HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 1319 of 2001 (Old no. 1913 of 1992) 1. Nawab, 2. Katar, 3. Azad, 4. Subhash All sons of Sri Sukhpal Singh, R/o village Harchandpur, Police Station Manglor, District Haridwar. ------- Accused/appellants. Versus The State. ------- Respondent Sri Rajendra Singh, learned counsel for the appellants, Sri Parikshit Saini, learned counsel for the complainant. Sri Tanuj Semwal, learned A.G.A. for the State, Dated: August 19, 2008 Hon’ble Dharam Veer, J. This appeal preferred u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) is directed against the judgment and order dated 21.10.1992 passed by Sessions Judge, Haridwar in Sessions Trial no. 170 of 1991 State vs. Nawab and three others, whereby the learned Sessions Judge has convicted the accused/appellants for the offence punishable u/s 307 read with Section 34 of The Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and sentenced each of the accused/appellants, namely, Nawab, Azad and Katar to undergo rigorous imprisonment for a period of 4 years’ with fine of Rs. 1,000/- each and in default of payment of fine further one year’s R.I. was awarded. The appellant/accused Subhash was sentenced to undergo rigorous imprisonment for a period of two years. 2. I have heard Sri Rajendra Singh, learned counsel for the accused/appellants, Sri Tanuj Semwal, learned A.G.A. for the State and Sri Parikshit Saini, learned counsel for the complainant. 2 3. The prosecution case, in brief, is that Rajpal has lodged a First Information Report with the Police Station Manglore with the averments that his father had transferred four Biswa of land in favour of Pahal Singh S/o Trilok Singh, due to this reason his grandsons Nawab, Azad, Katar and Subhash sons of Sukhapal Singh were annoyed. Due to the same animosity, the accused/appellants had also beaten to the complainant Rajpal on 21.02.1991 and a report was lodged about this incident. Feeling annoyed with this action, on 22.02.1991, when his brother Pahal Singh was coming to his house through a bullock- cart and when he reached near the CHAK of one Khajane, then the accused persons Nawab and Katar armed with TABALS, accused Azad armed with a GANDASA and the accused Subhash armed with LATHI met with his brother Pahal Singh and they had inflicted injuries to his brother Pahal Singh. On hearing the screams of his brother, he (Rajpal Singh), his wife, his son and one Sunder Pal Singh had reached on the place of occurrence and saved his brother. Thereafter, the accused persons had run away toward forest. The injured Pahal Singh was taken to the Govt. Hospital, Roorkee. With the same averments, the complainant Rajpal has lodged a First Information Report on 22.02.1991 at Police Station Manglore. The F.I.R. is Ext. Ka-7 on the record. On the basis of the F.I.R. the Chik F.I.R. Ext.Ka-1 was prepared by PW-3 Head Moharir Rameshwar Prasad on 22.02.1991 at 6:25 p.m. An entry was made in the General Diary, carbon copy of which is Ext. Ka-2. The injured Pahal Singh was medically examined by PW-4 Dr. Ajay Kumar, Radiologist (Medical Officer-on emergency duty) on 22.02.1991 at 4:30 p.m. and he prepared injury report Ext. Ka-4. Bloodstained clothes of the injured Pahal Singh were taken into possession by the police and a FARD was prepared which is Ext. Ka-3. The bed head ticket of the injured Pahal Singh is Ext. Ka-5 and the X-Ray report of the injured is Ext. Ka-6. The report which was lodged by the complainant on 21.02.1991 against Nawab, Katar and Azad is Ext. Ka-8 on the 3 record. Investigation of this case was entrusted to PW-8 S.I. Raj Kumar Singh. During the course of the investigation, the I.O. has prepared the site plan of the place of occurrence, which is Ext. Ka-9. The Investigating Officer has also recorded the statement of the witnesses and after completing the investigation, he submitted charge sheet Ext. Ka-10 against the accused/appellants u/s 307 I.P.C. 4. Learned Judicial Magistrate, Roorkee on receipt of the charge sheet, after giving necessary copies to the accused persons as required u/s 207 Cr.P.C., committed the case to the Court of Sessions for trial on 10.05.1991. 5. On 29.07.1991, the learned Sessions Judge, Haridwar after hearing the parties framed the charge of offence punishable u/s 307 read with Section 34 I.P.C. against the accused persons Nawab, Katar, Azad and Subhash. The charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has examined PW-1 Pahal Singh-the injured, PW-2 Sunder-eyewitness, PW-3 Head Constable Rameshwar Prasad- who prepared the Chik F.I.R. and made entries in the G.D., PW-4 Dr. Ajay Kumar, who has medically examined the injured Pahal Singh on 22.02.1991 at 4:30 p.m. at Civil Hospital, Roorkee and prepared injury report Ext. Ka-4, PW-5 Smt. Vimla W/o Rajpal- eyewitness of the case, PW-6 Vijay Pal-scriber of the report Ext. Ka-7, PW-7 Constable Rampal-who has written an oral report of Rajpal on 21.02.1991 and made an entry in the G.D., a copy of which is Ext. Ka-8 and PW-8 S.I. Raj Kumar-who has investigated the case and after completing investigation, submitted charge sheet against the accused persons. 