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2019 DIGILAW 2112 (RAJ)

Shiv Kumar v. State of Rajasthan

2019-08-06

MANOJ KUMAR GARG

body2019
JUDGMENT : Manoj Kumar Garg, J. 1. The appellants have filed the present Criminal Appeal under Section 374(2) Cr.P.C. against the judgment dated 15.01.2015 passed by learned Additional Sessions Judge, Raisinghnagar in Sessions Case No. 16/2012 whereby the appellants have been convicted and sentenced as under:- Name of Accused Offence Punishment Ramchandra 147 IPC One year R.I 148 IPC Two years RI 307 IPC Five years R.I and fine of Rs. 5000/- in default of payment of fine, to undergo 09 months S.I 326 IPC Four years R.I and fine of Rs. 3000/-, in default of payment of fine to further undergo 06 months S.I 324 IPC Two years R.I and fine of Rs. 1000/- in default of payment of fine further to undergo 03 months S.I 323/149 IPC Six months R.I 27 Arms Act Two years R.I and fine of Rs. 2000/- in default of payment of fine to further undergo 04 months S.I. Shiv Kumar, Kalu Ram, Budh Ram, Raja Ram 147 IPC One year R.I 148 IPC Two years R.I 307/149 IPC Five years R.I and fine of Rs. 5000/-, in default of payment of fine to further undergo 09 months S.I. 326/149 IPC Four years R.I and fine of Rs. 3,000/- in default of payment of fine further to undergo six months S.I. 324/149 IPC Two years R.I and fine of Rs. 1000/- in default of payment of fine to further undergo three months S.I 323/149 IPC Six months R.I 2. Brief facts of the case are that on 01.12.1999, the complainant Prem Kumar gave a report to the police station in the Govt. Hospital, Raisinghnagar alleging that he is having dispute with regard to land with his brothers Manphool, Raja Ram, Budh Ram and Ramchandra Shiv Kumar, Kalu Ram. On 01.12.1999, Manphool, Raja Ram, Budh Ram and Newphew Ram Chandra, Shiv Kumar and Kalu Ram came to his house. Manphool, Budh Ram were having gun. Ramchandra who was also having gun, fired at him. Due to the fire made by Ramchandra and Manphool, the complainant received appellate injuries. It is alleged that other accused also attacked him. Upon raising hue and cry, his other brothers came and the accused ran away. 3. On the aforesaid complaint, a case was registered at Police station, Raisinghnagar being FIR No. 502/1999. Due to the fire made by Ramchandra and Manphool, the complainant received appellate injuries. It is alleged that other accused also attacked him. Upon raising hue and cry, his other brothers came and the accused ran away. 3. On the aforesaid complaint, a case was registered at Police station, Raisinghnagar being FIR No. 502/1999. The police after due investigation filed challan under Section 307, 326, 323, 147, 148, 149 IPC and Section 27 Arms Act. 4. The trial Court after hearing the arguments, framed charges against the accused appellants Shiv Kumar, Raja Ram, Budh Ram and Kalu Ram for offence under Sections 147, 148, 307/149, 326/149, 324/149, 323/149 IPC and against the appellants Ram Chandra and Manphool for offence under Section 147, 148, 307, 326, 324, 323, 149 IPC. The accused appellants denied the charges and claimed trial. 5. The prosecution in support of its case recorded statements of 11 witnesses and exhibited 54 documents. The statement of accused respondent under Section 313 Cr.P.C. was recorded. On the defence side, the appellant exhibited six documents. 6. After hearing arguments of both the sides, the trial Court convicted and sentenced the accused appellants as mentioned earlier. 7. Counsel for the appellants so also counsel for the complainant party submitted that a compromise has been arrived at between the parties and they have filed an application under Section 320 Cr.P.C. for taking the compromise on record. After filing of the application, the compromise arrived at between the parties has been duly verified before the Dy. Registrar (Judl.), Rajasthan High Court on 17.05.2019. Learned counsel for the appellants argued that the injuries sustained by the injured are neither grievous injuries nor present on vital parts. Further, it is contended that since the occurrence relates back to year 1999 and the appellants has so far suffered substantial period of sentence awarded to them, therefore, it is prayed that the substantive sentence awarded to the appellants for the aforesaid offence may be reduced to the period already undergone by them. 8. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the appellants. The learned PP submitted that there is neither any occasion to interfere with the sentence awarded to the accused appellants nor any compassion or sympathy is called for in the said case. 9. 8. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the appellants. The learned PP submitted that there is neither any occasion to interfere with the sentence awarded to the accused appellants nor any compassion or sympathy is called for in the said case. 9. Counsel for the complainant submitted that since compromise has been arrived at between the parties, the complainant party does not want to pursue the present appeal and he has no objection if the sentence awarded to them is reduced to the period already undergone by them. 10. I have heard counsel for the appellants, learned Public Prosecutor as well as counsel for the complainant and gone through the entire record. 11. Since the appellants' counsel does not challenge the appellants' conviction, this Court need not go into the merits of the case and accordingly, the conviction of the appellants as recorded by the learned trial court is maintained. However, since the appellants and complainant party have arrived at compromise and the appellants Raja Ram, shiv Kumar, Malu Ram, Budh Ram, Ramchandra have so far undergone a period of 36 days, 36 days, 36 days, 38 days and 05 months & 02 days respectively so also suffered the agony and trauma of protracted trial, thus, looking to the over-all circumstances and the fact that the appellants have remained behind the bars for considerable time, it will be just and proper if the sentences awarded by the trial court is reduced to the period already undergone by him while maintaining the amount of fine. 12. Hon'ble Supreme Court in Gian Singh v. State of Punjab (2012) 10 SCC 303 ], wherein while examining the relative scope of inherent power of High Court under Section 482 Cr.P.C. vis-à-vis non-compoundable offences mentioned in Section 320 Cr.P.C., in the wake of compromise arrived at between the parties, held as under: "The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is not compoundable under Section 320 of the Code. Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, "nothing in this Code" which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e. to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on the High Court; it merely safeguards existing inherent powers possessed by the High Court necessary to prevent abuse of the process of any court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code. In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court, or (ii) to secure the ends of justice, is a sine qua non. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection. It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment." 13. The co-ordinate Bench of this Court in the case of Kalu Ram & Anr. Vs. The co-ordinate Bench of this Court in the case of Kalu Ram & Anr. Vs. State of Rajasthan reported in 2018 (1) R.Cr.D (Raj.) considering the ratio decidendi of judgment in Gian Singh (supra) held as under:- "Upon examining the ratio decidendi of judgment in Gian Singh (supra), in my considered opinion, on the strength of compromise arrived at between the parties and their vow to live peacefully within the locality as relatives, I feel persuaded to upset both the impugned judgments so as to quash conviction of petitioners for offence under Section 458 IPC. This sort of situation has obviously entailed acquittal of both the petitioners for offence under Section 458 IPC." 14. Accordingly, the appeal is partly allowed. While maintaining the appellants' conviction and sentence for offence under Sections 147, 148, 307/149, 326/149, 324/149, 323/149 IPC and 147, 148, 307, 326, 323/149 IPC and 27 Arms Act, the sentence awarded to them is reduced to the period already undergone, however the amount of fine is hereby maintained with default stipulation. Two month's time is granted to deposit the fine before the trial court. Appellants are on bail. Their bail bonds stand discharged. 15. The record of the trial court be sent back forthwith.