Neknarayan and others vs State of Madhya Pradesh

Appellants have filed this appeal against the judgment

dated 03.12.1998 passed in Sessions Trial No.78/1995. The

trial Court found the appellants guilty for commission of

offences punishable under Sections 302 and 307 read with

Sections 147, 148, 149 of Indian Penal Code (hereinafter

referred as ''the IPC '') and awarded a sentence of life and

seven years with fine amount.

Accused Govind Singh, Neknarayan and others were

engaged in the business of money lending. They used to

advance loan on higher interest rates. There was a dispute

between Bhagwan Singh and Neknarayan. Bhagwan Singh

had to pay an amount of Rs. 70,000/- to Neknarayan.

On 27.06.1991, Ramsingh, Kali Bai, Hajju @ Hazrat

and other persons came to Vikrampur Railway Station to

board a train. At that time, appellants Govind Singh,

Niranjan Singh, Girwar Singh and Neknarayan armed with

guns, Rishiraj armed with lathi and Battulal armed with farsa

came on the spot. They had abused Ramsingh. Govind Singh

inflicted blow of lathi on Ramsingh. After hearing cry,

family members of Ramsingh, wife of Leeladhar, Saraswati

Bai and other persons reached on the spot. Rishiraj had

inflicted lathi blows to Kali Bai and Mooratsingh,

Udalsingh, Sardar Singh, Bhagwan Singh tried to save her.

However, Neknarayan, Govind Singh, Niranjan Singh and

Girwar Singh had opened fire at the complainant party. In

the incident, Kali Bai died on the spot after one hour. Hajju

@ Hazrat, Ramsingh, Saraswati Bai, Udal Singh, Tofan

Singh, Pannalal, Leeladhar and Mooratsingh received gun

shot injuries. The incident was reported to G.R.P.,

Gadarwada. The report was lodged at the Police Station and

injured persons had been taken to District Hospital,

Narsinghpur. The doctor (PW-2) performed postmortem of

deceased Kali Bai.

After investigation, police filed charge-sheet against

the appellants and co-accused Rishiraj. Initially, the

appellants were absconding, hence, the trial Court proceeded

against co-accused Rishiraj. He was acquitted. Subsequently,

the appellants were arrested. They abjured their guilt. The

trial Court, after completion of trial, held the appellants

guilty for commission of offences mentioned above in the

judgment and awarded sentence.

Learned counsel for the appellants has contended that

the trial Court has committed an error in holding the

appellants guilty for commission of offence punishable

under Section 302 of IPC. For the aforesaid offence, co-

accused Rishiraj was tried separately and he was acquitted

by the trial Court. It is further submitted by the learned

counsel that there is no evidence against the appellants to

convict them in other offences. Apart from this, the learned

counsel further submitted that the appellants and

complainants moved an application for compromise for an

offence punishable under Section 307 of IPC and looking to

the period of sentence already undergone by the appellants

which is near about 2-3 years, the sentence of the appellants

be modified to already undergone if this Court held the

appellants guilty for commission of offence punishable

under Section 307 of the IPC.

Learned counsel appearing on behalf of the State has

submitted that there is enough evidence that the appellants

had formed an unlawful assembly and the object of forming

of unlawful assembly was to kill the complainants. Kali Bai

died in the incident. Hence, the trial Court has rightly held

the appellants guilty and awarded appropriate sentence.

PW-6 Leeladhar is an injured eye witness. PW-7

Ramsingh and PW-14 Mooratsingh are also eye witnesses.

PW-8 Madan Gopal, PW-9 Saraswati Bai, PW-12 Chhotelal,

PW-18 Sardar Singh, PW-19 Pannalal, PW-20 Bhagwan

Singh turned hostile. PW-21 B.R. Gujar is the investigating

officer.

