Abdul Sattar & others vs State of H.P.

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.

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.

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 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.

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 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.

I have heard the learned counsel for the parties and gone the record carefully.

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 be dismissed.

To appreciate the arguments of learned Additional Advocate General and learned defence counsel, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses.

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 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.

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."

Similarly, the three Judges Bench of Hon''ble Supreme Court in Surendra Nath Mohanty vs. State of Orissa, 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 rest 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."

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 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 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 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.

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.

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

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 crossexamination, 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.

PW-8, Head Constable, Shiv Kumar, has investigated the case and stated that on the alleged day, he received a telephonic information regarding occurrence 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.

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 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.

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.

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 passed by the learned Additional Sessions Judge, Fast Track Court, Shimla, is set aside.

Accordingly, the present appeals are disposed of in the aforesaid terms, so also the pending application (s) if any.