IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1222 OF 2001 (OLD NO.1600 OF 1990) Ameer S/o Wali Mohammad & three others ……… Appellants Versus State of U.P. ……… Respondent Dated: September 29, 2008 Sri Sanjeev Sah, learned amicus curiae for appellant nos.1 & 4 Sri M.K. Aggarwal, learned counsel for appellant nos.2 & 3 Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellants 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 17.08.1990 passed by IV Additional Sessions Judge, Nainital in Sessions Trial No.209/1989, State Vs. Ameer & others, whereby the learned IV Additional Sessions Judge convicted the accused/appellants Ameer and Jamil for the offence punishable u/s 148 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced to one year’s rigorous imprisonment. These accused/appellants are further convicted u/s 307 r/w Section 149 I.P.C. and sentenced to four years’ R.I. The accused/appellants Jaheer and Sharafat were convicted u/s 147 I.P.C. and sentenced to six months’ R.I. and further convicted u/s 307 I.P.C. r/w Section 149 I.P.C. and sentenced to four years’ R.I. It was also directed that both the sentences of each of the accused/appellants shall run concurrently. 2. I have heard Sri Sanjeev Kumar Sah, learned amicus curiae for appellant nos.1 & 4, Sri M.K. Aggarwal, learned counsel for appellant nos.2 & 3 and Sri M.A. 2 Khan, learned brief holder for the State and perused the entire material available on record. 3. The prosecution case, in brief, is that in the intervening night of 29/30.04.1989 at about 12 O’ Clock, when P.W.1 Nabbu Miyan (victim) was coming side by side the railway line from the house of his maternal uncle by bicycle, then accused/appellants Ameer, Jamil, Jaheer and one another person reached there on the bicycle having woods on it. Ameer collided his bicycle with his bicycle, then he asked Ameer whether he has become blind. On that Ameer started abusing Nabbu Miyan. After hearing the noise, Shams Ahmed, Wali Ahmed, Naushad Khan, Chota, Munna, Hafeez Khan and so many other persons reached on the place of occurrence. On this Jaheer and one another person asked Ameer and Jamil to kill him. Then Ameer and Jamil fired on him due to which he received injuries. Thereafter, the accused/appellants run away from the spot leaving their bicycles and woods there but one appellant/accused Sharafat was caught by the person present there. With the same averments, First Information Report, i.e., Ext.Ka.1 was lodged by P.W.1 Nabbu Miyan (victim) at Police Station Haldwani. On the basis of this F.I.R., Head Constable Raj Pal Singh prepared the Chik F.I.R., i.e., Ext.Ka.7. The necessary entry was also made in the G.D., the carbon copy of the G.D. is Ext.Ka.8. Injured Nabbu Miyan was medically examined on 30.4.1989 at 12:50 a.m. by P.W.5 Dr. N.S. Kanyal, Medical Officer, who prepared the injury report, i.e., Ext.Ka.5. The investigation of this case was entrusted to P.W.6 Sub Inspector, Babu Ram Yadav, who during the course of the investigation prepared the site- plan of the place of occurrence, i.e., Ext.Ka.9 and also recorded the statements of the witnesses. After 3 completing the investigation, he filed charge sheet i.e. Ext.Ka.10 against the accused/appellants. 4. Learned Chief Judicial Magistrate, Nainital committed the case to the Court of Sessions on 10.07.1989, after giving necessary copies to the accused/appellants as required u/s 207 Cr.P.C. 5. Learned Sessions Judge transferred the case to IV Additional Sessions Judge, Nainital for disposal according to law. 6. Learned IV Additional Sessions Judge, Nainital on 5.10.1989 framed the charge against the accused/appellants u/s 147 and 307 r/w Section 149 I.P.C. and Section 26 of the Indian Forest Act, 1927. The charge was read over and explained to each of the accused/appellants, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Nabbu Miyan (victim of the case), P.W.2 Shams Ahmed, eye witness of the case, P.W.3 Munna (declared hostile), P.W.4 Naushad Khan (declared hostile), P.W.5 Dr. N.S. Kanyal, who has medically examined the victim, Nabbu Miyan, P.W.6 Babu Ram Yadav, Investigation Officer of the case. 7. After that the statements of each of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of them in question form, who have denied the allegations made against each of them. However in defence, they did not produce any oral or documentary evidence. 