Abdul Sattar & Others vs State Of H.P on 19 June, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 468 of 2007
Cr. Appeal No. 474 of 2007
Reserved on: 12.06.2017
Decided on: 19.06.2017

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Cr. Appeal No. 468 of 2007

Abdul Sattar others
…..Appellants

Versus
State of H.P.

……Respondent
Cr. Appeal No. 474 of 2007

Anver others
…..Appellants
Versus
State of H.P.

r ……Respondent

_
Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? No.

_
For the appellants : Mr. Bimal Gupta, Sr. Advocate
with Mr. Vineet Vashishta,

Advocate, in Cr. Appeal No.
468 of 2007.

Ms. Sheetal Vyas, Advocate,

vice Mr. Anoop Chitkara,
Advocate, in Cr. Appeal No.
474 of 2007.

For the respondent : Mr. Virender K. Verma, Addl.

AG with Mr. Pushpinder Jaswal,
Dy. AG and Mr. Rajat Chauhan,
Law Officer, for the respondent
in both the appeals.

Chander Bhusan Barowalia, Judge.

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Both the criminal appeals are arising out of the

same judgment and common questions of law and facts

are involved in the same, hence, both these appeals were

.

taken up together for hearing and are being disposed of by

this common judgment.

2. The present criminal appeals, under Section

374 (2) of the Code of Criminal Procedure, 1908, have been

maintained by the appellants/accused persons (hereinafter

to be called as “accused persons”), against the judgment

dated 30.11.2007, passed by learned Additional Sessions

Judge (FTC) Shimla, in Sessions trial No. 2-S/7 of 2007/05,

whereby the accused persons were held guilty for the

commission of offences punishable under Sections 147,

452/149, 342/149, 323/149 and 427/149 IPC, with a prayer to

set aside the same.

3. Briefly the facts of the case are that on 17th

October, 2004, at about 12 noon, Sh. Suresh

Kumar/complainant, who is running a karyana shop in

Idgah Colony, Lakkar Bazar, Shimla, (hereinafter to be

called as “the complainant”) made a statement, Ext. PA,

before the Police that on 17.10.2004, at about 11 a.m., a

mob of 15-20 people, consisting men and women, forcibly

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entered into his shop and started beating him by giving

kicks and fist blows. The mob of people was instigated by

S/Sh Anwar, Dilsad and Nasir etc. and they were saying

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‘Maro Maro’, they also forcibly put the face of the

complainant into a bag of flour and after intervention of

S/Sh. Nirmal, Lal Mohar Sahu and Arvind etc, the

complainant was saved from the paws of the miscreants.

The assailants have also damaged the articles lying inside

the shop and when he tried to ring up the Police, the

accused persons wrongly confined him to his shop and

while leaving the shop, they proclaimed that he should

leave the shop and go back to his state, Bihar. However,

later on his wife managed to inform the Police on

telephone. On the basis of complainant’s statement, FIR No.

315/04, Ext. PW-7/A was registered against the accused

persons. During further investigation, complainant was got

medically examined and MLC, Ext. PW-6/B was obtained,

wherein two simple injuries caused by a blunt weapon were

detected on the person of the complainant. Site plan of the

spot was prepared and photographs of the site of the crime

were got clicked. Statements of the witnesses under Section

161 Cr.P.C. were recorded and after completion of

investigation challan was presented before the Court.

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4. Prosecution, in order to prove its case, examined

as many as 8 witnesses. Statements of accused persons

were recorded under Section 313 Cr.P.C, wherein they

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denied the prosecution case and claimed innocence.

Accused persons did not lead any defence evidence. The

learned trial Court, vide impugned judgment dated

30.11.2007, convicted the accused persons for the

READ  Savitaben Maheshbhai Baldaniya vs State Of Gujarat & 2 on 27 March, 2017

commission of offences punishable under Sections 147,

452/129, 342/149, 323/149 and 427/149 IPC, hence the

present appeal.

5. I have heard the learned counsel for the parties

and gone the record carefully.

6. Learned counsel appearing on behalf of the

appellants have argued that as the matter stands

compromised, the judgment of conviction, passed by

learned trial Court is required to set aside and present

appellants are required to be acquitted for the commission

of offences they are charged with. On the other hand

learned Additional Advocate General has argued that as

the offence is not compoundable, the compounding

cannot be allowed. Further the prosecution has proved the

guilt of the accused persons beyond the shadow of

reasonable doubt, hence present appeals are required to

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be dismissed.

