HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 790 of 2001 (Old No. 1336 of 1991) 1. Karan Pal 2. Mahi Pal Both resident of Village Asaf Nagar, P.S. Manglore, District Haridwar. ------- Accused/appellants Versus The State. ------- Respondent Dated: October 15, 2008 Sri Tapan Singh, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State Sri J.C. Karnatak, learned counsel for the complainant Hon’ble Dharam Veer, J. This appeal preferred 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 15.07.1991 passed by Additional Sessions Judge, Roorkee in Sessions Trial No.480/1989, State Vs. Karan Pal & others, whereby the learned Additional Sessions Judge convicted the accused/appellants, namely, Karan Pal and Mahi Pal for the offence punishable u/s 307 read with Section 34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to undergo rigorous imprisonment for a period of eight years. Further, the accused/appellants were convicted u/s 325 r/w Section 34 I.P.C. and sentenced to three years’ R.I. It was also directed that both the sentences shall run concurrently. However, the co-accused Surendra was acquitted of the charge for the offence punishable u/s 307 r/w Section 34 I.P.C. and Section 325 r/w Section 34 I.P.C. by the trial court. 2 2. I have heard Sri Tapan Singh, learned counsel for the accused/appellant, Sri M.A. Khan, learned brief holder for the State and Sri J.C. Karnatak, learned counsel for the complainant. 3. During the pendency of this appeal, the accused/appellant Karan Pal was reported to be died. Then this Court passed an order on 26.09.2008, directing the Chief Judicial Magistrate, Haridwar to confirm the death of the accused/appellant Karan Pal. In this regard C.J.M., Haridwar submitted a report on 01.10.2008 that the accused/appellant Karan Pal has been died on 11.08.2008. Hence, the appeal preferred by the accused/appellant Karan Pal stood abated. 4. In brief, the prosecution case is that the complainant Tej Pal lodged a F.I.R. at the Police Station Manglore on 29.07.1988 with the averment that his father Devi Ram was coming to his house after completing the duty on the same day, i.e., 29.07.1988 at 5 P.M. Near the Gangnahar Bridge, on the way, at about 6 P.M. accused/appellants Karan Pal, Mahi Pal and Surendra caused injuries to his father Devi Ram. He further averted that the Naresh, Isham and other people saw the said incident. These two people Naresh and Isham informed the complainant about the said incident and on their information, the complainant reached at the place of occurrence. With the same averments, he lodged the F.I.R. at Police Station, Manglore on 29.07.1988 at 7 P.M. That F.I.R. is Ext.Ka-1. On the basis of this F.I.R., Chik F.I.R. was prepared by P.W.5 Head Constable, Bhawar Singh. The necessary entry was also made in the General Diary, carbon copy of which is Ext.Ka-3. The injured was medically examined by P.W.4 Dr. N.D. Arora, Medical 3 Officer on 29.07.1988 at 7:30 P.M., and he prepared the injury report Ext.Ka-2. X-Ray of the injured was conducted by P.W.6 Dr. Ajay Kumar. That X-Ray report is Ext.Ka-4. Investigation of this case was entrusted to P.W.7 Sub Inspector, Raghuveer Singh, who during the course of the investigation took the bloodstained clothes into his possession. He also inspected the place of occurrence and prepared the site-plan, which is Ext.Ka-7. During the course of the investigation, the Investigating Officer recorded the statement of the witnesses and after completing the investigation, he filed the charge sheet, i.e., Ext.Ka-5 against the accused/appellants u/s 307/325 I.P.C. 5. Learned Additional Munsif Magistrate, Roorkee committed the case to the Court of Sessions on 07.08.1989, after giving necessary copies to the accused/appellants as required u/s 207 Cr.P.C. 6. On 07.11.1989, the Learned Additional Sessions Judge, Roorkee framed the charge of offence punishable u/s 307 read with Section 34 I.P.C. and u/s 325 read with Section 34 I.P.C. against the accused/appellants. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Tej Pal Singh-complainant, P.W.2 Isham Singh, P.W.3 Devi Ram-injured eyewitness, P.W.4 Dr. N.D. Arora, Medical Officer, who has medically examined the victim Devi Ram, P.W.5 Head Constable Bhawar Singh, who prepared the Chik F.I.R. and made entries in the G.D., P.W.6 Dr. Ajay Kumar, who prepared the X-Ray report, 4 P.W.7 S.I. Raghuveer Singh, Investigating Officer of this case. 8. 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. 9. After appreciating all the evidence available on record and hearing learned counsel for the parties, the learned Additional Sessions Judge convicted the accused/appellants, namely, Karan Pal and Mahi Pal for the offence punishable u/s 307 read with Section 34 I.P.C. and sentenced each of them to undergo rigorous imprisonment for a period of eight years. Further, the accused/appellants were convicted u/s 325 r/w Section 34 I.P.C. and sentenced to three years’ R.I. It was also directed that both the sentences shall run concurrently. However, the co-accused Surendra was acquitted of the charge for the offence punishable u/s 307 r/w Section 34 I.P.C. and Section 325 r/w Section 34 I.P.C. by the trial court. Aggrieved with the conviction and sentence awarded to them, the accused/appellants have preferred this appeal. 