4 8. After hearing learned counsel for the parties and appreciating the entire evidence available on record, learned IV Additional Sessions Judge vide his judgment and order dated 17.08.1990 convicted and sentenced the accused/appellants as above. Feeling aggrieved by the said judgment and order, the accused/appellants have preferred the present appeal. 9. Before further discussion, it is pertinent to mention the injuries found on the body of the victim Nabbu Miyan, who was medically examined on 30.04.1989 at 12:50 a.m. by P.W.5 Dr. N.S. Kanyal. The injuries found on the body of the victim is reproduced as under:- (i) Gun Shot wound outlet 4cm x 2cm x depth could not be ascertained not probed. On left side neck just near left stern clavicular joint and margin are irregular. Blackening present around the wound. Bleeding present from the wound. Opinion - Injury kept under observation Advised X-ray Chest PA view Weapon fire arm Duration fresh Surgeon called urgent Police information send 10. To prove this injury report, the prosecution examined P.W.5 Dr. N.S. Kanyal, who has proved above injuries and has stated that these injuries could be possible in the intervening night of 29/30.04.1989 at about 12 O’ Clock. He has also proved the injury report, i.e., Ext.Ka.5. He has further stated that on the same day, Sharafat Hussain (appellant/accused) was also medically examined by him at 4 a.m. and he found the 5 following injuries on his body, which is reproduced as under:- (i) Lacerated wound 5cm x 0.5cm x Scalp deep left side of scalp, margin was irregular, bleeding was oozing out (ii) Contusion 6cm x 4cm on the left shoulder joint (iii) Abrated contusion 2cm x 1cm on left side hand (iv) Traumatic swelling 8cm x 5cm on the left hip (v) Lacerated wound 4cm x 1.5cm x muscle deep on left hip. He has further stated that all the injuries were simple and could be caused on 30.04.1989 at about 12 O’ Clock in the night. He has further proved the injury report, i.e., Ext.Ka.6. 11. To further prove its case, the prosecution examined P.W.1 Nabbu Miyan (victim of the case), who has stated that Ameer, Jamil, Jaheer and Sharafat were known to him. He has further stated that on the date of the incident at about 12 O’ Clock in the night, he was coming from his maternal uncle’s house by bicycle through the railway line. The accused/appellants Ameer, Jamil, Jaheer and Sharafat was coming from the side of Gola River having stolen woods on their bicycles. Then the bicycle of Ameer collided with his bicycle. On this, he said to Ameer whether he has become blind. Then, on this Ameer abused him and started threatening him. After hearing the noise, Shams Ahmed, Naushad, Wali Ahmed, Chota, Munna and Hafeej Khan and so many other persons reached at the spot. On the instigation of Jaheer and Sharafat, Jamil and Ameer fired on him, due to which he received injuries. Thereafter, the accused/appellants run away from the place of occurrence leaving their bicycles and woods there but one appellant/accused Sharafat was caught by the 6 person present on the spot. He (Nabbu Miyan) was taken to the hospital in the injured condition. The First Information Report of the said incident was lodged by him, that F.I.R. is Ext.Ka.1. His blood stained clothes were also taken by the police. 12. P.W.2 is Shams Ahmed (eye witness of the case), has also corroborated the evidence of P.W.1 Nabbu Miyan. 13. P.W.3 is Munna, who has not supported the prosecution case and declared hostile. 14. P.W.4 is Naushad Khan, who has also not supported the prosecution case and declared hostile. 