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2010 DIGILAW 867 (PNJ)

Sewa Dass v. State of Punjab

2010-02-11

JITENDRA CHAUHAN

body2010
JUDGMENT JITENDRA CHAUHAN, J. (ORAL) 1. The present appeal has been directed against the judgment of conviction and order of sentence dated 4.6.2001 (hereinafter as ‘impugned judgment’) passed by the learned Additional Sessions Judge, Jalandhar (hereinafter as ‘trial Court’), whereby the accused-appellant stands convicted for the commission of offence punishable under Section 307 and 323 IPC and has been awarded sentence of rigorous imprisonment for a period of 5 years with a fine of Rs.2000/-under Section 307 IPC and in default of payment of fine, to further undergo rigorous imprisonment for a period of four months. He has been further sentenced to undergo rigorous imprisonment for a period of six months under Section 323 IPC. Both the substantive sentences have been ordered to run concurrently. 2. The brief facts of the prosecution case are that on 2.8.1998 at about 8.30 p.m., complainant-Deepak Kumar along with Mukesh Kumar had gone to the market of Allawalpur to purchase household articles. It being late evening, the market was well lit. They went to the Kiryana shop owned by Situ son of Muni Lal to purchase goods. Accused Sewa Dass, who was on a bicycle, came near them. His mother-in-law, namely, Darshna, who was holding Kahi in her hands, was sitting on the carrier of the bicycle. Accused stopped his bicycle and hurled an abuse and raised Lalkara that he will take revenge of his insult from the complainant. Darshna also raised a Lalkara and while handing over the kahi to the accused-Sewa Dass, exhorted him to teach a lesson to the complainant. Accused-Sewa Dass took Kahi from his mother-in-law and gave a blow from the sharp side in the middle of the head of the complainant. Resultantly, the blood started oozing out. Meanwhile, the accused gave another Kahi blow from the reverse side on the person of complainant which hit him on his back and head. The complainant raised raula whereupon, Mukesh Kumar came forward and tried to save the complainant. Accused-Sewa Dass also gave two Kahi blows on the person of said Mukesh Kumar from its reverse side which hit on his left arm and behind the shoulder. Both of them raised raula which attracted Jaswinder Kumar and others to the spot. Thereafter, accused-Sewa Singh and Darshna slipped away along with the Kahi. The complainant was shifted to the hospital where he was medically examined by Dr. Both of them raised raula which attracted Jaswinder Kumar and others to the spot. Thereafter, accused-Sewa Singh and Darshna slipped away along with the Kahi. The complainant was shifted to the hospital where he was medically examined by Dr. Rakesh Kumar (PW3), who immediately referred the injured-complainant to the Civil Hospital, Jalandhar, as he was unconscious and started convulsing. 3. On the basis of the complaint, Ex.PD, formal FIR, Ex.PD/2, was registered. Accused Sewa Dass was arrested while Darshna was found innocent. Charges under Sections 307 and 323 IPC were framed against the accused to which he pleaded not guilty and claimed trial. 4. In order to substantiate its case, the prosecution examined as many as 13 witnesses, namely, Dr. Kanwaljit Singh Bawa as PW1, Dalip Singh, Draftsman as PW2, Dr. Rakesh Kumar as PW3, Deepak Kumar as PW4, Dr. Charanjiv Singh as PW5, Banarsi Dass as PW6, Mukesh Kumar as PW7, C. Iqbal Singh as PW8, ASI Gurpartap Singh as PW9, C. Milkhi Ram as PW10, Dr. Ajay Yadav as PW11, Dr. Rakesh Kumar as PW12 and Subhash Chander as PW13. 5. Thereafter, the accused was examined under Section 313 Cr.P.C. while putting all the incriminating circumstances against him in the prosecution evidence wherein he denied all the allegations and claimed to be innocent. In defence, he examined Sukhdev Raj son of Nasib Chand as DW1. 6. After hearing learned counsel for both the parties, learned trial Court has convicted and sentenced the accused-appellant for the offence and term as indicated at the outset in para 1 hereinabove. 7. Learned counsel for the appellant has stated that there is no premeditation; the occurrence has taken place at the spur of the moment. The appellant is not a previous convict. He was on bail during the trial and has not misused the concession of bail. The appellant and the complainant are co-villagers and have been residing peacefully thereafter in the vicinity of each other. 