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2009 DIGILAW 369 (JK)

Manohar Lal v. State Of J. &K.

2009-07-29

MUZAFFAR HUSSAIN ATTAR

body2009
1. Cr.M.P. No. 28/2006 came up for consideration before the Court on 05.05.2009. In the application, the appellant prayed that the Compromise deed enclosed with the said application may be taken on record of the file and appeal be disposed of, accordingly. This court on 05.05.2009 ordered that without commenting on the merits of the application, the parties to compromise would appear before the Registrar Judicial for getting their statement recorded after proper verification. The note of the Registry is that the statement of complainant Kalu Ram, injured persons Romesh Chander, Som Dutt and Vishwa Nath have been recorded. Statement of the appellant has also been recorded. Statement of the parties have been placed on record of the appeal file. 2. In the compromise deed, it has been stated that on the intervention of elders of the community in order to have reconciliation and to restore amicable relations between the parties on the policy of forget and forgive, they have entered into compromise. The compromise deed also reveals that one other reason for entering into the compromise is that the father of the second party expired during the trial. It is specifically pleaded that no other influence has been exerted in reaching the compromise except the good intention to restore the previous normal relations between parties. It is further stated that parties are closely related to each other. 3. The appellant was charged for committing offence under section 307 RPC read with section 3/25 Indian Arms Act. On conclusion of the trial, appellant has been convicted by the learned Trial Judge for having committed offence under section 307 RPC by his judgment dated 31.10.2002, and has been sentenced to undergo imprisonment for two years and fine of Rs.30,000/- has also been imposed. In default of payment of fine, it was provided that the appellant shall undergo further simple imprisonment for six months. 4. Offence under section 307 RPC for which the appellant has been convicted is non-compoundable offence and in view of the statutory bar, the compromise entered into by the parties may not be in normal circumstances of the case entertained by the Court. 5. It is true that justice is to be administrated in accordance with law. 4. Offence under section 307 RPC for which the appellant has been convicted is non-compoundable offence and in view of the statutory bar, the compromise entered into by the parties may not be in normal circumstances of the case entertained by the Court. 5. It is true that justice is to be administrated in accordance with law. However, it is further true that there may be extraordinary circumstances or any real exceptional case may come before the Court wherein Court may allow the parties to enter into compromise to secure ends of justice. The case in hand falls in that rear and exceptional category. The parties are close relatives of each other and in order to have amicable and peaceful relations with each other and in order to ensure that enmity does not percolate down to future generation, they have entered into compromise. 6. The purpose of laws is to maintain and preserve the moral fabric of the society and to ensure that rule of law prevails and order is maintained in the society. The guilty after successful conclusion of trial is to be awarded appropriate punishment. That is what justice demands. But in the case of like nature where the parties are not only close relatives, but are also living in the same vicinity the purpose of law will be accomplished by allowing the parties to enter into compromise, if same is arrived at with the benign intention of restoring and maintaining the order in the society. Since the parties have also entered into compromise and the purpose underlying for awarding punishment is accomplished, this court being Superior Court has power to allow the parties to enter into compromise even in non-compoundable case to secure ends of justice. But this can be permitted, as already stated in extreme rare case where conscience of court assent same. 7. The need to grant such permission to enter into compromise is not required in compoundable offence. However, occasion for allowing compounding of non-compoundable offence does not arise in this case for the following reasons: 8. The prosecution case as projected is that the appellant and injured persons were accompanying the Barat from their village. While going along with other Bharatis, the appellant and injured persons had verbal altercation and both the parties left the Bharat and returned to their village. The prosecution case as projected is that the appellant and injured persons were accompanying the Barat from their village. While going along with other Bharatis, the appellant and injured persons had verbal altercation and both the parties left the Bharat and returned