7. To appreciate the arguments of learned

Additional Advocate General and learned defence

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counsel, this Court has gone through the record in detail

and minutely scrutinized the statements of the witnesses.

8. At the very outset, it is apt to consider the law, as

reported in M.D. BalalMian vs. State of Bihar, 2001(3) Crimes,

419, which reads thus:

“2. Three persons were convicted among
whom Mohammed NehalMian was convicted
under
Section 376 Indian Penal Code and the
other two were convicted only under Sections
r 325 and 323
of the Indian Penal Code. As the

High Court confirmed the conviction and
sentence the three persons approached this
Court for special leave. We found no scope
for granting special leave in respect of the

first petitioner Mohammed NehalMian and
hence we dismissed the special leave
petition as against his as per order dated
26.09.2000.

3. As the present appellants, Mr. BalalMian
and Mohammed BasheerMian, were

convicted only under offences which are
compoundable, it is now submitted on behalf
of the victim respondent No. 2 that the matter

has been compounded between the
appellants and herself. We accept the
aforesaid submission made by the counsel on
behalf of respondent No. 2. Both sides have
sworn to affidavit for the said purpose. We
accord permission for compounding the
offences.”

9. Similarly, the three Judges Bench of Hon’ble

Supreme Court in Surendra Nath Mohanty vs. State of Orissa,

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1999(5) SCC, 238 have held as under:

” For compounding of the offences
punishable under
the Indian Penal Code,
complete scheme is provided under
Section
320 of the Code of Criminal Procedure, 1973.

.

Sub-Section (1) of Section 320 provides that

the offences mentioned in the table provided
thereunder can be compounded by the
persons mentioned in column No. 3 of the
said table. Further, sub-Section (2) provides

that the offences mentioned in the table
could be compounded by the victim with the
permission of the Court. As against this, sub-
Section (9) specifically provides that “no

offence shall be compounded except as
provided by the Section.” In view of the
aforesaid legislative mandate, only the
offences which are covered by table 1 or 2 as
stated above can be compounded and the
rrest of the offences punishable under
Indian

Penal Code could not be compounded.

…However, considering the fact that
parties have settled their dispute outside the
Court and fact that the 10 years have elapsed

from the date of the incident and the further
fact that appellants have already undergone
3 months imprisonment as per the sentence
imposed on them, we think that ends of

justice would be met if the sentence of
imprisonment is reduced to the period

already undergone besides imposing a fine
of Rs. 5,000/- on each of the accused under
Section 326 read with Section 34 Indian Penal

Code. We reduce the sentence as indicated
above and direct that in default of payment
of fine, the appellant concerned shall
undergo simple imprisonment for a further
period of three months. We also refrain from
imposing any separate sentence on the other
counts of offences. Out of the fine amount, if
realized, a sum of Rs. 9,000/- also be paid to
the injured as compensation.”

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10. At the same point of time, this Court has also

gone through the evidence, as come on record.

Complainant/injured, Suresh Kumar, while appearing in the

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witness box as PW-1, has stated that he runs a karyana shop

in the Idgah Colony and on 17.10.2004, at about 11.00 a.m.,

a mob of 15-20 persons forcibly entered into his shop and

started beating him and damaging his belongings lying

inside the shop, they were also saying ‘Maro Maro’. Due to

said occurrence, he received injuries on various parts of his

body and became unconscious. The accused persons

have also forcibly put his mouth into a bag of flour. They

also broke the wire of the STD booth, pulled out the cash

box from the counter and took away 5-6 thousand rupees.

He deposed that on hearing the noise, his wife rushed to the

spot and informed the Police. Thereafter he was medically

examined and x-rayed. He further deposed that total loss

suffered by him was assessed to Rs. 500/- to 1000/-, besides

this, Rs. 5000/- to 6000/- were also stolen by the accused

persons, which was the sale of that day and previous day.

In his cross-examination, he feigned ignorance as to which

particular accused took away the cash from the cash box.

He has also feigned ignorance about the exact amount

lying inside the case box. He denied that he has falsely

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implicating the accused persons, as they have complained

against him that he indulges in illegal sale etc. of Depot

articles. He further stated that after the said occurrence, he

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regained his consciousness itself. He further stated that the

accused persons shut the door of his shop by putting the

wooden planks (phattas). He feigned ignorance as to by

whom the phattas were opened.