PW-6 Leeladhar deposed that he was taking tea on

the shop of Lachhman Veeran, at that time, Neknarayan,

Govindsingh, Niranjan Singh, Girwar Singh, Rishiraj and

Battu Dhobi came there. They had inquired about Bhagwan

Singh and said that they had to recover Rs. 70,000/- from

Bhagwan Singh because he had taken loan from them. At

that time, they had beaten Ramsingh, who is the father of

Bhagwan Singh, by lathi, farsa and gun. Neknarayan was

armed with gun. Govind Singh, Niranjan Singh, Girwar

Singh were also armed with gun. Rishiraj was armed with

lathi. Battulal was armed with farsa. After seeing ''marpeet''

with Ramsingh, I had called other members of the family

and then all the members of the family i.e. Kallu @ Tofan

Singh, Udalsingh, Bhagwan Singh, Kali Bai my wife, my

daughter Saraswati Bai, my son Pannalal and my nephew

Mooratsingh came on the spot. Neknarayan had fired a gun

shot and Kali Bai received injury. Thereafter, Rishiraj had

inflicted a lathi blow on Kali Bai. My dauther Saraswati Bai

was also beaten by gun and I had also received pallets of

gun on the body and also blow of lathi. Saraswati Bai also

received pallets injuries. Girwar Singh had fired at Pannalal,

who also received pallets injuries. Niranjan Singh had fired

at Mooratsingh and he also received pallets injuries.

Bhagwan Singh was hiding at the station. Thereafter, all the

accused persons had fled away. Due to the injuries, Kali Bai

fell down on the spot. She was died after a period of one

hour. She received a blow of lathi which was given by

Rishiraj. Same facts have been deposed by PW-7 Ramsingh

and PW-14 Mooratsingh. PW-14 specifically deposed that

Rishiraj had inflicted a lathi blow on the head of Kali Bai

and other persons fired gun shots. Same facts have been

deposed by the other eye witnesses.

PW-2 Dr. Deepak Tignath, who performed postmortem

of deceased Kali Bai deposed that on 27.06.1991 he was

posted at Government Hospital, Narsinghpur as Assistant

Surgeon. He performed postmortem of deceased Kali Bai.

He noticed one lacerated wound 8 CM x 1 CM bone deep

on the right parietal region of the head of Kali Bai. Parietal

bone was fractured. She died due to aforesaid injury. He

specifically deposed in para 3 that there was only one injury

on the head of the deceased Kali Bai.

From the aforesaid evidence, it is clear that the

deceased Kali Bai received one injury and it was lacerated

wound. All the witnesses deposed that Rishiraj was armed

with lathi and he had inflicted lathi blow on the head of

deceased Kali Bai. The present appellants were not armed

with lathi. All the appellants are said to be armed with guns

except appellant No.3 Battulal, who is said to be armed with

farsa. Hence, if the prosecution evidence is accepted then it

cannot be held that the present appellants had committed

murder of deceased Kali Bai. The allegation of inflicting

lathi blow on Kali Bai is against Rishiraj. He was tried

separately in Sessions Trial No.230/1992. The trial Court

vide judgment dated 02.03.1994 acquitted Rishiraj from the

offences punishable under Sections 148, 302, 307 read with

Section 149 and 120-B of IPC. In view of the aforesaid

evidence, the present appellants could not be convicted for

commission of offence punishable under Section 302 of IPC.

The injured witnesses have deposed that they received

pallets injuries. Except appellant No.3 Battulal, the present

appellants were armed with guns. Injured Ramsingh,

Saraswati Bai, Kallu @ Tofan Singh, Pannalal, Leeladhar,

Udalsingh, Mooratsingh and Hajju @ Hazrat received pallets

injuries.

PW-11 Dr. B.M. Agrawal in his evidence deposed that

he was posted as Assistant Surgen at District Hospital,

Narsinghpur on 27.06.1991 and he had examined Hajju @

Hazrat and noticed following injuries on his body:

"VERNACULAR MATTER OMITTED"

PW-15 Dr. D. Kumar in his evidence deposed that on

27.06.1991 he was posted as Assistant Surgeon at District

Hospital, Narsinghpur and he had examined Ramsingh,

Saraswati Bai, Udalsingh, Tofan Singh, Munnalal, Leeladhar

and Mooratsingh and performed their M.L.C. He deposed

that he noticed following injuries :

"VERNACULAR MATTER OMITTED"

In para 29 of his evidence he deposed that the injured

persons received pallet injuries fired by guns.

From the evidence of the eye witnesses and the nature

of the injuries sustained by the injured persons, it is clear

that number of persons received pallet injuries. Some

injuries were on vital parts of the body. Hence, intention of

the appellants was to kill the complainants/injured persons.

