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2022 DIGILAW 987 (JHR)

Rasool Sheikh v. State of Jharkhand

2022-08-05

NAVNEET KUMAR

body2022
ORDER : 1. This appeal is directed against the judgment of conviction dated 15.04.2004 and order of sentence dated 16.04.2004 passed by the learned Sessions Judge, Pakur in Sessions Case No. 61 of 2003 in connection with Pakur (M) P.S. Case No. 201/2001, corresponding to G.R. Case No. 392 of 2001, Pakur, Jharkhand, whereby and where under the learned trial court convicted the appellants for the offence punishable u/s 307/34 of IPC, 1860 and has been sentenced to undergo R.I. for 07 years. 2. At the outset, it is found that the learned A.P.P. has filed a counter affidavit on behalf of the State stating therein that out of the three appellants one of the appellants namely Jahangir Sheikh son of the Late Hazi Toresh Ali has died on 13.11.2020 and the death certificate has also been issued by the competent authority by which it appears that the Jahangir Sheikh has died on 13.11.2020 and in this view of the matter, it is submitted that no near relative has come forward to continue with this appeal and, therefore, it is urged, let this appeal be abated with respect to the deceased appellant. Learned defence counsel appearing on behalf of the appellant submitted that since no close relative or near relative or kith and kin has come forward to continue with this appeal, let this appeal be abated by virtue of operation of law against the deceased appellant. Accordingly, this appeal is abated with respect to the deceased appellant Jahangir Sheikh. Let his name be deleted from the cause title of memo of appeal and the rest of the appellants are re- numbered as appellant no. 1- Rasool Sheikh and the appellant No. 2- Shafikul Sheikh. 3. The prosecution case arose out of fardbeyan of Noor Islam Sheikh son of Nekaeel Sheikh of village Rahaspur, P.S. Pakur (M) District Pakur on 10.09.2001, which was recorded by inspector S.I. Santosh Kumar Suman at about 9.45 p.m. The informant stated that on 10.09.2001 at 7 p.m. he had gone to the grocery shop of Anarul Sheikh for the purchase of some articles and was sitting on a Machan made of bamboo in front of the said shop when suddenly all the three accused persons, namely, Jahangir Sheikh, son of Tores Sheikh Shafikul Sheikh, son of Rasool Sheikh and Rasool Sheikh son of Jehar Sheikh came there and began abusing the informant. Accused Shafikul Sheikh was armed with rod and accused Rasool Sheikh was armed with a Chheni (hanusa). When the informant protested, the accused Jahangir Sheikh called upon the other two accused persons to kill the informant. Thereafter, accused Safikul Sheikh and accused Rasool Sheikh assaulted the informant on his head with rod and chheni as a result of which he fell down and started raising alarm (hulla) for help. It was further stated that the above two accused persons attempted to commit the murder of the informant and when the informant was trying to save himself he also sustained injury on his right hand. It was further stated in the fardbeyan of the informant that one year ago a mar-pit (altercation) had taken place with accused Rasool Sheikh and a case was pending in the court in connection with the said occurrence. On account of the said case, the accused persons committed this occurrence. 4. On the basis of aforesaid fardbeyan of the informant, a case under sections 323, 341, 324, and 307/34 of IPC was registered against all the three named accused persons vide Pakur (M) P.S. case No. 201/2001 and investigation was taken up. The injured informant was sent to Sub Divisional Hospital, Pakur for treatment. Sub-inspector Santosh Kumar Suman of Pakur(M) Police Station (P.W. 9) investigated the case. On completion of investigation he submitted charge sheet under sections 323, 341, 342, 307, 504/34 of IPC against all the three accused persons over which cognizance of the offence was taken and the case was committed to the court of sessions for trial. Learned Sessions Judge, Pakur had framed charge on 22nd August 2003 under section 307/34 of IPC. 4. Learned trial court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal. 5. Heard Mr. B.M. Tripathi, the learned senior counsel appearing on behalf of the appellants, Mrs. Nutan Kumari Sharma, learned counsel appearing on behalf of the informant and Mr. Santosh Kr. Shukla, learned A.P.P. appearing for the State. Arguments advanced on behalf of the appellants & Informant 6. 5. Heard Mr. B.M. Tripathi, the learned senior counsel appearing on behalf of the appellants, Mrs. Nutan Kumari Sharma, learned counsel appearing on behalf of the informant and Mr. Santosh Kr. Shukla, learned A.P.P. appearing for the State. Arguments advanced on behalf of the appellants & Informant 6. At the outset, it has been jointly submitted by the learned defence counsel, on behalf appellant as well as the learned counsel appearing on behalf of the informant that admittedly it is a case where both the parties were on litigating terms with respect to the landed properties and on earlier occasion also a criminal case was pending between them and, therefore, both were on inimical terms which is an admitted fact. Further, it has been jointly submitted on behalf of the appellants and informant that during the pending of this appeal by efflux of time a good sense has prevail between both of them in view of the fact that both are neighbour and co-villagers and the dispute between them has been resolved once and for all. 7. In view of the aforesaid compromise, it has been jointly submitted that one I.A. (Cr.) No. 5031 of 2022 has been filed on affidavit duly sworn in by the informant P.W. 8 Noor Islam Sheikh and one of the appellants Rasool Sheikh (appellant no.1) who is father of appellant No. 2, wherein it has been submitted that the appellant Rasool Sheikh is the own uncle of the informant Noor Islam Sheikh (P.W. 8) and the appellant Safikul Sheikh is cousin brother of the informant P.W. 8 and hence, all of them are agnates and over a period of time a good sense prevailed between them and they have voluntarily and willingly resolved their dispute amicably for good in presence of family members on 30.04.2022 and a photo copy of joint compromise petition and settlement agreement arrived at between the parties on 30.04.2022 has also been enclosed along with this I.A. and marked as annexure- 1. 