HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.255 of 2004 Anwar Khan S/o Abdulla Khan .……….. Appellant Versus State of Uttarakhand ..…….. Respondent Dated: July 29, 2009 Sri A.S. Gill and Sri Milind Raj, Advocates for the appellant Sri M.A. Khan, Brief Holder for the State Sri Deep Chand Joshi, Advocate for the complainant Hon’ble Dharam Veer, J. This appeal, preferred by the appellant u/s 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 6.8.2004 passed by Sessions Judge, Champawat in S.T. No.18/2003, State Vs. Anwar Khan, whereby the learned Sessions Judge convicted the accused/appellant u/s 307 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to undergo seven years’ R.I. with a fine of Rs.10,000/-. In default of payment of fine, further one year’s simple imprisonment was awarded. 2. I have heard Mr. A.S. Gill and Mr. Milind Raj, Advocates for the appellant, Mr. M.A. Khan, Brief Holder for the State as well as Mr. Deep Chand Joshi, Advocate for the complainant. Perused the entire material available on record. 3. In brief, the prosecution case is that on 13.8.2003 Ravindra Lal (PW1) lodged the F.I.R. at P.S. Tanakpur (Champawat) stating therein that his brother Bhupendra Lal and sister-in-law (BABHI) were feeding 2 grains to hens in front of their house then in the state of intoxication, the accused/appellant Anwar Khan started abusing them. They asked the accused/appellant not to abuse them and pushed him from there. After some time at 06:10 PM the accused/appellant armed with PANJI came there and caused injuries to his sister-in-law Sudha Lal with it. She was taken to Tanakpur Hospital. There doctors referred her to Khatima. With the aforesaid averments, First Information Report was lodged by Ravindra Lal at Police Station, Tanakpur on 13.8.2003 at 07:15 PM. That FIR is Ext.Ka-1. On the basis of this FIR, Chik FIR (Ext.Ka-5) was prepared by Head Mohirror Gopal Ram. Necessary entries were also made in the G.D., carbon copy of which is Ext.Ka- 6. The investigation of this case was entrusted to Station Officer Sri C.S. Yadav. On the same day i.e. on 13.8.2003 at 10:30 PM, PW7 Dr. S.S. Dugtal, Medical Officer medically examined the injured Sudha Lal and prepared the injury report, which is Ext.Ka-3. Supplementary report was also prepared by him, which is Ext.Ka-4. The I.O., during the course of investigation, recorded the statements of the witnesses and prepared the site-plan of the place of occurrence i.e. Ext.Ka-9. The I.O. also took into his possession blood stained Panji and the FARD thereof was prepared i.e. Ext.Ka-2. On completion of the investigation, the I.O. submitted the charge sheet against the accused/appellant. That charge sheet is Ext.Ka-10. 4. On receipt of charge sheet, learned Chief Judicial Magistrate, Champawat, committed the case to the court of Sessions on 9.10.2003, after giving necessary copies to the accused/appellant as provided u/s 207 Cr.P.C. 5. On 5.11.2003, learned Sessions Judge, Champawat framed the charge of offence punishable u/s 3 307 IPC against the accused/appellant. The charge was read over and explained to the accused/appellant to which he pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution examined PW1 Ravindra Lal, eyewitness and complainant of the case; PW2 Smt. Sudha Lal, injured eyewitness; PW3 Bhupendra Lal, eyewitness; PW4 Smt. Mona Lal, eyewitness; PW5 Dr. S.M. Sharma, who conducted the X-ray of the injured; PW6 Dr. P.C. Phuloria, who operated the injured; PW7 Dr. S.S. Dugtal, who medically examined the injured Smt. Sudha Lal; PW8 Rajendra Bhandari, scriber of the first information report; PW9 Station Officer C.S. Yadav, Investigating Officer of the case and PW10 H.C. Gopal Ram. 7. Thereafter the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. He did not file any documentary evidence in his defence but in oral evidence DW1 Smt. Susheela was examined. 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Session Judge, Champawat vide his judgment and order dated 6.8.2004 convicted and sentenced the accused/appellant as stated above. Against the said judgment and order, the accused/appellant preferred the present appeal. 