7. After that the oral and documentary evidence was put to the accused persons in the form of questions u/s 313 Cr.P.C. 4 who, in reply, denied the allegations made against them and have stated that they have been falsely implicated in the case. Oral evidence of DW-1 Balbira Singh was produced by the accused/appellants in their defence. 8. After appreciating all the evidence available on record and hearing the learned counsel for the parties, the learned Sessions Judge vide his impugned judgment and order dated 21.10.1992 has convicted the accused/appellants for the offence punishable u/s 307 read with Section 34 of I.P.C. and sentenced each of the accused/appellants, namely, Nawab, Azad and Katar to undergo rigorous imprisonment for a period of 4 years’ with fine of Rs. 1,000/- each and in default of payment of fine further one year’s R.I. was awarded. The appellant/accused Subhash was sentenced to undergo rigorous imprisonment for a period of two years. Aggrieved with the conviction and sentence awarded to them, the accused/ appellants have preferred this appeal. 9. During the pendency of this appeal the accused/appellant Katar was reported to be died. In this regard the Chief Judicial Magistrate, Haridwar has submitted a report dated 11.02.2004 annexing therewith a certificate of the Village Pradhan, Harchandpur that the accused/appellant Katar has been died. Hence the appeal preferred by the accused/ appellant Katar stood abated vide the orders of this High Court dated 15.03.2004. 10. Learned Counsel for the accused/appellants Sri Rajendra Singh, has argued that on the basis of the evidence produced by the prosecution and on the basis of the nature of the injuries as also on the circumstances of the case, no case of the offence punishable u/s 307 read with Section 34 I.P.C. is made out against the accused/ appellants instead an offence punishable u/s 324 read with Section 34 I.P.C. can be said to have been made against the accused/appellants. Learned counsel for the 5 accused/appellants has further argued that the accused Nawab remained confined in jail in connection with this crime for a considerable period of 6 months’ and 16 days’, the accused Azad remained confined for 2 months’ 6 days’. It is argued that the accused Subhash who was minor on the date of incident as his date of birth is 20.07.1977, hence on the date of occurrence his age was 13 years’ 7 months’. It is argued that the accused Subhash had also remained confined in jail for 12 days’ in connection with this crime. It is submitted that the Pahal Singh- injured and the Rajpal-complainant are the cousin brothers and the accused/ appellants are the nephews of the complainant Rajpal. The injured-Pahal Singh is uncle of the accused/ appellants and all are the members of same family and they are living altogether peacefully. After considering all the facts and circumstances and on the basis of the material available on the record and the oral evidence produced by the prosecution, I am of the view that the prosecution has not proved its case beyond reasonable doubt against the accused/appellants u/s 307 read with Section 34 I.P.C. rather the offence punishable u/s 324 read with Section 34 I.P.C. is proved against the accused/ appellants beyond reasonable doubt and the case u/s 324 read with Section 34 I.P.C. is made out against them. 11. At this juncture, Pahal Singh-injured who has been identified by Sri Parikshit Saini Advocate, has moved an application seeking permission for filing compromise and both the parties have moved a compromise application which are supported by the respective affidavits. The accused/appellants, namely Nawab, Azad and Subhash have been identified by their learned counsel Sri Rajendra Singh. Adv. Learned counsel for both the parties have submitted that 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 the members of the same family as the accused/appellants are the nephews of the injured Pahal 6 Singh and they are living in the joint family in the same house and they have got no problem or inimical terms in living with each other. 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- Pahal Singh and the accused persons are closely related to each-other, they are living in the same house in a joint family, 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. 12. In these circumstances, on the basis of the compromise arrived at between the parties the appeal deserves to be allowed, consequently the judgment & order dated 21.10.1992 passed by the Sessions Judge, Haridwar in Sessions Trial no. 170/1991, deserve to be set-aside. 13. Accordingly, the appeal is allowed. Judgment & order dated 21.10.1992 passed by the Sessions Judge, Haridwar in Sessions Trial no. 170/1991, is hereby set-aside. The accused/ appellants Nawab, Azad and Subhash are acquitted of the charge of offence punishable u/s 324 read with Section 34 I.P.C on the basis of the compromise arrived at in between the parties. The accused persons are on bail, they need not to surrender. Sureties are discharged. 14. Let a copy of this judgment, along with the record of the Court below, be sent back to the Trial Court. (Dharam Veer, J.) 19.08.2008 NCM: