IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.178 OF 2008 (OLD NO.2124/1982) 1. Majid S/o Wali Mohammad 2. Alladin S/o Nazir 3. Iqbal S/o Mangta 4. Sultan S/o Hamid 5. Irfan S/o Hamid All residents of village Mustafahad P.S. Jwalapur, District Saharanpur ……… Appellants Versus The State ……… Respondent Dated: November 7, 2008 Sri Rajendra Singh, learned counsel for the appellants Sri Mohd. Safdar, learned counsel for appellant no.3 Sri Harish Pujari, learned Addl. G.A. and Sri M.A. Khan, learned brief holder for the State Sri S.K. Shandiliya, learned counsel for the complainant 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 27.8.1982 passed by IInd Additional Sessions Judge, Saharanpur in Sessions Trial No.521/1981, State Vs. Majid & others, whereby the learned IInd Additional Sessions Judge convicted the accused/appellants-Majid and Iqbal for the offence punishable u/s 307 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 five years. Each of these accused/appellant was further convicted u/s 148 I.P.C. and was sentenced to two years’ R.I. It was also directed that both the sentences shall run concurrently. The accused/appellants-Sultan, Irfan and Alladin were convicted u/s 307 r/w 149 I.P.C. and each of these accused/appellants was sentenced to three years’ R.I. The accused/appellants-Sultan, Irfan and Alladin were further convicted u/s 147 I.P.C. and were sentenced to one year’s R.I. It was also directed that both the sentences shall run concurrently. 2. I have heard Sri Rajendra Singh, learned counsel for the accused/appellants, Sri Mohd. Safdar, learned counsel for appellant no.3, Sri Harish Pujari, learned Addl. G.A. and Sri M.A. Khan, learned brief holder for the State as well as Sri S.K. Shandiliya, learned counsel for the complainant and perused the entire evidence available on record. 3. In para no.2 of the affidavit filed by Mansab- injured, it has stated that the appellant no.4 Sultan S/o Hamid has died. On the basis of this, on 6.11.2008, Sri Harish Pujari, learned Additional G.A. was directed to submit the report about the death of the appellant no.4 Sultan after verifying from the Police Station, Bahadarabad. In this regard, learned Addl. G.A. submitted the report of the Police Station, Bahadarabad along with the death certificate of the appellant no.4. The report reveals that the appellant no.4 Sultan has died on 10.12.2007. Hence, the appeal against the appellant no.4 stands abated. 4. In brief, the prosecution case is that on 19.3.1980, Hashmat lodged the F.I.R. at Police Station, Jwalapur with the allegation that the litigations were going on between him and the accused/appellants Majid and Alladin. His son Mansab (injured) was contesting the case on his behalf, due to which, these people have enmity with him. He further averted that on the same day at about 10 A.M., his son Mansab was in his wheat field meanwhile Majid, Alladin, Sultan, Irfan and Iqbal came at the place of occurrence. Majid and Iqbal were armed with Pistol and rest of the accused/appellants were armed with lathies. On the exhortation of the accused Alladin, Majid and Iqbal fired at Mansab to kill him. It is alleged that the gun shot of Majid hit the chest of Mansab due to which he received injuries on his chest while the gun shot fired by another accused Iqbal escaped and did not hit Mansab. Hashim, Mumtaj, Rehmatillahi and Nazir of the same village reached at the place of occurrence who witnessed the incident. Thereafter, the accused/appellants ran away from the place of occurrence. Condition of his son Mansab was serious. With the same averments, F.I.R. was lodged by him in Police Station, Jwalapur on 19.3.1980 at 4:45 P.M., i.e., Ext.Ka-4. On the basis of this report, Chik F.I.R. was prepared by Head Mohirror, Kanwal Singh, i.e., Ext.Ka-2. The necessary entry was also made in the G.D., copy of the G.D. is Ext.Ka-3. Injured-Mansab was medically examined by P.W.7 Medical Officer, Dr. K.L. Sah, who prepared the injury report Ext.Ka-6. The supplementary report was also prepared by him, i.e., Ext.Ka-7. Investigation of this case was entrusted to P.W.6 Sub Inspector, Satya Narayan Sharma, who during the course of the investigation took the bloodstained clothes of the injured in his possession and prepared a FARD, i.e., Ext.Ka-1. He also inspected the place of occurrence and prepared the site-plan, i.e., Ext.Ka-4A. During the course of investigation, the I.O. also recorded the statement of the witnesses and after completing the investigation, he filed the charge sheet against the accused/appellants u/Ss 147/148/149/307 I.P.C. That charge sheet is Ext.Ka-5. 