9. Further to prove its case, the prosecution examined PW1 Ravindra Lal, who reiterated the story as set out in the first information report. PW2 Smt. Sudha Lal, PW3 Bhupendra Lal and PW4 Smt. Mona Lal have corroborated the statements of PW1 Ravindra Lal. 4 10. PW5 is Dr. S.M. Sharma, Radiologist who conducted the X-ray of the injured Smt. Sudha Lal on 14.8.2003. PW6 is Dr. P.C. Phuloria, who operated the injured Sudha Lal. PW7 Dr. S.S. Dugtal, Medical Officer medically examined the injured Sudha Lal on 13.8.2003 and prepared the injury report (Ext.Ka-3). Supplementary report of the injured was also prepared by him, which is Ext.Ka-4. PW8 Rajendra Bhandari is the scriber of the report Ext.Ka-1. PW9 C.S. Yadav, S.O. is the Investigating Officer of the case, who after completing the investigation submitted the charge sheet (Ext.Ka-10) against the accused/appellant. PW10 is Head Constable Gopal Ram, who prepared the Chik FIR (Ext.Ka-5) and made necessary entries in the G.D., carbon copy of that G.D. is Ext.Ka-6. 11. Thereafter the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him. He did not file any documentary evidence in his defence but in oral evidence DW1 Smt. Susheela was examined. 12. Learned counsel for the accused/appellant argued that on the basis of the evidence discussed above, only the case u/s 325 IPC is made out against the accused/appellant and the trial court has wrongly convicted and sentenced the accused/appellant u/s 307 IPC. I find substance in the argument advanced by learned counsel for the accused/appellant. As per the evidence, the accused/appellant Anwar Khan did not cause injuries to Sudha Lal (injured) with the intention or knowledge to cause her death. Even the injuries caused to Shudha Lal were caused by Panji which is not a dangerous weapon. There is no specific evidence that the weapon Panji used in 5 the said crime is a dangerous weapon. Thus, the prosecution has not been able to prove the case beyond reasonable doubt against the accused/appellant u/s 307 IPC, however, the case u/s 325 IPC is successfully proved against the accused/appellant. 13. At this juncture, injured Sudha Lal and the accused/appellant Anwar Khan have moved Compounding Application bearing No.620/2009 seeking permission for filing compromise and both the parties have moved a Compromise Application bearing No.621/2009, which are supported by the respective affidavits. Accused/appellant Anwar Khan has been identified by Sri A.S. Gill and Sri Milind Raj, Advocates and Smt. Sudha Lal (injured) has been identified by Sri Deep Chand Joshi. Learned counsel for both the parties submitted that the incident is about six years’ old and the parties have entered into a compromise outside the Court and now no grudge is remained pertaining to the same dispute. According to the compromise, the parties are residing in the same locality from last so many years and they have got no problem or inimical terms. It is submitted that the appeal may be decided in terms of the compromise arrived at in between the parties. After considering all the facts and peculiar circumstances of the case that the injured and the accused/appellant are residing in the same locality, it is expedient in the interest of justice to allow the application seeking permission to file compromise and the case may be decided in terms of the compromise arrived at in between the parties. Thus the application seeking permission to file compromise is allowed. Accordingly the compromise is accepted. 6 14. The judgment and order dated 6.8.2004 passed by Sessions Judge, Champawat in S.T. No.18/2003, State Vs. Anwar Khan, is set aside. Consequently, the conviction u/s 307 IPC and sentence of seven years’ R.I. and fine of Rs.10,000/-, is also set aside instead the accused/appellant is convicted u/s 325 I.P.C. As the parties have entered into the compromise and the compromise filed by the parties is accepted, so on the basis of this, the accused/appellant Anwar Khan is hereby acquitted of the charge punishable u/s 325 I.P.C. 15. For the reasons recorded above, the appeal is disposed of. 16. Let the record of the case be sent back immediately to the trial court concerned for compliance of the order. (Dharam Veer, J.) 29.07.2009 RG