307. of I.P.C. (N.K.GUPTA) JUDGE 26 7.2012 bina