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.

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

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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

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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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