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2014 DIGILAW 443 (ALL)

Lautoo v. State of U. P.

2014-02-10

RAMESH SINHA

body2014
Ramesh Sinha, J. Heard Sri Sarwar Khan, learned counsel for the appellant, Sri Mohd. Shadab Khan, learned counsel for the complainant and Sri Vinod Sharma, learned A.G.A. for the State. 2. This appeal has been filed against the judgment and order dated 24.8.1982 passed by IIIrd Additional Sessions Judge, Ghazipur in Session Trial No. 223 of 1980 convicting and sentencing the appellant under Section 307 I.P.C. for three years rigorous imprisonment. 3. The prosecution case in brief is that the complainant Ram Narain Seth is the resident of village Bhimapar, police station Saidpur, district Ghazipur. On 11.12.1978, the complainant was going to take betel after closing his cloth shop. Sri Ram Narain Seth was chewing betel in front of the wine shop in Bhimapar at about 6:30 p.m. The accused Lautoo resident of village Majdooha met him there and asked the complainant to sell some cloth on credit as he had no money and the winter season was at peak. The complainant showed his inability with the contention that he had no sufficient capital for this purpose. Thereupon, the accused made a fire with country made pistol with intent to commit murder of the complainant. The pellets of the country made pistol hit in the right leg of the complainant and he fell down on the ground after sustaining injuries. The complainant raised alarm and on hearing the noise Sri Shanker, Jagnarain and other arrived there and saw the occurrence in the light of electric bulb. They had seen and recognized the accused very well. 4. The complainant got prepared the written report Ex. Ka.1 from Ramji Seth of Bhimapar and presented the same at police station Saidpur. On the basis of the said written report, the Chick report Ex. Ka. 5 was prepared on 12.12.1978 at 2:15 a.m. The complainant was sent to P.H.C. Saidpur for medical examination He was examined by Dr. B.P. Gupta, who prepared the injury report Ex. Ka.3 on 12.12.1978 at 8:30 a.m. 5. The injuries found on the person of injured Ram Narain are as follows:- "1. Lacerated wound 1 cm. x 2 c.m. x muscle deep present on outer part of right leg on upper portion near the right knee joint. 2. Multiple abrasion encircling the injury No.1 5 x 4 and ½ cm in diameter on right leg. Duration one day. Injury grievous." 6. Lacerated wound 1 cm. x 2 c.m. x muscle deep present on outer part of right leg on upper portion near the right knee joint. 2. Multiple abrasion encircling the injury No.1 5 x 4 and ½ cm in diameter on right leg. Duration one day. Injury grievous." 6. The investigation of the case was entrusted to O.P. Rai, S.O. who recorded the statement of the complainant in the hospital immediately on 12.12.1978. 7. The I.O. recorded the statement of witness Jagnarain Seth on 13.12.1978 in village Bhimapar. He made local inspection and prepared the site plan (Ex. Ka. 4) on 13.12.1978. Thereafter he was transferred. Thereafter, the investigation was entrusted to S.I. R.P. Saroj. The leg of the injured was X-rayed by Dr. P.C. Srivastava, Radiologist, who found pellets in the leg of the complainant. He prepared the X-ray report Ex. Ka.2 and the X-ray plate material (Ex. Ka.1). 8. The I.O. completed the investigation and submitted the charge sheet (Ex. Ka.7) on 28.12.1978. 9. The accused was charged with the offence punishable under Section 307 I.P.C. He pleaded not guilty and alleged that he had not committed the offence and that he was falsely implicated on account of enmity. 10. The prosecution in support of its case examined Shanker as P.W.1, Ram Narain complainant as P.W.2, eye witness Jag Narain as P.W.3, Dr. P.C. Srivastava as P.W.4, Dr. P.B. Gupta as P.W. 5, I.O. O.P. Rai S.O. as P.W.6 and H.C. Dhanushdhari as P.W.7. No one has been examined in defence. The accused has filed the extract of copy of the family register (Ex. Kha.1) of the witness Jagnarain. 11. The witness Shanker P.W.1 was declared hostile as he had not supported the prosecution story. 