The appellants formed an unlawful assembly. Appellant-

Battulal was armed with farsa and he was a member of

unlawful assembly. Hence, in our opinion, the trial Court has

rightly held the appellants guilty for commission of offences

punishable under Sections 307, 147, 148 and 149 of IPC.

Now, the question is that what sentence be awarded

against the appellants-

The appellants and the complainants filed an

application I.A. No. 24750/2016 under Section 320 (1) of

the Code of Criminal Procedure for compromise. It is

mentioned in the application that the relations with the

complainants and the appellants have been improved and

they want to settle the controversy and dispute. Both the

parties have no grievance against each other. The have

developed cordial relationship. The compromise entered

between both the parties is without any fear and favour. In

support of the compromise application, affidavits of the

complainants and the appellants have also been filed.

Complainants Ramsingh and Leeladhar have died.

We have perused the record of the trial Court, which is

an old one, because the trial was conducted in the year 1995.

The case is of the year 1992 and the incident is of dated

27.06.1991. Initially, the appellants were absconding and

subsequently, they were arrested. We cannot find the exact

period of detention of the appellants during trial. However,

from the record, it is evident that the appellants were in jail

for some period. The date of judgment of the trial Court is

03.12.1998. This Court vide order dated 26.04.1999

suspended the sentence of appellant Girwar Singh, the

sentence of appellant-Niranjan Singh was suspended on

07.05.1999, sentence of appellant Neknarayan and Battulal

was suspended on 28.06.1999, the sentence of appellant-

Govind Singh was suspended vide order dated 24.09.2002. If

the period of detention of the appellants during trial be

included, then it appears that the appellants were in jail for

near about one year or more. The matter has been

compromised between the parties.

The Apex Court in the case of Yogendra Yadav and

others vs State of Jharkhand and another, (2014) 9 SCC

653 has quashed criminal proceedings against the accused

persons for the offences punishable under Sections 326 and

307 read with Section 34 of the IPC on the basis of

compromise. The Apex Court has held as under:

"4. Now, the question before this Court is whether this Court can compound the offences under Sections 326 and 307 of the IPC which are non-compoundable- 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 ). 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 Gian Singh this Court has observed that:

"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."

Needless to say that the above observations are applicable to this Court also."

The Apex Court in the case of Narinder Singh and

others vs State of Punjab and another, (2014) 6 SCC 466

has also quashed the criminal proceedings registered under

Section 307 of the IPC on the basis of compromise. The

Court has held as under:

"17. We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment the Court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the Court, particularly in those cases where the crimes committed are heinous in nature or depicts depravity, or lack morality. At times it is to satisfy the element of "emotion" in law and retribution/vengeance becomes the guiding factor. In any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law- These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious namely cases involving heinous crime with element of criminality against the society and not parties inter-se. In such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. Cases of murder, rape, or other sexual offences etc. would clearly fall in this category. After all, justice requires long term vision. On the other hand, there may be, offences falling in the category where "correctional" objective of criminal law would have to be given more weightage in contrast with "deterrence" philosophy. Punishment, whatever else may be, must be fair and conducive to good rather than further evil. If in a particular case the Court is of the opinion that the settlement between the parties would lead to more good; better relations between them; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal. It is a delicate balance between the two inflicting interests which is to be achieved by the Court after examining all these parameters and then deciding as to which course of action it should take in a particular case.

* * * *

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 discernable 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."

In view of the principle of law laid down by the Apex

Court and considering the principle and logic of sentencing, in our opinion, it would be just and proper if the period of

sentence of the appellants be modified as already undergone

because there has been a compromise between the parties.

The case is of the year of 1995 and it is going on for the last

22 years.

Hence, the appeal is partly allowed. The conviction of

the appellants under Section 302 read with Section 147, 148

and 149 of IPC is hereby set aside. The conviction of the

appellants under Section 307 read with Section 147, 148 and

149 of IPC is hereby upheld; however, the sentence awarded

by the trial Court against the appellants is modified to the

extent already undergone. The fine amount imposed by the

trial Court shall remain unchanged. The appellants are on

bail, their bail bonds are hereby canceled.