5. Learned Munsif Magistrate, Haridwar committed the case to the Court of Sessions on 18.11.1980 after giving necessary copies to the accused/appellants as provided u/s 207 Cr.P.C. 6. It appears that the case was transferred to IInd Additional Sessions Judge, Saharanpur for hearing and disposal as per the law. 7. On 20.7.1981, learned IInd Additional Sessions Judge, Saharanpur framed the charge against the accused/appellant Majid u/s 307 I.P.C. The charge was also framed against the accused/appellants Alladin, Sultan and Irfan u/s 147 I.P.C. The charge was also framed against the accused/appellants Iqbal and Majid u/Ss 307 and 148 I.P.C. The charge was read over and explained to each of them, who pleaded not guilty and claimed to be tried. 8. On 20.8.1982, learned IInd Addl. Sessions Judge, Saharanpur amended the charge against the accused/appellant Majid and framed the charge against him u/Ss 307 and 148 I.P.C. Learned IInd Addl. Sessions Judge, Saharanpur, also amended the charge against the accused/appellants Alladin, Sultan and Irfan and framed the charge against them u/Ss 147 and 307 r/w Section 149 I.P.C on 20.8.1982. The charge was also amended against the accused/appellant Iqbal and the charge framed against him was u/Ss 307 and 148 I.P.C. The charge was read over and explained to each of them, who pleaded not guilty and claimed to be tried. 9. In order to prove its case, the prosecution examined P.W.1 Mansab-injured eyewitness, P.W.2 Hashim-eyewitness, P.W.3 Head Constable, Kanwal Singh, P.W.4 Hashmat (complainant), P.W.5 Mumtaz- eyewitness, P.W.6 Sub Inspector, Satya Narayan Sharma (Investigating Officer of the case), P.W.7 Dr. K.L. Sah, who has medically examined the injured Mansab. 10. After that the statement of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of the accused persons in question form, who have denied the allegations made against them. However, in defence, they have not produced any oral evidence but in documentary evidence, they have filed a copy of judgment dated 30.10.1980 passed by Munsif Magistrate, Roorkee, in a case Hameed and others Vs. Rehmat Ali. The copy of the judgment is Ext.Kha-1. 11. After appreciating all the evidence available on record and hearing learned counsel for the parties, learned IInd Additional Sessions Judge, Saharanpur vide his judgment and order dated 27.8.1982, convicted the accused/appellants-Majid and Iqbal for the offence punishable u/s 307 I.P.C. and sentenced each of them undergo rigorous imprisonment for a period of five years. Each of these accused/appellant was further convicted u/s 148 I.P.C. and was sentenced to two years’ R.I. It was also directed that both the sentences shall run concurrently. The accused/appellants-Sultan, Irfan and Alladin were convicted u/s 307 r/w 149 I.P.C. and each of these accused/appellants was sentenced to three years’ R.I. The accused/appellants-Sultan, Irfan and Alladin were further convicted u/s 147 I.P.C. and were sentenced to one year’s R.I. It was also directed that both the sentences shall run concurrently. Feeling aggrieved by the said judgment and order dated 27.8.1982, the accused/appellants preferred the present appeal. 