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2018 DIGILAW 656 (ALL)

CHAKKHAN @ SUDARSHAN v. STATE OF U. P.

2018-03-19

ARVIND KUMAR MISHRA I

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JUDGMENT : Hon'ble Arvind Kumar Mishra-I, J. Learned counsel for the appellants has produced copy of the compromise deed, which is taken on record and the same shall form part of the record. 2. By way of the instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 03.03.1987 passed by IV Additional Sessions Judge, Varanasi, in Session Trial No.38 of 1984 State Vs. Chakkhan @ Sudershan and others, arising out of Case Crime No.308 of 1981 under Sections 147, 325/149 and 323 IPC, Police Station- Rohania, District- Varanasi, whereby appellants have been sentenced to two years rigorous imprisonment under Section 147 IPC, three years rigorous imprisonment coupled with fine Rs.500/- each under Section 325/149 IPC, in default of payment of fine, additional six months rigorous imprisonment and one year rigorous imprisonment under Section 323 IPC. Sentence to run concurrently. 3. Heard Sri S.K. Upadhyay, learned counsel for the appellants, Sri Sunil Kumar Upadhyay, learned counsel for the informant, learned AGA for the State and perused the record. 4. The factual matrix of this case as discernible from record appears to be that Smt. Sumitra Devi wife of Jagarnath Mishra lodged the written report at Police Station Rohania, District Varanasi on 30.12.1981 at 5:00 p.m. regarding the incident of assault caused by the present appellants conjointly on 29.12.1981 at 9:00 p.m. near betel shop of Kunjan in village Alauddinpur, six kilometers away from the police station Rohania whereby allegations of assault being caused by the appellants on account of pending litigation and landed property were made due to which two persons sustained injury on their persons. The written report is Ext. Ka-1. 5. This report was taken down in the concerned Check FIR Ext. Ka-5 at Case Crime No.308 of 1981 under Sections 147, 323, 394 IPC, Police Station Rohania, District Varanasi and on the basis of the same, a case was registered in the concerned general diary Ext. Ka-6 on the aforesaid date and time at aforesaid crime number under aforesaid sections of IPC at Police Station Rohania, District Varanasi. 6. Record further reflects that medical examination of the injured Ram Dular Pandey and Ram Avalamb Upadhyay was also done at S.P.G. Hospital Varanasi, on 29.12.1981 at 11:25 a.m. and 11:00 a.m., respectively. Injury reports are Ext. Ka-9 and Ext. Ka-10, respectively. 6. Record further reflects that medical examination of the injured Ram Dular Pandey and Ram Avalamb Upadhyay was also done at S.P.G. Hospital Varanasi, on 29.12.1981 at 11:25 a.m. and 11:00 a.m., respectively. Injury reports are Ext. Ka-9 and Ext. Ka-10, respectively. X-ray examination was also done in the case of both the injured. X-ray reports prepared are Ext. Ka-7 and Ext. Ka-8, respectively. 7. The investigation ensued. S.I. Dhoothnath Singh PW-4, the Investigating Officer recorded statement of various persons apart from doing other formalities and particularly preparing spot map Ext. Ka-2 and after completing the investigation, filed charge sheet (Ext. Ka-4) under Sections 147, 323, 325, 308 IPC against the accused-appellants. 8. Consequently, proceedings were committed to the court of Sessions from where it was transferred for conduction and disposal of the case to the aforesaid trial court of II-Additional Sessions Judge, Varanasi who in turn heard both the sides on point of charge and was prima-facie satisfied with case against the accused-appellants, accordingly, framed charges under Sections 147, 307 read with Section 149 IPC. Charges were read over and explained to the accused-appellants who abjured charges and opted for trial. 9. The prosecution, in order to prove guilt of the accused examined as many as seven witnesses namely Smt. Sumitra Devi PW-1 is the informant. Ram Dular Pandey and Ram Avalamb Upadhyay are the injured eyewitnesses. S.I. Doodhnath Singh PW-4 is the Investigating Officer. Constable Oudh Narain Singh PW-5 has taken down various entries in the concerned Check FIR and the general diary. Dr. S.K. Singh PW-6 is the radiologist who conducted x-ray examination of both the injured. Dr. Asharam Tripathi PW-7 has examined the both the injured. 10. Thereafter, evidence for the prosecution was closed and statement of the accused-appellants was recorded u/s 313 Cr.P.C., wherein, they claimed to have been falsely implicated by the informant in this case on account of enmity. No evidence, whatsoever, was led by the defence. 11. The learned IV-Additional Sessions Judge, Varanasi, after appraisal of facts and merit of the case and the evidence on record, returned aforesaid finding of conviction under Sections 147, 325/149, 323 IPC and sentenced to two years rigorous imprisonment under Section 147 IPC, three years rigorous imprisonment coupled with fine Rs.500/- each under Section 325/149 IPC, in default of payment of fine, additional six months rigorous imprisonment and one year rigorous imprisonment under Section 323 IPC. 12. Resultantly, this appeal. 