IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.736-SB of 1997 Date of decision: 13th January, 2010 Babli and others … Appellants Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. H.S. Gill, Senior Advocate with Mr. Vivek Goel, Advocate and Mr. Manuj Nagrath, Advocate for the Appellants. Mr. Deepak Jindal, Deputy Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present appeal has been preferred by eleven persons, namely, Babli, Ammu Khan, Jamil, Issab, Yunus, Islam, Khatak, Khalil, Sattar, Umrao and Moji. They have been convicted and sentenced by the trial Court as under: “In these circumstances, the accused are sentenced to undergo 4 months RI and to pay Rs.200/- as of fine for the offence punishable under section 148 read with section 149 of IPC. In default of payment of fine, they are to further undergo 15 days as RI. The accused are further sentenced to undergo 4 year RI and to pay Rs.1000/- as of fine for the offence punishable under section 436 read with section 149 of IPC. In default of payment of fine, they are to further undergo 2 months RI. The accused are further sentenced undergo 6 months RI and to pay Rs.300/- as of fine for the offence punishable under section 506 read with section 149 IPC. In default of payment of fine, they are further undergo 1 Criminal Appeal No.736-SB of 1997 month RI. The substantive sentences, under all the sections, shall run concurrently. The period already spent by the accused in custody be set off from the substantive sentence.” Umar Mohd made a report at Police Station Nuh that he is resident of village Kairaka. About one month ago, before the occurrence, accused Issab son of Mangal, Innas son of Mangal, Janu son of Mangal, Assu, Jamil, Farookh sons of Khunti, Mussa, Deenu sons of Sodani had blocked passage of his house. He had reported the matter to SDM, Nuh by filing an application. Patwari was deputed to carry inspection at the spot but accused had not allowed the Patwari to demarcate the disputed area. On the intervening night of 2nd and 3rd April, 1992 all the eleven accused came there armed with Lathies and ballams. They threatened that complainant will be taught a lesson. On the noise raised, PWs Mangal, Chandra and Jabra were attracted at the spot. The accused appellant Babli exhorted his other accused to set the Chhappar (shed made of straw) on fire. Thereafter, accused Assu and Jamil had put the Chhappar on fire, due to which 8/10 cots, beds, engine machine and grain were burnt, along with wood which was lying there. The witnesses tried to extinguish the fire but the accused, who were armed with the weapons scared them and thereafter, decamped from the spot. On the basis of the statement made, case FIR No.72 dated 03.04.1992 was registered at Police Station Nuh under Section 436, 506, 379, 34 IPC. The prosecution examined Mool Chand Punia, Draftsman as PW-1, who prepared the scaled site plan Ex.PA. This witness stated that site plan was prepared at the instance of complainant Umar Mohd. SI Rattan Singh appeared as PW-2. He stated that he had partly investigated the case and had arrested Khatak accused on 21st May, 1992. He had also recorded statement of Mool Chand Punia, Draftsman. PW-3 SI Daya Nand had recorded statement of Satish Kumar, Photographer. He had also 2 Criminal Appeal No.736-SB of 1997 arrested remaining ten accused. PW-4 complainant Umar Mohd. appeared and reiterated his version. This Court need not notice the deposition of witnesses in detail as later, according to Mr.H.S. Gill, Senior Advocate assisted by Mr.Vivek Goel, and Mr.Manuj Nagrath, compromise was affected and parties, in order to promote everlasting peace, amity and harmony, have brought to an end the feud pending between them. Jabra PW-5 was examined to corroborate the testimony of PW-4 Umar Mohd. PW-6 Shankar Lal, at the relevant time was posted as SHO, Police Station Nuh. He had investigated the case and deposed regarding the same. Satish Kumar, Photographer appeared as PW-7 and proved the photographs Ex.PE/1 to PE/5. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded. The accused denied all incriminating circumstances put to them. On 23rd November, 1995, Umar Mohd and Jabra were recalled for cross examination. Umar Mohd stated as under: “On 3.4.92 the occurrence took place during night at about 1.30 A.M. I was present inside by Chhapper when I saw that another Chhapper of mine was burning. I immediately went there but did not see anybody present. None of the accused present today in the Court was present there. I lodged report with the police next day. Police had obtained my signatures on a blank paper. On 8.2.94 in my previous statement in the Court I had deposed against the accused because I had been threatened by the police that if I did not make the statement against the accused, I shall be implicated in some case. PW Jabra was not present at the spot. Affidavit Ex.D1 has been sworn by me and bears my signature. Zabra had also sworn an affidavit on that day. He was identified by Harun member panchayat. The statement made by me today in the Court is correct.” 3 Criminal Appeal No.736-SB of 1997 Mr.H.S. Gill, Senior Advocate assisted by Mr.Vivek Goel, and Mr.Manuj Nagrath, has stated that after the contention of the accused was recorded and they were to be heard for quantum of sentence, at that stage the compromise was placed on record. The Court examined complainant Umar Mohd. and he made the following statement: “Statement of Umar Mohd. son of Salli aged 30 years, cultivator, r/o village Kairka, on SA A compromise has been arrived at in between me and the accused. Accused have compensated to me on account of the loss suffered in this incident. Ex.AI is the compromise and it bears my thumb impressions. I have no grouse against the accused and since one year we are living peacefully. This compromise was arrived at about 1 year ago without any pressure. xxxxxxxxx by Ld. PP for the State. It is incorrect to suggest that due to pressure of sarpanch, I compromised the matter. Sd/- RO&AC ASJ/G 17.9.97” The trial Court considered the fact of compromise and in the order of quantum of sentence, observed as under: “2. However, there is no dispute that the complainant has admitted that a compromise has been arrived at between