12. Before further discussion, it is pertinent to mention the injuries found on the body of the injured Mansab, who was medically examined by P.W.7 Dr. K.L. Sah on 19.3.1980 at 5:45 P.M. The injuries found on the body of the injured is reproduced as under:- (i) Multiple pellets injury in an area of 22cm x 16cm, extending from upper part front of right side chest to right top of shoulder, individual size of pellet is 0.3cm x 0.3cm, blackening, tattooing and scorching present. Bleeding present, probing cannot be done due to surgical reason, surgical emphysema absent, air entry equal on both side. Injury is under observation, Advised X-ray of the region, Chest PA view and caused by firearm. Duration-about half day old. The supplementary report of the injured was also prepared by P.W.6 Dr. K.L. Sah, which is reproduced as under:- (i) Multiple round radio opaque shadow in the region of right front chest upper region and right shoulder. The density of radio opaque shadows are metallic 13. To prove the above noted reports, the prosecution examined P.W.7 Dr. K.L. Sah, who has stated that on 19.3.1980, he was posted as Medical Officer In-charge at G.D. Hospital, Haridwar. On that day, at 5:45 P.M., injured-Mansab was medically examined by him and he found the above noted injuries on his body. Injury Report Ext.Ka-6 and supplementary report Ext.Ka-7 were prepared by him. He further stated that the injuries could be possible on 19.3.1980 at about 10 A.M. In the cross-examination, he has stated that after the X-ray he found that the injuries were simple in nature. He further stated that after the X-ray he came to the conclusion that the injuries were not dangerous to life. 14. To further prove its case, the prosecution examined P.W.1 Mansab (injured), who has stated that the accused/appellants Majid and Alladin are brothers and the accused/appellants Sultan and Irfan are real brothers. Accused/appellant Iqbal is also associated with them. The accused/appellants were in inimical terms with him before the said incident and the litigations were going on in the courts. On the date of the incident at about 10 A.M., he was in his wheat field. Meanwhile, accused/appellants Majid and Iqbal armed with revolver and rest of the accused armed with lathies came there. On the exhortation of the accused Alladin, the accused/appellants Majid and Iqbal fired on him. Gun shot of Majid hit the chest of Mansab due to which he received injuries on his chest while the gun shot fired by another accused Iqbal did not hit him. Rehmatillahi, Mumtaz, Hasim, Najir and some other people reached at the place of occurrence, who witnessed the said incident. Seeing the witnesses the accused/appellants ran away towards Ratanpur side. Then he was brought to his village by these four witnesses. After sometime his father came and he narrated the entire incident to his father, who has taken him to Police Station, Jwalapur. He was then taken to hospital where his medical examination was done and he was also admitted in the hospital. The Investigating Officer has taken the bloodstained shirt, tehmad and bed sheet into his possession and sealed at the spot and the FARD was prepared, i.e., Ext.Ka-1. He identified those clothes-Tehmad Ext.1, Jwahar cut Ext.2, Shirt Ext.3 and Bed sheet Ext.4. He further stated that his X-ray was also conducted. The statement of P.W.1 Mansab-injured gets corroboration from the statement of P.W.2 Hashim-eyewitness and P.W.5 Mumtaz. 15. P.W.3 is Head Constable Kanwal Singh, who has stated that on 19.3.1980, he was posted as Head Constable in Police Station, Jwalapur. On that day, P.W.4 Hashmat has lodged the F.I.R. in the police station on the basis of which he prepared the Chik F.I.R., i.e., Ext.Ka-2. The necessary entry was also made in the G.D., copy of the G.D. is Ext.Ka-3. 16. P.W.4 is Hashmat-complainant, who has lodged the F.I.R. on the basis of the information received from P.W.1 Mansab. He has proved the F.I.R. lodged by him, i.e., Ext.Ka-4. 17. P.W.6 is Satya Narayan Sharma-Investigating Officer of the case, who has stated that on 19.3.1980 he was posted as Sub Inspector in Police Station, Jwalapur. Investigation of this case was entrusted to him on 20.3.1980. During the course of the investigation, he has taken the bloodstained clothes of the injured in his possession and prepared the FARD, i.e., Ext.Ka-1. He also recorded the statement of the witnesses and prepared the site-plan Ext.Ka-4A. After completing the investigation, he filed the charge sheet against the accused/appellants, i.e., Ext.Ka-5. 18. After that the statement of the accused/appellants were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to each of the accused persons in question form, who have denied the allegations made against them. However, in defence, they have not produced any oral evidence but in documentary evidence, they have filed a copy of the judgment dated 30.10.1980 passed by Munsif Magistrate, Roorkee, in a case Hameed and others Vs. Rehmat Ali. The copy of the judgment is Ext.Kha-1. 