IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.260 of 2001 (Old No.380 of 1993) 1. Pravin @ Chandi 2. Navin 3. Tarun S/o Sri Surya Kumar Mittal, P.S. Gang Nahar, Roorkee, District Haridwar …….….…. Appellants Versus The State …….….… Respondent Dated: June 4, 2009 Sri Navneet Kaushik, Advocate for the appellants 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 Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 18.02.1993 passed by Additional Sessions Judge Roorkee in Sessions Trial No.187 of 1990, State Vs. Praveen & others, whereby the learned Additional Sessions Judge has convicted the appellants/accused Praveen @ Chandi, Naveen and Tarun under Section 307 r/w Section 34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to undergo three years’ rigorous imprisonment. Co-accused Surya Kumar was acquitted by the trial court for the offences under which he was charged. 2. I have heard learned counsel for the parties and perused the entire material on record. 2 3. In brief, the facts of the case are that P.W.1 Jagdish Prakash Bhatnagar lodged an FIR with the averments that on 31.7.1989 at about 11:00 PM, appellants/accused Chandi, Naveen, Tarun along with co- accused Surya Mittal (acquitted by trial court) came at his house. Appellant/accused Chandi called his (complainant’s) son Sanjeev (P.W.3) to come out and enquired that why he (Sanjeev) abused his father. On this, complainant’s son Sanjiv told them that he had not abused anyone. As soon as complainant’s son came at the door, the appellants/accused and Surya Mittal pulled him out and then co-accused Surya Mittal said that he (Sanjeev) should not be let alive. It was further stated that appellants/accused Naveen, Tarun, Chandi with knife and co-accused Surya Mittal with iron rod, started causing injuries to Sanjeev with the intention to kill him. Then on the alarm raised by complainant and his son, people from the locality came who also witnessed the incident. Since the situation of his (complainant’s) son was serious hence the complainant took his son at Civil Hospital Roorkee where he was admitted. With the same averments, the report was lodged by P.W.1 Jagdish Prakash after getting it scribed by P.W.2 Smt. Umlesh Bhatnagar on 1.8.1989 at 1.40 AM at P.S. Gangnahar, Distt. Haridwar, i.e. Ex.Ka-1. On the basis of this FIR, Constable Clerk Ganpati Sharma prepared the Chik FIR, i.e. Ex.Ka-7. The entry was also made in the G.D., the copy of which is Ex.Ka-8. The investigation of this case was entrusted to S.I. D.R. Bhukesh. Injured Sanjeev Kumar was medically been examined on 31.7.1989 at 11:30 P.M. by P.W.4 Dr. H.C. Purohit and his medical report Ex.Ka-5 was prepared. The I.O. also took in his possession the blood stained clothes of the injured Sanjeev Kumar and prepared Fard, i.e. Ex.Ka-2. The I.O. 3 also inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-9. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, filed the charge sheet, i.e. Ex.Ka-6. 4. Learned I Addl. Munsif Magistrate, Roorkee (Distt. Haridwar) has committed the case to the court of Sessions on 28.11.1990 after giving necessary copies to the appellants/accused as required under Section 207 Cr.P.C. 5. On 5.03.1991, learned Additional Sessions Judge, Roorkee framed the charges against the appellants/accused Praveen @ Chandi, Naveen, Tarun and co-accused Surya Kumar Mittal (acquitted by the trial court) under Sections 307/34 IPC. The charges were read over and explained to each of the appellants/accused and to co-accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined P.W.1 Jagdish Prakash, complainant, P.W.2 Smt. Umlesh Bhatnagar, eyewitness, P.W.3 Sanjeev Kumar, injured witness, P.W.4 Dr. H.C. Purohit, who medically examined the injured, P.W.5 Constable Ved Prakash and P.W.6 Constable Narendra Singh. 7. Thereafter, the statements of the appellants/ accused and that of co-accused Surya Kumar (acquitted by trial court) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form. Each of the appellants/accused and co- accused denied the allegations made against each of them. In oral evidence D.W.1 Surya Kumar, Mohd. Ayub as D.W.2 and Naveen Mittal as D.W.3 were examined. 4 They also produced some documents as Ex.Kha-1 to Ex.Kha-7 in documentary evidence. 8. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Additional Sessions Judge, Roorkee vide judgment and order dated 18.02.1993 convicted and sentenced the appellants/accused as discussed above. Feeling aggrieved with the aforesaid judgment and order, the appellants/ accused have preferred the present appeal. 9. Learned counsel for the appellants/accused has argued that as per the evidence discussed above, only the case u/s 324 I.P.C. is made out against the accused/appellants and the trial court has wrongly convicted and sentenced the accused/appellants for the offence punishable u/s 307/34 I.P.C. I find force in the argument put forth by counsel for the appellant/accused. In the present case, there was no injury found on the person of injured Sanjeev Kumar which could be dangerous to life. Even P.W.4 Dr. H.C. Purohit has stated in his cross-examination that in the x-ray report of injured Sanjeev Kumar, the result was NAD (nothing abnormally detected). This fact itself shows that the injuries found on the person of injured Sanjeev Kumar were not dangerous to life. Therefore, in view of the aforesaid discussion, I am of the view that the only the offence punishable u/s 324/34 IPC is made out against the appellants/accused. 10. A compromise application was moved before the High Court of Judicature at Allahabad by the appellants/accused and injured Sanjeev with the prayer that the compromise arrived at in between the parties may be accepted and the offence may be compounded. On that application, the order was passed by the 5 Allahabad High Court on 19.4.1994 directing the CJM Haridwar to get the compromise verified. In compliance thereof, CJM Haridwar vide report dated 12.5.1994 has also submitted that on 11.5.1994 both the parties appeared before him and accordingly he verified the compromise arrived at in between the parties. However, that application remained pending. After creation of State of Uttaranchal now Uttarakhand, the instant appeal was transferred to this Court as per Section 35(2) of the U.P. Re-organization Act, 2000. 11. Today, a fresh compounding application No.586/09 has been filed on behalf of the applicant- Sudhir Bhatnagar (brother of injured Sanjeev Bhatnagar) in which it has been stated that injured Sanjeev Kumar (P.W.3), his father Jagdish Kumar Bhatnagar (complainant and P.W.1) and Smt. Umlesh Bhatnagar (P.W.2), all have died. He has further stated that there is now no dispute between the present applicant with the appellants/accused and they are living happily as neighbourers. As per Section 320(4)(b) Cr.P.C. it has been prayed that being the legal representative of the above-said persons, he has the legal authority to file the present application. 12. After considering all the facts and circumstances of the case and particularly considering the fact that the injuries found on the person of injured Sanjeev Kumar were not dangerous to life and further the injuries were not caused with the intention to kill Sanjeev Kumar by the appellants/accused, the Court is of the view that the only offence made out against the appellants/accused is the offence punishable u/s 324 r/w Section 34 IPC and not the offence punishable u/s 307 r/w Section 34 IPC under which the appellants/accused have been convicted and sentenced by the trial court. 6 13. In view of the above-said discussion, since the parties have amicably settled their dispute and they are living peacefully as neighbourers, the present compounding application is allowed. The judgment and order dated 18.02.1993 passed by Additional Sessions Judge, Roorkee in Sessions Trial No.187/1990, convicting and sentencing the appellant/accused u/s 307/34 IPC for three years’ R.I. each, is hereby set aside. 14. The appeal stands disposed of accordingly. 15. 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.) 04.06.2009 Rdang