12. Learned counsel for the appellant has submitted that during the pendency of the appeal, the complainant and the appellant has compromised the matter and they have settled their dispute amicably and have filed a joint compromise on 2.8.2003 along with the joint affidavit which is available on record. He further submits that on 22.1.2012, an application for compounding the offence was also filed by the complainant through his counsel Sri Mohd. Shadab Khan which is also on record. He further submits that as per the medical examination report of the injured, it is apparent that the injuries sustained by the injured are on non vital part of the body, i.e., right leg. Shadab Khan which is also on record. He further submits that as per the medical examination report of the injured, it is apparent that the injuries sustained by the injured are on non vital part of the body, i.e., right leg. Only some pellets were found on the leg and the trial court has erred in convicting the appellant under Section 307 I.P.C. as the case cannot travel beyond Section 324 I.P.C. He further submits that as the dispute has already been compromised between the parties, the said conviction and sentence of the appellant be set aside. In support of his submission he has placed reliance on the judgment of the Apex Court in the case of Manoj & another versus State of M.P. reported in 2008 (3) JIC 343 (SC) and has drawn the attention of the Court towards paras-14 and 15 of the aforesaid judgment which are quoted hereinbelow:- "14. The appellants and the complainant are residents of the same village and with the intervention of the village panchayat the complainant has compounded the offence with the appellants and now he has no grievance against them. The appellants and the complainant have categorically stated in their affidavits filed before us that after the incident they have developed family relations and they wish to reside peacefully in the village in future without any kind of disruption in their future lives. 15. We are satisfied that the complainant has voluntarily desired to compound the offence with the appellants for sufficient and genuine reasons stated in their respective affidavits and such compounding is legal and valid. We allow the parties to compound the offence under Section 324 I.P.C. Criminal Miscellaneous Petition No. 4257/2008 stands, accordingly, allowed. In view of the compounding, the conviction and sentence is set aside. The appellants, who are in jail undergoing sentence, shall be set free forthwith, if not required in any other case. The appeal is disposed of accordingly." 13. Learned counsel for the complainant has admitted the said fact of the compromise entered into between the parties. He has submitted that the offence in question under Section 324 may be permitted to be compounded. 14. Learned A.G.A. has also raised no objection taking into account the peculiar facts and circumstances of the case. 15. Learned counsel for the complainant has admitted the said fact of the compromise entered into between the parties. He has submitted that the offence in question under Section 324 may be permitted to be compounded. 14. Learned A.G.A. has also raised no objection taking into account the peculiar facts and circumstances of the case. 15. The evidence on record and medical report of the injured shows that he has received injuries on non vital part of the body, i.e., right leg. The injuries though found to be grievous in nature but there is no opinion of the doctor that it was dangerous to life. Thus, the arguments of learned counsel for the appellant appears to be correct that the offence will not travel beyond Section 324 I.P.C., hence the conviction and sentence of the appellant under Section 307 I.P.C. by the trial court is set aside but the appellant is convicted and sentenced under Section 324 I.P.C. to undergo two years rigorous imprisonment. 16. Taking into account that the complainant/injured Ram Narain Seth has compromised the dispute with the appellant and he has also filed an application along with the affidavit being Criminal Misc. Application No. 42903 of 2012 before this Court which is on record seeking permission to compound the offence. 17. It transpires from the application of the complainant that he has voluntarily desired to compound the offence with the appellant for sufficient and genuine reasons stated in their respective affidavits and such compounding is legal and valid. Therefore, the parties are allowed to compound the offence under Section 324 I.P.C. Criminal Misc. Application No. 42903 of 2012 stands accordingly allowed. In view of the said compounding, the conviction and sentence of the appellant is set aside as has been observed in the judgment of the Apex Court in the case of Manoj & another versus State of M.P. (Supra). 18. The appellant Lautoo is acquitted for the offence in question. He is stated to be on bail. He need not surrender. His bail bonds and sureties are discharged. 19. The appeal stands allowed. ________________