10. Before further discussion, it is pertinent to mention the injuries found on the body of the injured Devi Ram, who was medically examined by Dr. N.D. Arora (Medical Officer) on 29.07.1988 at 7:30 P.M. The injuries found on the body of the injured is reproduced as under:- (i) Lacerated wound 6cm x 3cm x bone deep. Bone is exposed on the right parietal area 9cm away from the right ear. Suspected fracture of skull bone. 5 (ii) Lacerated wound on the scalp 4cm x 2cm on the occipital area 12cm away from right ear. Bleeding. Bone exposed. (iii) Contusion on the chest in supra mammary area starting from sternum going obliquely upto the shoulder joint 18cm x 2cm, 7cm above the right nipple deep bluish reddish colour (iv) Contusion on the chest in the supra mammary area starting from the mid portion of sternum going upto axilla 18cm x 2cm reddish colour (v) Contusion on the chest on the breast area mid part of stern 12cm x 2cm obliquely placed 2.8cm below the right nipple (vi) Contusion on the chest and upper part of abdomen 13cm x 2cm obliquely placed 7cm below the nipple (vii) Contusion on the abdomen right side 11cm x 2cm in right hypogastric area 12cm x 2cm starting with the root of the sternum middle part of abdomen going downward to right iliac fossa, abdomen tense, 4.6 cm above the navel obliquely placed (viii) Contusion on the chest on left side 16cm x 2cm obliquely placed going downward present above the left nipple going obliquely downward below the right nipple (ix) Vomiting of blood with sputum is there (x) Cold sweating present. Blood pressure 90/60. Pulse 100/min. Remarks:- All the injuries are fresh Caused by blunt weapon X-Ray skull and chest advised Patient is in low general condition immediately referred to Civil Hospital, Roorkee. 6 Injury Nos.1, 2, 3, 4, 5, 6 and 8 kept under observation. Injury report is Ext.Ka-2 which is prepared by P.W.4 Dr. N.D. Arora (Medical Officer) at the time of medical examination. 11. To further prove its case, the prosecution examined P.W.3 Devi Ram-injured eyewitness, who has stated that on the date of the said incident he was coming to his house after completing his duty. When he reached near the Gangnahar Bridge then the accused/appellants Mahi Pal and Karan Pal armed with SARIA and Surendra armed with LATHI caused the injuries to him. After hearing the noise, Isham, Naresh and other people reached at the place of occurrence. Thereafter the accused/appellants ran away. Meanwhile, his son Tej Pal also reached there. Then he was taken to hospital in Police Jeep. Firstly, he was taken to Manglore, then to Roorkee, then Saharanpur and from there he was taken to P.G.I., Chandigarh. His bloodstained clothes were taken into possession by the I.O. The evidence of Devi Ram gets corroborated from the evidence of P.W.4 Dr. N.D. Arora (Medical Officer) and the injury report Ext.Ka-2. 12. Learned counsel for the accused/appellant argued that on the basis of the evidence discussed above, only the case u/s 325 r/w 34 I.P.C. is made out against the accused/appellant and the trial court has wrongly convicted and sentenced the accused/appellant for the offence punishable u/s 307 r/w Section 34 I.P.C. I find substance in the argument advanced by learned counsel for the accused/appellant, as the injuries are not dangerous to life and even in the F.I.R. it was not mentioned that the 7 injuries were caused to the injured Devi ram with the intention or knowledge to kill him and from the evidence discussed above the prosecution has not proved beyond reasonable doubt that the accused/appellant has caused the injuries to the injured with the intention or knowledge to kill him, and under such circumstances that, if the injured would die by these injuries then the accused/appellant would be guilty of murder. After considering the evidence available on record and the injury reports, the prosecution has not proved the case beyond reasonable doubt u/s 307 r/w 34 I.P.C. 13. Learned counsel for the complainant Tej Pal and the accused/appellant Mahi Pal have moved an application no.6823/08 seeking the permission for filing compromise and both the parties have moved a compromise application no.6824/08 which are supported by the respective affidavits and signed by the complainant Tej Pal and the accused/appellant Mahi Pal. Complainant Tej Pal is identified by Sri J.C. Karnatak, Advocate and the accused/appellant Mahi Pal is identified by Sri Tapan Singh, Advocate. Learned counsel for both the parties have submitted that the parties have entered into a compromise outside the Court and the injured Devi Ram has died and Tej Pal is the only son and legal heir of the deceased Devi Ram. It is further submitted that both the parties are living peacefully in the village and even they have filed a photocopy of the affidavit of the compromise filed by the injured Devi Ram in the Allahabad High Court. It is further 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 the compromise and 8 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. 14. The judgment and order dated 15.07.1991 passed by Additional Sessions Judge, Roorkee in Sessions Trial No.480/1989, State Vs. Karan Pal & others, for convicting the accused/appellant Mahi Pal u/s 307 r/w Section 34 I.P.C. is set aside and the sentence of eight years’ R.I. awarded to him u/s 307 r/w Section 34 I.P.C. is also set aside. However, the conviction u/s 325 r/w Section 34 I.P.C. awarded by the trial court is confirmed. 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 Mahi Pal is hereby acquitted of the charge of offence punishable u/s 325 r/w Section 34 I.P.C. and accordingly the appeal is disposed of. 15. For the reasons recorded above, the appeal is disposed of. 16. 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.) 15.10.2008 RG