Chhaganbhai Chhikabhai Bhangi and 2 vs State of Gujarat and 1

Honorable Mr. Justice MD Shah

Heard learned senior advocate K.J. Shethna for the appellants, learned APP Mr. L.R. Pujari for the respondent No.1-State and learned advocate Mr. Devang Joshi for the respondent No. 2-original complainant. As the appellant No.1-original accused No.1 is expired on 6.11.2011, appeal is abated qua appellant No.1-original accused No.1.

Learned advocate Mr. Devang Joshi for the complainant submitted that the matter is settled between the parties and permission be granted for compounding the offence punishable under Sections 323 and 504 of Indian Penal Code. He has produced the affidavits of the complainant, the same are ordered to be taken on record. The complainant is also present before this Court and he is identified by learned advocate Mr. Devang Joshi. The complainant also submitted that after lapse of time he has good relations with accused persons and now he has no grievance against the accused persons and so he requested to give permission for compounding of the offence.

As far as offence punishable u/s 324 of IPC is concerned, the alleged incident took place on 25.10.1990 under the Old Act and with the permission of the Court, the complainant - injured person and accused persons can compound the offence punishable u/s 324 of IPC. As the matter is settled between the parties, permission can be granted to compound the offence punishable u/s 324 of IPC. Now so far as offence punishable u/s 307 of IPC is concerned, the same is not fall in the category of compounding of offences and so question does not arise to grant permission for compounding the offence.

Learned Senior Advocate Mr. K.J. Shethna for the appellants-accused persons took this Court through the material evidence of injured person P.W.No.1 Maheshbhai Bababhai Harijan Exh.11 and evidence of P.W. No. 2 Madhuben Solanki Exh.16 who happened to be the sister of P.W. No. 1 Maheshbhai Bababhai Harijan. As per the evidence of P.W. No. 1 Maheshbhai and evidence of P.W. No. 2 Madhuben, accused No.1 Chhaganbhai came first and made altercation with the complainant and gave the knife injury on the left hypochondrium which would proved to be fatal. He submitted that considering the evidence of both these witnesses, the accused No. 2 and 3 came later on and so they could not be convicted for the offence punishable under Sections 307, 323, 324 read with Section 114 of IPC, but they should be held guilty for their individual act.

While perusing the evidence of P.W. No. 1 Maheshbhai and P.W. No. 2 Madhuben, sister of complainant, who were eye-witness of the incident, it transpires from the evidence of both these witnesses that, at the time of causing injury by accused No. 1 to complainant Maheshbhai, accused No. 2 Jagdish and accused No. 3 Pappu @ Jayanti were not present but they came afterwards, therefore they have not abetted the offence u/s 307 of IPC and cannot be convicted with the aid of Section 114 of IPC. It is submitted by learned senior advocate Mr. Shethna that they should be held guilty for their individual act. As far as evidence of these witnesses are concerned, at first point of time the accused No. 1 has attacked on the complainant with knife blow and the accused No. 2 came with knife and the accused No. 3 came with iron rode. The trial court imposed vicarious liability of offence punishable u/s 114 of IPC and the trial court has convicted all the accused for the offence punishable under Sections 307, 323, 324 read with Section 114 of IPC. Considering the evidence of injured person Maheshbhai Bababhai Harijan, in the opinion of this Court, later on the accused No.2 and 3 came and so they should be liable for their individual act and therefore the accused No.2 and 3 could not be held vicariously liable for the offence punishable u/s 307 of IPC with aid of Section 114 of IPC.

It is alleged that the accused No.2 had caused injury with knife on the right elbow of injured Maheshbhai and while trying to save himself from the fatal injuries, he received simple injuries on right elbow. As per the prosecution case, the accused No.2 had caused only one injury on right elbow of Maheshbhai. As far as accused No.3 is concerned, as per the prosecution case, he caused injury with iron rode on forehead of Maheshbhai. As per the medical evidence this injury is also simple injury.

Considering this evidence on record and also considering the medical evidence, in the opinion of this Court, the case of accused No.2 and 3 falls u/s 324 of IPC, and as discussed above, as the alleged incident took place in 1990, the offence u/s 324 of IPC can be compounded with the permission of the Court.

In view of the above, the appeal is partly allowed. The impugned judgment and order of conviction and sentence dated 4.7.1995 passed by the learned Additional Sessions Judge, City Sessions Court No.7, Ahmedabad for the offence punishable u/s 307 read with Section 114 of Indian Penal Code qua accused No.2 and 3 is hereby quashed and set aside and original accused No.2 and 3 are held guilty for the offence punishable u/s 324 of Indian Penal Code. However, as the matter is settled between the complainant with the accused persons, permission is granted for compounding the offence punishable u/s 324 of IPC. The accused No.2 and 3 are acquitted for the offence punishable u/s 324 of IPC. They are on bail and hence their bail bond shall stand cancelled. So far as original accused No.1 is concerned, he is expired on 6.11.2011 and so appeal is abated qua appellant No.1 - original accused No.1. Registry is directed to send Record & Proceedings to the trial court forthwith.