them. He has also admitted that the accused have compensated for the loss suffered by him. As per opinion of our own Hon’ble Supreme Court in Ram Pujan and others versus State of Uttar Pradesh, 1973 Cri.L.J.1612, it is clear that the fact of compromise can be taken into consideration while determining the quantum of sentence and a lessor punishable can be awarded. This principal is followed in Amar Singh versus State of Punjab, 1983 C.C. Cases 390 (HC) (the case laws cited by the defence counsel). So, I am also of the view that in these circumstances, less sentence be awarded to the accused even the offence u/s 436 of IPC is punishable with life.” 4 Criminal Appeal No.736-SB of 1997 Mr. H.S. Gill, Senior Advocate has urged that in the matters of 307, 326 IPC, where a compromise is arrived between the parties, this Court, taking into consideration the compromise, has consistently reduced the sentence to already undergone. He has placed on record ‘Kulwant Singh v State of Punjab’ 2005 (2) RCR (Criminal) 975. It will be apposite here to reproduce following portion of the judgment relied: “11. I have given my thoughtful consideration to the respective contentions of the learned counsel appearing for the parties. It is not in dispute between the appellant Kulwant Singh and complainant Sawinder Singh that the compromise has been effected between the parties. The learned counsel for the appellant has also not challenged his conviction but he has only prayed that the sentence imposed may be reduced to that already undergone. It is not in dispute that the offence under Section 326 IPC for which Kulwant Singh (appellant) has been convicted is not a compoundable offence. However, this Court and the Hon'ble Supreme Court have considered it to be relevant circumstance for the purpose of imposing sentence. In Mahesh Chand and another v. State of Rajasthan, 1988(1) RCR(Crl.) 498 (SC) : AIR 1988 SC 1211, the accused therein were acquitted by the trial Court but were convicted by the High Court for the offence under Section 307 IPC. The parties therein entered into a compromise and prayed that it be treated as a special case even though the offence under Section 307 IPC was not compoundable. One of the accused in the said case was a lawyer practicing in the lower Court and there was a counter-case arising out of the same transaction. Their Lordships of the Supreme Court after giving anxious consideration to the said case and after examining the nature of the case and the circumstances in which the offence was committed observed that it may be proper that the trial Court shall permit the parties to compound the offence and an earlier decision in Y. Suresh Babu v. State of A.P., JT 1987(2) SC 361 was referred to. In Bharat Singh v. State of M.P., 1990 SCC (Cri.) 617, the conviction of 5 Criminal Appeal No.736-SB of 1997 the appellant therein for the offence under Section 326 IPC in view of evidence on record was modified to that under Section 324 IPC. The appellant therein and the injured had entered into a compromise and the appellant had compensated the injured for the injury sustained by him. The injured person appeared before the Court and admitted the fact of his having received Rs. 15,000/- from the appellant and that he entered into a compromise. In the said circumstances, it was observed that for maintaining good relationship between the parties the petition for compromise should be allowed. Accordingly, permission was granted to the appellant therein to compound the offence and he was acquitted for the offence under Section 324 IPC. In Surendra Nath Mohanty and another v. State of Orissa, 1999(2) RCR(Crl.) 683 (SC) : 1999(2) RCC 584, the Hon'ble Supreme Court upheld the order of the High Court refusing to grant permission to compound the offence under Section 326 IPC. However, keeping in view the fact that the parties had settled their dispute outside the Court and ten years had elapsed from the date of the incident and the appellants therein had already undergone three months imprisonment, the sentence was reduced to that already undergone and fine of Rs. 5,000/- was imposed on each of the accused therein for the offence under Section 34 IPC. In Bankat and another v. State of Maharashtra, 2005(1) RCR (Crl.) 306 (SC) : (2005)1 SCC 343, it was held that offence under Section 326 IPC was not compoundable and the High Court rightly refused to grant permission to compound the offence. However, considering that the parties had settled the dispute outside the Court and ten years had elapsed from the date of the incident and the accused had already undergone several months of imprisonment, reduced the custodial sentence to period already undergone and imposition of fine of Rs. 5,000/- with default stipulation was held to be proper.” Mr. H.S. Gill, Senior Advocate has further stated that appellants have undergone about two months after their conviction and few days as undertrial. 6 Criminal Appeal No.736-SB of 1997 In the present case, also learned Senior Counsel has not assailed the conviction. This Court has always held a view that the compromise between the parties promotes everlasting peace, amity and harmony and bad blood between the parties come to an end. In the present case, occurrence took place in April, 1992. About 18 years are going to elapse. Mr.Gill has assured this Court that after the incident, complete peace is prevailing in the village. In case, the appellants are sent behind the bars, it may disturb the prevailing peace, therefore, no useful purpose will be served. Mr.Deepak Jindal, DAG Haryana has stated that this Court in its magnanimity can further compensate the complainant. Taking into consideration the submissions made by counsel for the parties, sentence awarded upon the appellants is reduced to already undergone. However, sentence of fine qua each appellant is enhanced to Rs.5000/-. The amount shall be deposited by them in the trial Court and the same shall be paid as compensation to the complainant. In case the amount of fine is not deposited by the appellants, they shall undergo six months rigorous imprisonment in default. With these modifications in the sentence, present appeal is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE January 13, 2010 rps 7