Ishwar Singh Vs.
State of Madhya Pradesh [2008] INSC 1760 (17 October 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1626 OF 2008
ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 48 OF 2008 ISHWAR SINGH ...
APPELLANT VERSUS
C.K. THAKKER, J.
1.
Leave
granted.
2.
The
present appeal is directed against the judgment and order of conviction and
sentence recorded by the First Additional Sessions Judge, Ujjain, Madhya
Pradesh on December 2, 1994 in Sessions Trial No.258 of 1993 and confirmed by
the High Court of Madhya Pradesh (Indore Bench) on September 11, 2007 in
Criminal Appeal No.817 of 1994.
3.
The
case of the prosecution was that on March 3, 1993 between 7.00 and 8.00 a.m.,
P- 4 Devi Singh was attacked by four persons, Ishwar Singh, Laxman Singh, Dule
Singh and Ganpat Singh, accused Nos.1 to 4 respectively.
All the accused were,
therefore, charged for commission of offences punishable under Section 307 read
with Section 34, Indian Penal Code, 1860 (IPC). After usual investigation, the
matter was committed to the Court of Session in view of charge under Section
307, IPC which was exclusively triable by a Court of Session.
4.
The
learned Judge, vide his Judgment and Order dated December 2, 1994, held that
the 3 prosecution was successful in partly establishing the case. On the basis
of evidence of prosecution witnesses, the trial Court held that it would be
appropriate to give benefit of doubt to accused Nos.2 to 4 and accordingly, the
trial Court acquitted three accused. Regarding accused No.1 Ishwar Singh
(appellant herein), the Court ruled that it was proved `beyond reasonable
doubt' that he had attacked victim Devi Singh and had administered knife blows
on the person of the injured.
Accordingly, the
Court convicted appellant- accused No.1 for an offence punishable under Section
307, IPC.
5.
Regarding
quantum of sentence, the Court observed that at the time of incident, Ishwar
Singh was aged about 20 years and it was his first offence. Considering those
factors, the trial Court ordered him to suffer rigorous imprisonment for three
years and to pay a fine of Rs.1,000/-, in default, to undergo imprisonment for
six months more.
6.
The
order of conviction and sentence was challenged by accused No.1-appellant
herein by filing Criminal Appeal No.817 of 1994. The High Court of Madhya
Pradesh (Indore Bench) again considered the evidence on record and the findings
recorded by the trial Court and held that no error either of fact or of law had
been committed by the trial Court and the order of conviction recorded by the
High Court was in consonance with law. Regarding sentence also, the High Court
held that it could not be said that the sentence awarded on the appellant was
excessive or harsh. Accordingly, the appeal was dismissed. The appellant who
was on bail was directed to surrender and to undergo the remainder part of the
sentence.
7.
The
said order is challenged in the present appeal. On January 15, 2008, notice was
issued by this Court. On August 13, 2008, at the oral prayer of learned counsel
for the appellant, injured Devi Singh was ordered to be joined as party
respondent No.2 and notice was 5 issued to him by making it returnable within
two weeks. The notice was served and the injured appeared through a lawyer.
8.
We
have heard learned counsel for the parties.
9.
The
learned counsel for the appellant stated that during the pendency of the
proceedings before this Court, mutual compromise has been arrived between the
parties, i.e. accused-Ishwar Singh on the one hand and the complainant-victim
Devi Singh on the other hand.
10.
An
affidavit is also filed by the appellant-accused No.1 in this Court. In
paragraph 3, it is sated;
"The accused
petitioner and the complainant Devi Singh are members of the same community and
reside permanently in the same village and are also related to each other. Now
the relations between the accused and the complainant and their families are
cordial and there is no surviving dispute of any kind between the parties.
Father of the accused, Shankarlalji is uncle of the complainant. He is very old
and due to old age he needs to be looked after by 6 his son i.e. accused
Ishwar Singh. If Ishwar Singh is released from jail in view of the cordial
relations between the parties, both the families would be able to live together
peacefully without any ill will".
11.
It
was, therefore, jointly prayed on behalf of the parties that the appellant may
be released by treating the sentence already undergone by the appellant-accused
as sufficient.
12.
An
affidavit is also filed by victim Devi Singh wherein he has stated that he is
the complainant-injured. It is stated that the contents in the affidavit filed
by appellant accused regarding compromise between accused No.1 and the
complainant are true. A prayer was made by the learned counsel for the parties
to dispose of appeal on the basis of compromise between the parties.
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 7 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 the parties for the purpose of reduction
of sentence.
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
8 offence not compoundable under the Code ignoring and keeping aside statutory
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 relevant
circumstance which, the Court may keep in mind.
16.
In
the instant case, the incident took place before more than fifteen years; the
parties are residing in one and the same village and they are also relatives.
The appellant was about 20 years of age at the time of commission of crime. It
was his first offence. After conviction, the petitioner was taken into custody.
During the pendency of appeal before the High Court, he was enlarged on bail
but, after the decision of the High Court, he again surrendered and is in jail
at present. Though he had applied for bail, the prayer was not granted and he
is not released on bail. Considering the totality of facts and circumstances,
in our opinion, ends of justice would be met if the sentence of imprisonment
awarded to the appellant (Accused No.1) is reduced to the period already
undergone.
17.
For
the foregoing reasons, the appeal deserves to be partly allowed and accordingly
allowed by maintaining the conviction recorded by the trial court and confirmed
by the Appellate Court but by reducing the sentence already undergone by the
appellant. The sentence of payment of fine is not disturbed.
If the appellant has
not paid the amount of fine, he will pay such amount within four weeks from
today.
18.
Ordered
accordingly.
.............................................J.
(C.K. THAKKER)
...................................................J.(D.
K. JAIN)
New
Delhi
October
17, 2008.
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