19. Sri Rajendra Singh, learned counsel for the accused/appellants submitted that on the basis of the evidence discussed above, no charge u/s 307 I.P.C. is made out against the accused/appellants. The only charge made against the accused/appellants is u/s 324 I.P.C. Injured Mansab has not stated in his statement, recorded in the trial court, that the accused/appellants have caused the injuries to him with the intention to kill him. Even the statement of P.W.7 Dr. K.L. Sah and the injury report Ext.Ka-6 and supplementary report Ext.Ka- 7 reveals that the injuries were simple in nature and were not dangerous to life. Thus, from the evidence discussed above, it has not come that the accused/appellants have caused the injuries to injured Mansab with the intention or knowledge to kill him and under such circumstances that, if the injured would die by these injuries then the accused/appellants would be guilty of murder. For the reasons discussed above, no charge u/s 307 I.P.C. is made out against the accused/appellants. However, the offence u/s 324 I.P.C. is made out against the accused/appellants. Thus, the prosecution has not proved the case beyond reasonable doubt against the accused/appellants Majid and Iqbal u/s 307 I.P.C. and against the accused/appellants Sultan, Irfan and Alladin u/s 307 r/w 149 I.P.C. Instead the prosecution has proved the case against the accused/appellants u/s 324 I.P.C. On the basis of the evidence discussed above, the prosecution has failed to prove the case u/s 148 I.P.C against the accused/appellants Majid and Iqbal and also has not proved the case u/s 147 against the accused/appellants Sultan, Irfan and Alladin, but the prosecution has successfully proved the charge u/s 324 I.P.C. against each of the accused/appellants beyond reasonable doubt. 20. At this juncture, Mansab-injured who has been identified by Sri S.K. Shandiliya, Advocate, has moved an application (Compounding Application No.751/2008) seeking permission for filing compromise and both the parties have moved a compromise application (Compromise Application No.752/2008) which are supported by the respective affidavits. The accused/appellants, namely, Majid, Alladin and Irfan have been identified by their learned counsel, Sri Rajendra Singh and accused/appellant Iqbal is identified by Jailor, District Jail, Haridwar. Learned counsel for both the parties submitted that the incident is about 28 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 living peacefully in the same village and they have got no problem or inimical terms and belongs to same family except the accused/appellant Iqbal. 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- Mansab and the accused persons are living peacefully in the same village, 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. 21. In these circumstances, on the basis of the compromise arrived at between the parties the appeal deserves to be allowed, consequently the judgment and order dated 27.8.1982 passed by IInd Additional Sessions Judge, Saharanpur in Sessions Trial No.521/1981, State Vs. Majid & others, for convicting and sentencing the accused/appellants, also deserves to be set aside. Therefore, the conviction of the accused/appellants Majid and Iqbal u/Ss 307 and 148 I.P.C. and sentence of five years R.I. u/s 307 I.P.C. and two years’ R.I. u/s 148 I.P.C. respectively, is set aside. The conviction of accused/appellants Sultan, Irfan and Alladin u/s 307 r/w 149 I.P.C. and sentence of three years’ R.I. each, is also set aside. The further conviction of accused/appellants Sultan, Irfan and Alladin u/s 147 I.P.C. and sentence of one year’s R.I. each, is also set aside. However, each of the accused/appellants is convicted u/s 324 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 I.P.C. and accordingly the appeal is disposed of. 22. For the reasons recorded above, the appeal is disposed of. 23. Let a copy of this judgment along with the record of the court below be sent back to the trial court. (Dharam Veer, J.) 07.11.2008 RG