to their village. The further prosecution case is that when the injured persons reached near their house, the appellant came out from his house armed with his single barrel 12 bore gun and fired upon the injured persons who sustained injuries. They were admitted in Govt. Medical College, Jammu where they were treated. The occurrence took place on 11.07.1997 at about 10 a.m. in village Charuta to which appellant and the injured persons belong to. The case was registered in the Police Station, Jajjar Kotli on 12.07.1997 at 4:30 a.m. Copy of the FIR was sent to the learned Chief Judicial Magistrate, Jammu on 14.07.1997. The case under section 307 RPC and 3/25 Arms Act was registered. During investigation of the case, the statements of the injured persons were recorded. 9. Injury memo of Som Dutt reveals that he had a mark of injury on his right cheek and blood oozed out of it. In respect of Ramesh Kumar, the memo reveals the he had a mark of injury on his right leg and the injury memo of the Vishwa Nath shows that he had sustained injuries on upper part of his right leg. One more mark of the injury was found on his left arm in which also blood had clotted. Dr. Ramesh Khajuria in his statement has stated that injuries sustained by Vishwa Nath are simple in nature caused by some projectile object. He has further opined that injuries sustained by Som Lal were also simple in nature and caused by blunt object. About Ramesh, Dr. Ramesh Khajuria has further opined that the injuries sustained by him were simple in nature caused by projectile object. On cross examination he has stated that injuries mentioned in EXPW-RK may be possible by a fall on thorn bushes. About the injuries sustained by Ramesh, he has stated that these may be possible by fall on thorn bushes. Certificate issued by the Expert indicates that a 12 bore SBBL gun marked as F-546/97 has been found in the normal working condition. About the injuries sustained by Ramesh, he has stated that these may be possible by fall on thorn bushes. Certificate issued by the Expert indicates that a 12 bore SBBL gun marked as F-546/97 has been found in the normal working condition. He has further stated in the certificate that the said 12 bore gun has been fired through prior to its receipt in the laboratory. The certificate also reveals that cartridge case marked as F-543/97 had been fired through the 12 bore SBBL gun marked as F-543/97. Certificate further reveals that no definite opinion is possible with regard to the fired cartridge cases marked F-544/97 and F-545/97 due to lack of individual characteristic marks. 10. After framing of the charges against the appellant, the prosecution led evidence in support of his case. In his evidence, complainant stated that the accused and the injured persons including the witnesses were part of the Barat and were traveling in a bus from their village Charuta to Khatrui. It is further stated that when the vehicle reached at Domail the bus halted for sometime there, the appellant abused the said witness which resulted into arguments between them. It is stated that complainant-Kalu Ram was accompanied by his brother Romesh Chander and Vishwa Nath. It is further stated that on the basis of the enmity of the father of appellant-accused he started rebuking his brother Romesh Chander. It is further stated that the complainant along with his brothers came down from the bus and returned to their home. It is stated that when the complainant and his brother reached near the door of their house, the appellant came out and fired 2/3 shots on them, and resultantly, Vishwa Nath sustained injuries on his upper part of his leg, Som Lal also sustained injuries on his face and chest and Ramesh sustained injuries on his right arm and left leg, his right hand finger was also injured. 11. In cross examination the witnesses stated that the appellant fired upon them about a distance of 15-20 feet. It is further stated that after 2/3 days they were discharged from hospital. It was denied that there was enmity between the complainant and father of the appellant. 12. 11. In cross examination the witnesses stated that the appellant fired upon them about a distance of 15-20 feet. It is further stated that after 2/3 days they were discharged from hospital. It was denied that there was enmity between the complainant and father of the appellant. 12. The prosecution witness Ramesh in his statement has stated that on reaching at Domail there was an altercation with the appellant, thereafter, they returned to their home and did not accompany the Barat. On reaching near his house, the appellant fired with his gun and he sustained injuries on the left finger of his hand. He further stated that Som Dutt and Vishwa Nath also sustained injuries. In cross examination he has stated that there was no enmity between the parties. 