HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.1654 OF 2001 (OLD NO.2025/1996) Pushkar Singh S/o Gyan Singh .……….. Appellant Versus The State ..…….. Respondent Dated: December 15, 2009 Mr. Arvind Vashitha, learned counsel for the appellant Mr. Amit Bhatt, learned Addl. GA for the State Mr. J.S. Virk, learned counsel for the complainant and injured Hon’ble Dharam Veer, J. This criminal 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 18.10.1996 passed by IIIrd Additional Sessions Judge, Nainital in S.T. No.48 of 1995, State Vs. Mahesh Chandra & another and S.T. No.231 of 1995, State Vs. Pushkar Singh by which the appellant- accused Pushkar Singh @ Pappu was convicted under Section 307 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and was sentenced to rigorous imprisonment for a period of five years and a fine of Rs.2,000/-. In default of payment of fine, simple imprisonment for a period of six months was further awarded. However, the co-accused persons, namely, Mahesh Chandra and Lachua @ Laxmi Dutt were acquitted of the charge levelled against them by the trial court. 2. The case of the prosecution is that on 17.3.1994 at about 12 O’clock in the daytime Pushkar Singh (the appellant herein) alongwith Mahesh Chandra and Lachua (co-accused) caused injuries to Ghananand Pandey. The 2 First Information Report of the said incident was lodged by the brother of the injured, namely, Indramani Pandey on the same day at P.S. Kaladhungi, Nainital. After the investigation, the charge sheet was filed against the appellant-accused and the co-accused (acquitted by the trial court) under section 307/326 IPC. Thereafter on 30.1.995 the case was committed to the court of Sessions and charge u/s 307 IPC was framed against the appellant- accused. 3. The prosecution, in order to prove its case, examined as many as eight witnesses. PW1 P.C. Kapri, PW2 Ghananand Pandey, PW3 Dr. R.K. Sharma, PW4 Indramani Pandey, PW5 Gosain Singh, PW6 Constable Clerk Om Prakash, PW7 Sub Inspector K.S. Negi and PW8 S.I. Ramkaram Ram. 4. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned IIIrd Addl. Sessions Judge, Nainital vide his judgment and order dated 18.10.1996 convicted and sentenced the appellant-accused as stated above. However, the trial court acquitted the two co-accused after giving benefit of doubt. Being aggrieved with the said judgment and order, the appellant preferred the present appeal before this Court. 5. Heard learned counsel for the parties and perused the material available on record. 6. Learned counsel for the parties has stated that during the pendency of this appeal, mutual compromise has been arrived between the parties. A compounding application (Criminal Misc. Application No.1319/2009) 3 has also been filed by the learned counsel for the complainant and injured wherein a prayer has been made to compound the offence against the appellant at this stage and to acquit the appellant from the criminal charges against him. Learned counsel for the parties jointly prayed that the appellant may be released by treating the sentence already undergone by the appellant-accused as sufficient. 7. The offence under Section 307 IPC is not a compoundable one, therefore, compromise cannot be recorded, but at the same time it is well settled that while awarding sentence the effect of compromise can be taken into consideration. It has been stated that the appellant has remained in custody for a period of about 20 months. Considering the totality of the facts and circumstances, in my opinion, the ends of justice would be met if the sentence of imprisonment awarded to the appellant is reduced to the period already undergone. I am fortified in my view with the judgment of Hon’ble Apex Court in case of “Ishwar Singh Vs. State of Madhya Pradesh” reported in (2009) 3 Supreme Court Cases (Cri) 1153. Paras 12, 13, 14 and 16 of this judgment are relevant to mention here, which are reproduced as hereunder:- “12. Now, it cannot be gainsaid that an offence punishable under Section 307 IPC is not compoundable offence. Section 320 of the Code of Criminal Procedure, 1973 expressly states that no offence shall be compounded if it is not compoundable under the Code. At the same time, however, while dealing with such matters, this Court may take into account a relevant and important consideration about compromise between the parties for the purpose of reduction of sentence. 13. In Jetha Ram V. State of Rajasthan, Murugesan V. Ganapathy Velar and Ishwarlal Vs. State of M.P. this Court, 4 while taking into account the fact of compromise between the parties, reduced sentence imposed on the appellant- accused to already undergone, though the offences were not compoundable. But it was also stated that in Mahesh Chand V. State of Rajasthan such offence was ordered to be compounded. 14. In our considered opinion, it would not be appropriate to order compounding offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned counsel for the appellant deserves consideration that while imposing substantive, the factum of compromise between the parties is indeed a relevant circumstance which the Court may keep in mind. 16. For the foregoing reasons, the appeal deserves to be partly allowed and is accordingly allowed by maintaining the conviction recorded by the trial court and confirmed by the appellate court but by reducing the sentence already undergone by the appellant. The sentence of payment of fine is not disturbed. If the appellant has not paid the amount of fine, he will pay such amount within four weeks from today.” 8. For the foregoing reasons, the appeal is allowed in part by maintaining the conviction recorded by the trial court but by reducing the sentence already undergone by the appellant. The sentence of payment of fine is not disturbed. If the appellant has not paid the fine, he will pay such amount within four weeks from today. 9. A copy of this judgment be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) 15.12.2009 RG