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
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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
.
‘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
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 theHigh 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 thefirst 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, wereconvicted only under offences which are
compoundable, it is now submitted on behalf
of the victim respondent No. 2 that the matterhas 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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