8. Learned counsel for the appellant has further stated that the FIR in the instant case was registered on 3.8.1998. The appellant has undergone about six months of sentence and suffered protracted trial for more than 12 years. He has further stated that the appellant is a poor labourer and also the sole bread-earner in the family. The family survives on the earnings of the appellant itself. 9. The appellant has undergone about six months of sentence and suffered protracted trial for more than 12 years. He has further stated that the appellant is a poor labourer and also the sole bread-earner in the family. The family survives on the earnings of the appellant itself. 9. Learned counsel for the complainant has placed on record a compromise executed on 30.10.2010 duly signed by both the parties, which is supported with affidavits dated 30.10.2010 sworn by complainant-Deepak Kumar and injured-Mukesh Kumar, which are taken on record as Mark ‘A’, ‘B’ and ‘C’, respectively. According to condition No.4 of the compromise, the matter has been compromised by the parties on the intervention of the respectables in order to maintain peace and harmony in the village as both the parties are co-villagers. The complainant has decided not to pursue the criminal proceedings initiated by him against the appellant and further he has no objection if the accused-appellant is acquitted by this Court from the charge framed against him. 10. Learned State counsel also does not dispute the execution of compromise dated 30.10.2010. 11. Reliance has been placed on a decision rendered by Hon’ble the Supreme Court in Bankat and another V. State of Maharashtra, (2005) 1 SCC 343, wherein it has held as under :- “16. However, considering the fact that the parties have settled their dispute outside the Court, the fact that 10 years have elapsed from the date of the incident, and the further fact that the appellants have already undergone several months’ imprisonment, ends of justice would be met if the sentence of imprisonment is reduced to the period already undergone besides imposing a fine of Rs.5000 on each of the accused under Section 326 read with Section 34 IPC. In default of payment of fine, the appellants concerned shall undergo imprisonment for a further period of six 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.4000 also be paid to each of the injured as compensation.” 12. In the matters where parties have entered into compromise, Larger Bench of this Court in 'Kulwinder Singh and others V. State of Punjab and another' reported as 2007(3) RCR (Criminal) 1052, has taken the following view:- "32. Out of the fine amount, if realized, a sum of Rs.4000 also be paid to each of the injured as compensation.” 12. In the matters where parties have entered into compromise, Larger Bench of this Court in 'Kulwinder Singh and others V. State of Punjab and another' reported as 2007(3) RCR (Criminal) 1052, has taken the following view:- "32. The power under Section 482 of the Cr.P.C. is to be exercised Ex-Debitia Justitia to prevent an abuse of process of Court. There can neither be an exhaustive list nor the defined para-meters to enable a High Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The power under Section 482 of the Cr.P.C. has no limits. However, the High Court will exercise it sparingly and with utmost care and caution. The exercise of power has to be with circumspection and restrain. The Court is a vital and an extra-ordinary effective instrument to maintain and control social order. The Courts play role of paramount importance in achieving peace, harmony and ever-lasting congeniality in society. Resolution of a dispute by way of a compromise between two warring groups, therefore, should attract the immediate and prompt attention of a Court which should endeavour to give full effect to the same unless such compromise is abhorrent to lawful composition of the society or would promote savager." 13. In view of the above, keeping in view the protracted trial suffered by the appellant and after considering the compromise moved by the complainant, I am of the considered view that no purpose would be served in further incarcerating the appellant. The ends of justice would be sufficiently met if the appellant is released on the basis of compromise after reducing his sentence to the period already undergone, subject to the payment of enhanced fine of Rs.10,000/- to be paid to the complainant within a period of four months from the date of receipt of a certified copy of this order. 14. Accordingly, the present appeal is dismissed. However, the order of sentence stands modified to the extent indicated above. 15. Since the main appeal is decided as such, the misc. applications pending, if any, shall also stand disposed of. Appeal disposed of.