13. At the very outset, learned counsel for the appellants has submitted that he has filed compromise deed in this case primarily under Sections 325 and 323 IPC wherein the accused-appellants have been sentenced to three years rigorous imprisonment coupled with fine Rs.500/- each, in default of payment of fine, additional six months rigorous imprisonment on the first count and one year rigorous imprisonment on the second count. Though original compromise deed filed in the office has not been annexed with the record but a receipt dated 14.03.2018 has been produced by the learned counsel for the accused-appellants in support of his claim. 14. It has been specifically described in paragraph no.14 of the compromise deed that Smt. Sumitra Devi PW-1 and Ram Dular Pandey PW-2 have expired, whose death certificates have been placed on record as annexure no.1 to the compromise deed. 15. Sri Sunil Kumar Upadhyay, learned counsel for the informant has supported the submissions raised by the learned counsel for the accused-appellants and has submitted that a worthy compromise has been reached between the parties because both the parties belong to the same family in the same village and they have shunned their differences. Now the informant side has no objection, whatsoever, and he has also stressed contents of paragraph nos.10, 11, 12 and 13 of the compromise deed, which are indicative of free will expression of the informant while entering into compromise under aforesaid sections of IPC. 16. Now a joint request has been made that insofar as the two Sections of IPC are concerned, the same are compoundable offences which should be considered in the light of the compromise arrived at between the parties. However, insofar as involvement of Section 147 IPC is concerned, then as per mandate contained in that Section, offence is punishable with imprisonment of either description for a term which may extend to two years, or with fine or with both. Therefore, point of sentence for two years period may be compensated by imposing fine upon the accused-appellants so that justice may be done in this case. Accordingly, a joint request was made for alternation of sentence awarded by the trial court particularly under Section 147 IPC was sought to be confined to fine only. 17. Therefore, point of sentence for two years period may be compensated by imposing fine upon the accused-appellants so that justice may be done in this case. Accordingly, a joint request was made for alternation of sentence awarded by the trial court particularly under Section 147 IPC was sought to be confined to fine only. 17. Learned AGA has not disputed the compromise deed and claim so raised by the accused-appellants regarding the aforesaid two Sections of IPC and the fact that both the sides belonged to the same family. However, he has submitted that sentence awarded under Section 147 IPC may be modified adequately if the same is pegged to fine only. 18. After thoughtful consideration of the entire gamut of prevailing facts and circumstances of this case and with a view to do substantial justice, it would be feasible and in the interest of justice that joint submissions raised by both the parties should be acted upon at this juncture because both the Sections involved particularly Sections 323 and 325 IPC are very much compoundable and, therefore, submission in regard to that end is accepted in entirety. 19. In view of the compromise reached between the parties, the sentence so awarded under Sections 323, 325 IPC is hereby modified to the extent that on account of compromise reached between the parties, the accused-appellants are acquitted of charges under Sections 323, 325/149 IPC. 20. Insofar as sentence under Section 147 IPC is concerned, the very perusal of the impugned judgment is reflective of fact that two years rigorous imprisonment was awarded against the accused-appellants and considering the entirety of the case, particularly good wishes that have now prevailed between the parties, cause of substantial justice, it would be in the interest of both the parties as well as justice that sentence of two years rigorous imprisonment awarded by the trial court Section 147 IPC be modified and the same be confined to fine only as provided under Sections 147 IPC - either imprisonment with fine or either. 21. 21. With that view in mind, sentence of two years rigorous imprisonment awarded under Section 147 IPC is modified and pegged to fine to the tune of Rs.3000/- against each of the appellants, out of the aforesaid amount of fine, Rs.1000/- each shall be paid to both the injured namely Ram Dular Pandey and Ram Avalamb Upadhyay or their successors, as the case may be. However, it is provided that the amount of fine shall be deposited within a month from the date of this judgment. In case of default in payment of fine the concerned convict shall have to suffer additional imprisonment for six months period. 22. Accordingly, sentencing part of the impugned the judgment and order of conviction dated 03.03.1987 passed by IV Additional Sessions Judge, Varanasi, in Session Trial No.38 of 1984 State Vs. Chakkhan @ Sudershan and others, arising out of Case Crime No.308 of 1981 under Sections 147, 325/149 and 323 IPC, Police Station- Rohania, District- Varanasi, is hereby modified to the aforesaid extent while conviction is maintained. 23. The instant appeal is allowed, partly in aforesaid terms. 24. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.