11. PW-2, Lal Manohar, supported the case of the

prosecution in its totality. He has stated that on the said day,

there was lot of noise on the spot. He further stated that

after the said occurrence, the wife of Suresh Kumar came

to the spot and intimated the Police. He feigned ignorance

as to which particular accused closed the shop. He

deposed that when the Police came to the spot, Suresh

Kumar could be taken to the hospital. He feigned

ignorance as to how much money was unfairly removed by

the accused persons. In his cross-examination, he has stated

that he purchases the ration from the shop of the

complainant. He further stated that there is a small counter

in front portion of the shop of the complainant. He further

deposed that he has not seen any of the accused persons

taking away the cash.

12. PW-5, Deepak Gupta, has deposed that he also

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runs a shop in Idgah Colony and his shop is about 10 steps

away from the shop of the complainant. He further

deposed that on the alleged day, he was present in his

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shop and on hearing noise from the shop of the

complainant, he rushed to call his wife. He feigned

ignorance, as to who were the members of the crowd. In his

cross-examination, he denied that he saw the accused

persons inside the shop of the complainant, however he

admitted that he simply saw the crowd. He admitted that

he know accused as they live in his Mohalla. He feigned

ignorance about the fact that the accused persons given

beatings to the complainant. He stated that he has not

seen any injury on the person of the complainant.

13. PW-3, Shiva Soni, wife of the complainant, has

deposed that her husband had told her that the accused

persons have taken away the money. In his cross-

examination, she stated that Shakeela and Deepak has

informed her about the incident and after reaching the

shop, she telephoned the Police. She further deposed that

when she reached the spot, the accused persons were not

there. She denied that she has no knowledge about the

occurrence and informed the Police as per the information

given by Shakeela.

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14. PW-8, Head Constable, Shiv Kumar, has

investigated the case and stated that on the alleged day,

he received a telephonic information regarding occurrence

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on the shop of Suresh Kumar in Idgah Colony. After the said

information, he alongwith Constable Surinder Kumar went

to the spot and found Suresh Kumar there in injured

condition. He stated that the complainant made the

statement Ext. PA before him and thereafter he made the

endorsement, Ext. PW-8/A and sent it through Constable

Surinder Kumar to the Police Station for registration of FIR.

Thereafter, the application, Ext. PW-6/A, was written and

injured was sent for medical examination to IGMC, Shimla

and after the injured returned from the hospital, spot map,

Ext. PW-8/B was prepared. The statements of the witnesses

under Section 161 Cr.P.C were recorded and on the basis of

supplementary statement made by the complainant,

Section 395 IPC was added. He further stated that stolen

articles could not be recovered, as it was not clear as to

which particular accused has taken away the same. In his

cross-examination, he deposed that when he reached the

spot, no other person was inside the shop, however 3-4

persons were standing outside the shop and the cash box

was lying on the floor.

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15. At this moment, it is also apt to mention the

statement of the complainant, which he has furnished

before this Court, wherein he specifically stated that he has

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compromised the matter with the accused persons and as

they are residing at the same place, wants to live

peacefully, do not want to pursue the case against each

other.

16. Taking into consideration the averments made

hereinabove, as well as the statements of the witnesses, this

Court finds that the prosecution has failed to bring home

the guilt of the accused persons beyond the shadow of

reasonable doubt, as it has not come on record that who

have entered into the shop of the complainant. Further PW-

2 and PW-5, who were stated to be the eye witnesses of the

spot, have not named the accused persons, thus there is no

material evidence to come to the definite conclusion that it

was the accused persons only, who have committed the

offence. Otherwise also the offence is personal in nature

and even the complainant has stated that he do not want

to arraigns the appellants any more, as compromise has

been arrived at between them, in order to maintain peace

in neighborhood. Thus, benefit of that definitely goes to the

accused.

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17. In view of the aforesaid decisions of the Hon’ble

Supreme Court and the discussion made hereinabove, the

present appeals are allowed and the judgment of conviction

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passed by the learned Additional Sessions Judge, Fast Track

Court, Shimla, is set aside.

18. Accordingly, the present appeals are disposed of in

the aforesaid terms, so also the pending application (s) if any.

(Chander Bhusan Barowalia)
Judge
19th June, 2017
(raman)

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