13. Som Nath has stated that there was altercation between the appellant and the complainant. They did not accompany the Barat but returned to their home. On reaching the home, the appellant fired upon them, resultantly he sustained injuries and was admitted in the hospital at Bakshi Nagar, Jammu. It is further stated that on next day he was discharged from the hospital. 14. In cross examination he stated that the appellant fired from a distance of 10/12 feet and the bullets hit him on his right leg. The other prosecution witnesses are formal witnesses and some of them have not even supported the prosecution case. 15. On examination of the prosecution case and the evidence brought on record, it is found that there was some minor contradictions in the statement of the prosecution witnesses, However, the statements of the injured persons and the complainant, supported the prosecution case. Prosecution evidence thus established that the occurrence has taken place and injured sustained injuries, because of the fire shots which have been fired by the appellant. The prosecution has further proved beyond all shadow of doubts, that it was the appellant who fired upon the injured persons. 16. Heard learned counsel for the parties. Considered the matter. 17. The learned counsel for the appellant stated that a compromise has been entered into between the parties, thus, prays for allowing of this appeal and acquitting the appellant of the charges. He further submits that in alternative that offence under section 307 RPC is not made out. 18. 16. Heard learned counsel for the parties. Considered the matter. 17. The learned counsel for the appellant stated that a compromise has been entered into between the parties, thus, prays for allowing of this appeal and acquitting the appellant of the charges. He further submits that in alternative that offence under section 307 RPC is not made out. 18. The appellant has been charged under section 307 RPC read with section 3/25 India Arms Act, but has been convicted only under section 307 RPC by the learned Trial Judge. The offence under section 3/25 of Indian Arms act was, thus, not proved against the appellant. Learned counsel for the appellant in support of his submission that offence under section 307 RPC is neither made out nor proved against the appellant has referred to case titled Bhagwan Din and ors. V. State AIR 1967 Allahabad 580. 19. In the said case, it was held that mere fact that the accused caused injuries by firearm will not bring case u/s 307 RPC. It was also held that intention or knowledge to cause death as contemplated in section 307 RPC must be established. It was further held that the burden of proof lies on prosecution. In the fact of that case doctor opined that the bullet injuries were simple in nature. It was also held that the accused cannot be said to have been committed offence u/s 307 RPC but only u/s 324 RPC. 20. Looking back to the facts of this case, there is not even an iota of evidence on the file to state that the appellant had either intention to kill any of the injured persons or had any knowledge that such act would have caused injury which would have resulted into the death of the injured persons. The injuries sustained by the injured persons are not on the vital parts of the body and are simple in nature. Had there been any intention or any knowledge to the appellant that his act must result into the death of any of the injured persons, then he would have necessarily fired on the vital parts of the body but there is no such injury. 21. Learned counsel for the appellant has also referred to a case titled Manoj and anr. vs. State of Madhya Pradesh, 2009 CRL.L.J 344. 22. 21. Learned counsel for the appellant has also referred to a case titled Manoj and anr. vs. State of Madhya Pradesh, 2009 CRL.L.J 344. 22. The prosecution case is clear that there is no injury on the vital parts of the injured person. It can be safely held that the accused had neither intention to kill nor had any knowledge that his act of causing injury would result into the death of any of the injured persons. 23. Offence under section 307 RPC has, thus, not been made out against the appellant. Judgment of Learned Trial Judge to this extent is set aside. 24. On the appraisal of the prosecution evidence one would reach to irresistible conclusion that the appellant has committed offence punishable u/s 324 RPC. The appellant is, accordingly, convicted under section 324 RPC and is ordered to undergo six months simple imprisonment. 25. The fact is that the parties have entered into compromise and, the offence under section 324 RPC can be compounded with permission of the Court. In view of the circumstances enumerated in the compromise deed, compounding of the offence is permitted. 26. In view of the order permitting the compounding of offence under section 324 RPC, the conviction and sentence recorded against the appellant will not hold good. 27. The appeal stands disposed of, accordingly, and conviction and sentence recorded against appellant is set aside. 28. Bail bond shall stand, accordingly, discharged.