IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL COMPOUNIDNG APPLICATION NO. 1266/2009 COMPROMISE APPLICATION NO. 1267/2009 In CRIMINAL APPEAL No. 429 of 2001 (Old No. 2695/1998) Diwani Ram .…. Appellant Versus State …… Respondent November 27, 2009 Mr. A.S. Gill, Advocate for the appellant. Mr. M.A. Khan, Brief Holder for the State. Mr. Milind Raj, Advocate for the injured. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 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 30.11.1998 passed by Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No. 52 of 1991, State v. Diwani Ram, whereby the appellant Diwani Ram has been convicted under Section 307 of Indian Penal Code, 1860 (for short, I.P.C.) and sentenced to undergo R.I. for four years. 2. In brief, the case of prosecution is that complainant Trilok Ram (PW1), Kedari Ram (PW2), Ghanshyam and Harish Ram (PW3) were sitting in the house of Kedari Ram on 8.8.1990 at about 9.30 pm, when the accused appellant Diwani Ram armed with a khukhri came there from the side of his house through the tubewell hurling abuses on Kedari Ram and alleged him that he was gradually encroaching upon his field and attacked him with the khukhri. Wife of Diwani Ram also came at the place of occurrence. When the other aforesaid persons who were present on the spot intervened in the matter, then the accused appellant hurled abuses on them and also attacked them with the khukhri. The complainant and the other persons present on the spot raised the alarm. Thereafter other villagers came at the place of occurrence and the accused appellant was stopped with much effort. Thereafter he ran away towards his house along with the khukhri. The accused appellant was identified by the complainant and other witnesses in the moonlight. With the aforesaid averments FIR Ex. Ka-1 was lodged by PW1 Trilok Ram on 8.8.1990 at 11.50 pm. 3. On the basis of the FIR Ex. Ka-1, the chick FIR Ex. Ka-7 was prepared on the same day by Head Moharrir Jay Prakash Sharma. Necessary entries were also made by him in the GD. Copy of GD is Ex. Ka-8. Injured Kedari Ram was medically examined by PW4 Dr. K.K. Joshi on 9.8.1990 at 12.55 am, who also prepared the medical report Ex. Ka-2. He was referred to Civil Hospital, Haldwani where he was examined by PW5 Dr. J.S. Pangti on 9.8.1990 at 12 noon and prepared the medical report Ex. Ka-3. 4. Investigation of this case was entrusted to S.I. Shiv Singh Gusain (PW8), who during the course of investigation recovered the khukhri from the house of the accused appellant on 11.8.1990 and prepared the fard Ex. Ka-4. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-5 on the pointing out of PW2 Kedari Ram. He recorded the statements of the witnesses during the course of investigation and after completing the investigation filed the chargesheet Ex. Ka-6 against the accused appellant. 5. Learned Munsif Magistrate (1st Class), Haldwani, Nainital after giving the necessary copies of the documents to the accused appellant as prescribed 2 under Section 207 Cr.P.C. committed the case to the Court of Sessions on 14.2.1991. 6. On 29.6.1992, learned Sessions Judge, Nainital framed the charge against the accused appellant under Section 307 IPC. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed to be tried. Lateron the trial of this case was transferred to Special Judge/Additional Sessions Judge, Nainital for its disposal according to law. 7. To prove its case, the prosecution has examined PW1 Trilok Ram, the complainant; PW2 Kedari Ram, an injured witness; PW3 Harish Ram, another eyewitness; PW4 Dr. K.K. Joshi, who medically examined Kedari Ram and prepared the medical report Ex. Ka-2; PW5 Dr. J.S. Pangti, who also medically examined Kedari Ram when he was referred and prepared the medical report Ex. Ka-3; PW6 Kalu Ram; PW7 Jagdish Ram and PW8 S.I. Shiv Singh Gusain, the I.O. of the case. 8. Thereafter, statement of the accused appellant was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put him in question form, who denied the allegations made against him and stated that he was falsely implicated in the case and further stated that Harish Ram, etc. had come to his house and tried to remove the tubewell. When he resisted they beaten him as well as his wife and to in order to get rid of any case of this incident, they slapped a false case on him. In defence he filed the medical report of his injuries Ex. Kha-1, medical report of the injuries of his wife Smt. Chandra Kala Ex. Kha-2, copy of the FIR Ex. Kha-3 lodged by him against the complainant PW1 Trilok Ram, PW2 Kedari Ram, PW3 Harish Ram and some other persons and copy 3 of the GD Ex. Kha-4. However, no witness was examined in defence. 9. After hearing learned counsel for the parties and after appreciating the evidence available on record, the learned Special Judge/Additional Sessions Judge, Nainital vide his judgment and order dated 30.11.1998 convicted and sentenced to the accused appellant as discussed above. Against the aforesaid judgment and order dated 30.11.1998, the accused appellant has preferred the present appeal. 10. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 11. Learned Counsel for the accused appellant submitted that on the basis of the evidence adduced on behalf of the prosecution, no case under Section 307 IPC is made out against the accused appellant and at the most, only the offence under Section 324 IPC is made out. 12. I find substance in the submission of learned Counsel for the accused appellant due to the reason that injuries shown in the injury reports of injured Kedari Ram were simple in nature and they were not dangerous to life. Besides this, the evidence adduced on record by the prosecution shows that the accused appellant did not cause the injuires with intention to kill the injured Kedari Ram (PW2). Therefore, the present case falls under Section 324 IPC and not under Section 307 IPC as has been held by the trial court. 13. Parties have filed compromise application and compounding application stating therein that they have entered into compromise and the dispute has now 4 amicably been settled between them outside the court. Compromise application is duly supported by the affidavit of injured Kedari Ram (PW2) and the accused appellant Diwani Ram. Injured Kedari Ram (PW2) has stated in his affidavit that he had suffered only simple injuries in the said incident. It has been further stated by both the parties that now they are living peacefully and have cordial relation with each other. Therefore, learned Counsel for the parties have submitted that the appeal may be decided in terms of the compromise. 14. Offence under Section 324 IPC is compoundable. Section 320 of CrPC provides that under Section 324 IPC, the offence can be compounded by the person to whom the hurt is caused. 15. Therefore, in view of the facts and circumstances of the case and the legal proposition, the compounding application deserves to be allowed and the appeal is liable to be decided in terms of the compromise arrived at between the parties. Accordingly, the compounding application is allowed. The compromise arrived at between the parties is accepted and the offence under Section 324 IPC is accordingly compouned on the basis of the compromise filed by the parties and accepted by this Court. 16. Resultantly, the judgment and order dated 30.11.1998 passed by the Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No. 52 of 1991, State v. Diwani Ram, convicting the appellant Diwani Ram under Section 307 IPC is herby set aside and sentence to undergo R.I. for four years is hereby also quashed. The appellant Diwani Ram has been found guilty only for the offence punishable under Section 324 IPC. Since both the parites have entered 5 into compromise which has been accepted by this Court and the said offence under Section 324 IPC is compounded, therefore, the accused appellant Diwani Ram is acquitted of the charge of offence punishable under Section 324 IPC. The appeal is accordingly disposed of in terms of the compromise arrived at between the parties. Appellant is on bail. His bail bonds are cancelled. He need not surrender unless required in any other case. 17. A copy of this order be sent to the trial court for its compliance. Let the lower court record be sent back. (Dharam Veer, J.) 27.11.2009 PRABODH 6