REPORTABLE
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
STATE OF MADHYA PRADESH... RESPONDENT
J U D G M E N T
C.K. THAKKER, J.
1. Leave granted.
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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
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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.
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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
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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
6his 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
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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
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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
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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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