15. P.W.6 is Babu Ram Yadav, Investigating Officer of the case, who has stated that on 30.4.1989, he was posted as Sub Inspector in Police Station Haldwani. Chik F.I.R., i.e., Ext.Ka.7 was prepared by Head Moharrir Raj Pal Singh. The entry was also made in the G.D., a carbon copy of G.D. is Ext.Ka.8. The investigation of this case was entrusted to him, who during the course of the investigation, recorded the statement of the witnesses and took the blood stained clothes of the injured and prepared the Fard, i.e., Ext.Ka.2. He has also taken the bicycles in his possession and prepared the Fard, i.e., Ext.Ka.3. and the blood stained pieces of the stones and prepared a Fard, i.e., Ext.Ka.4. He also inspected the place of occurrence and prepared the site-plan, i.e., Ext.Ka.9. After completing the investigation, he filed the charge sheet, i.e., Ext.Ka.10 against the accused/appellants. 16. After that the statements of each of the accused/appellants were recorded u/s 313 Cr.P.C. The 7 oral and documentary evidence was put to each of them in question form who have denied the allegations made against each of them. In defence, they have not produced any oral or documentary evidence. 17. Learned counsel for the accused/appellants has argued that against the accused/appellants Ameer and Jamil, no case of the offence punishable u/s 148 and 307 r/w Section 149 I.P.C. is made out and against the accused/appellants Jaheer and Sharafat, no case of the offence punishable u/s 147 and 307 r/w Section 149 I.P.C. is made out. Instead of the above said offence, he submitted that the only offence u/s 324 r/w Section 34 I.P.C. can be said to have been made against the accused/appellants. I find substance in the argument advanced by learned counsel for the accused/appellants, as there is only a participation of four accused in the said crime and Nabbu Miyan (injured) has stated in his statement that on the instigation of Jaheer and Sharafat, Ameer and Jamil fired on him. No other person was shown to be participated in the said crime, as it has come in the statement of P.W.1 Nabbu Miyan. Hence, the offence u/s 147 and 149 I.P.C. is not proved against the accused/appellants. There is no evidence that the accused/appellants has caused injuries to the victim Nabbu Miyan with the intention or knowledge to kill him and even there is no injury of such nature which is grievous or dangerous to life. Also there is no opinion of P.W.5 Medical Officer that the injuries are dangerous to life or grievous in nature. Hence, after considering all the facts and circumstances and the entire evidence available on record and the nature of the injuries, the case u/s 324 r/w Section 34 I.P.C. is made out against each of the accused/appellants and they are liable to be convicted for the same. The offence u/s 324 r/w 34 I.P.C. is proved 8 by the prosecution beyond reasonable doubt against each of the accused/appellants. 18. Learned counsel for the complainant and the accused/appellants have moved an application No.789/08 seeking permission for filing the compromise and both the parties have moved a compromise application No.803/08 supported by the respective affidavits and signed by the complainant Nabbu Miyan and the each of the accused/appellants. Complainant Nabbu Miyan is identified by Sri Chetan Joshi, Advocate and the accused/appellants are identified by their respective counsel, Sri M.K. Aggarwal, learned counsel for appellant nos.2 & 3 and Sri Sanjeev Kumar Sah, learned amicus curiae for appellant nos.1 & 4. Learned counsel for both the parties have submitted that the parties have entered into a compromise and now no grudge is remained pertaining to the same dispute. 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, 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. 19. The judgment and order dated 17.08.1990 passed by IV Additional Sessions Judge, Nainital in Sessions Trial No.209/1989, State Vs. Ameer & others for convicting the accused/appellants Ameer and Jamil u/s 148 and 307 r/w Section 149 I.P.C. and for convicting the accused/appellants Jaheer and Sharafat u/s 147 and 307 r/w Section 149, is set aside and in place of this, each of the accused/appellants is convicted 9 u/s 324 r/w Section 34 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, each of the accused/appellants is hereby acquitted of the charge punishable u/s 324 r/w Section 34 I.P.C. and accordingly the appeal is disposed of. 20. For the reasons recorded above, the appeal is disposed of. 21. Let a copy of this judgment along with the record of the trial court be sent back to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) 29.09.2008 RG