IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL COMPOUNDING APPLICATION NO.1100/2010 IN CRIMINAL APPEAL NO.1563 OF 2001 (OLD NO.1833 of 1998) Ram Nath & others ……… Appellants Versus The State ……… Respondent Dated: October 19, 2010 Sri Rakesh Kumar Joshi, Advocate for the appellants/applicants Sri Amit Bhatt, Additional G.A. for the State Sri MS Pal, Sr. Adv. for the complainant HON’BLE DHARAM VEER, J. This criminal appeal, preferred under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as ‘Cr.P.C.’), is directed against the judgment and order dated 22.8.1998 passed by the Additional Sessions Judge Nainital in ST No.544/96, State Vs. Ramnath & others, thereby convicting and sentencing the appellants/accused Ramnath, Sukhi Singh, Balbir Singh, Madan Singh, Kripal Singh, Bhole, Jagdev, Prem Singh, Radhey Shyam and Jagdish u/s 147 IPC to undergo six months’ R.I.; u/s 323/149 IPC to undergo three months’ R.I. for causing simple injuries to PW1 and to undergo further three months’ R.I. u/s 323/149 IPC for causing simple injuries to PW2. Appellant/accused Kripal Singh was further convicted and sentenced to undergo R.I. for two years u/s 392 IPC. All the sentences of each of the accused/ appellants were directed to run concurrently. However, all the appellants/accused were acquitted of the charges u/s 395/397 and 307/149 IPC. Heard learned counsel for the parties and perused the entire material available on record. In brief, the prosecution case is that complainant Kunwar Singh had sown wheat crop in his plot, regarding which civil court was pending in the civil court. On 29.4.1990 at 4 PM, when the complainant along with his son Kunwar Singh (PW1), PW2 Rekha and Suraj Bhan Singh, 2 Surendra Singh and Sudhilar Devi had gone in his plot, he saw that the accused/appellants Ramnath, Sukhi Singh, Balbir Singh, Madan Singh, Kripal Singh, Bhole, Jagdev, Prem Singh, Radhey Shyam and Jagdish came there and started beating the complainant and his relatives, as a result of which PW1 Kunwar Singh and his wife PW2 Rekha Devi sustained injuries. It was also stated that the appellant/accused Kripal Singh also snatched the licensed gun belonging to Kunwar Singh. With the same averments, the FIR Ex.Ka-1 was lodged on 30.4.1990. CHIK FIR was prepared on 30.4.1990 at 11:25 AM, i.e. Ex.Ka-5. Entry was also made in the GD, carbon copy whereof is Ex.Ka-9. Injured Kunwar Singh was examined on 30.4.1990 at 1:30 AM while his wife injured Smt. Rekha Devi was also examined on the same day at 2:20 AM, and after their examination, injury reports Ex.Ka-3 and Ka-4 respectively were prepared, the genuineness of which was admitted by the defence counsel. During investigation the I.O. recorded the statements of the witnesses, inspected the place of occurrence and prepared the site plan Ex.Ka-7 and after completing the investigation, he filed the charge sheet Ex.Ka-6. After that the case was committed to the court of sessions on 28.9.1996 by J.M. Khatima. On 13.10.97, charge was framed against the appellants/accused u/s 147/395/397/307/149 IPC, which was read over and explained to them, to which they pleaded not guilty and claimed to be tried. To prove its case the prosecution has examined PW1 Kunwar Singh and PW2 Smt. Rekha Devi. Thereafter the statements of the witnesses was recorded u/s 313 Cr.P.C. After appreciating the material on record, learned trial court vide judgment and order dated 22.8.98 convicted and sentenced the appellants/accused as above discussed. Hence this appeal. Learned counsel for the appellants/accused argued that now the parties have entered into a compromise and there is now no dispute and they are living peacefully. In this regard, a compounding application no.1100 of 2010 has also been filed. Even the injured persons have also signed on the order sheet in this regard. As such, on the basis of this 3 compounding application, the same is allowed with respect to the offence punishable u/s 323 IPC is concerned and on the basis of this compromise, the appellants/accused are acquitted for the offence punishable u/s 323 IPC. It was next argued on behalf of the appellants that the offence u/s 392 IPC against the appellant/accused Kripal Singh is not made out. I find force in this argument. Since the appellant/accused Kripal Singh, who has lodged the cross-FIR for the same incident, has deposited the said gun in the police station on 30.4.1990 at 2 AM and for which the entry was also made in the G.D. and even it was also stated in the cross- FIR that during scuffle, he received the gun of Kunwar Singh and later he produced the same in the police station, hence this conduct of the accused Kripal Singh shows that he had not robbed the gun. Virtually, he received the gun in a scuffle and without misusing the same; he submitted the said gun in the police station. Hence, on the basis of the above said facts and circumstances of the case that the said gun was not actually robbed by him and during scuffle the gun had come in his hands, which he immediately deposited the same in the police station, which clearly reveals that the ingredients of the Robbery, as defined under Section 390 IPC, are not made out on the basis of the facts and circumstances of the case and the offence u/s 392 IPC is not made out against the appellant/accused Kripal Singh beyond reasonable doubt and he is liable to be extended the benefit of doubt. It was next argued for the appellants that there is no unlawful assembly collected on the place of occurrence and the ingredients of the unlawful assembly and Rioting are absent. I find force in this argument. On a careful perusal of the evidence, it reveals from the facts and circumstances of the case that the appellants/accused had not gathered there for the purpose of committing any crime or for any unlawful purposes for committing the offence or for committing any Rioting and whatever the offence was committed, that was on the sudden provocation and that was up to only Section 323 IPC, however that offence has been compounded between the parties. As such, the 4 offences punishable u/s 147 and 149 IPC are not made out against the appellants/ accused and they are also liable to be extended the benefit. For the reasons as recorded above, all the appellants/ accused are acquitted for the offences punishable u/s 323 IPC in view of the compromise arrived at in between the parties. All the appellants/accused are also acquitted for the offences punishable u/s 147/149 IPC. The appellant/accused Kripal Singh is also acquitted for the offence punishable u/s 392 IPC. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. The appeal is disposed of accordingly. Let a copy of this order along with the lower court record be sent back. (Dharam Veer, J.) October 19, 2010 Rdang