8. In the backdrop, it is urged on behalf of both the parties including the appellants and informant that in view of the recent developments during the pendency of this appeal and for the ends of justice this appeal should be disposed of as compounded although both the appellants have been convicted for the offence punishable u/s 307/34 of IPC which is non-compoundable in nature. It has been pointed out by both of them that it is a personal nature of dispute arising out of landed property dispute and society at large is not going to be affected and both have entered into a compromise in a bona-fide manner without any coercion and pressure as stated by them in affidavit including the appellant Rasool Sheikh and the informant. The learned counsels appearing on behalf of both the parties (i.e. appellants and informant) relied upon the rulings of Hon’ble the Apex Court where the circumstances have been set out to compound the offences which are non-compoundable in nature are as under: Narinder Singh & Ors. Vs. State of Punjab & Another, reported in (2014) 6 SCC 466 , Yogendra Yadav & Ors. Vs. State of Jharkhand & Anr. reported in (2014) 9 SCC 653 , Gian Singh vs. State of Punjab &Anr. reported in (2012)10 SCC 303 & State of Madhya Pradesh vs. Laxmi Narayan & Ors. Reported in (2019) 5 SCC 688 Arguments advanced on behalf of the State 9. On the other hand, learned, A.P.P. for the State submitted that conviction of the appellants is u/s 307/34 of IPC which is major offence, but, in the light of the compromise which has been taken place and taking into consideration the entire facts and circumstances let a suitable order be passed. The learned APP did not controvert the factum of compromise and settlement arrived at between the prosecution parties and the appellants. Appraisal & Findings 10. Having heard the learned counsel for the parties, perused the record of this case including the lower court records. 11. It is admitted case of the prosecution that both the parties were on inimical terms. A criminal case was also pending between them with respect to the landed property dispute. These facts were disclosed at the initial stage in the FIR itself. 11. It is admitted case of the prosecution that both the parties were on inimical terms. A criminal case was also pending between them with respect to the landed property dispute. These facts were disclosed at the initial stage in the FIR itself. Further, it is also admitted fact that both the parties are co-villagers and neighbours and in the subsequent compromise petition, which has been filed through I.A. (Cr.) No. 5031 of 2022 on affidavit jointly sworn in by the appellant no.1 Rasool Sheikh and the informant Noor Islam Shekh it is found that both the parties are related to each other also and they are gotias as the appellant No. 1 Rasool Sheikh is the own uncle of the informant Noor Islam Sheikh and the appellant No.2 Safikul sheikh is the cousin brother of the informant. Further, it is found from the deposition of the witnesses examined on behalf of the prosecution that it is purely a civil nature dispute arising out of due to landed property and its nature is personal and society at large is not going to be affected. Further, it is submitted that the injury which is alleged to have been inflicted upon the injured by the appellants are also not caused ruthlessly and brutally, and, therefore, this appeal should be allowed as compounded. Thus, the contentions jointly advanced on behalf of the appellants and the informant may be taken into consideration for allowing this appeal as compounded in view of the rulings of the Hon’ble Supreme Court when all the dispute between the parties have set at rest. The rulings of the Hon’ble Supreme Court is appreciated as under: The Hon’ble Supreme Court in Gian Singh vs. State of Punjab &Anr. (2012)10 SCC 303 laid down following principles: “58. Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor...............................” 59. xxx xxx xxx 60. xxx xxx xxx “61. xxx xxx xxx 60. xxx xxx xxx “61. …the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” These principles are subsequently reiterated in a number of cases. In State of Madhya Pradesh vs. Laxmi Narayan & Ors. (2019) 5 SCC 688 elaborating the principle the Hon’ble Supreme Court observed in para 15 as under: “15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves; Such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society; Similarly, such power is not to be exercised for the offences under the special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender; xxx xxxxxx While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc.” Further in the case of Yogendra Yadav & Ors. Vs. State of Jharkhand & Anr. Vs. State of Jharkhand & Anr. reported in (2014) 9 SCC 653 recapitulating the Gian Singh's case Principle (Supra) it has been observed as under : “4. ---------- Needless to say that offences which are non-compoundable cannot be compounded by the court. Courts draw the power of compounding offences from Section 320 of the Code. The said provision has to be strictly followed (Gian Singh v. State of Punjab [ (2012) 10 SCC 303 ). However, in a given case, the High Court can quash a criminal proceeding in exercise of its power under Section 482 of the Code having regard to the fact that the parties have amicably settled their disputes and the victim has no objection, even though the offences are non-compoundable. In which cases the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder, etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace. As a matter of fact from the aforesaid propositions of law as propounded by the Hon'ble Supreme court in Gian Singh's case (Supra), Laxmi Narayan's case (Supra), and Yogender Yadav's Case (Supra) it is now well settled that the offences which are non-compoundable cannot be compounded by a criminal Court under the section 320 of the Cr.P.C. In spite of that there is a scope of compounding the offences by invoking inherent powers of the High Court vested under section 482 of Cr.P.C. to prevent abuse of the process of any court and/or to secure the ends of justice by taking into consideration the circumstances surrounding the incident, the manner and mode under which the compromise has been arrived at between the parties, and further due consideration to the nature and seriousness of the offence, in addition to the conduct of the accused, before and after the incident. But, such power is to be exercised very carefully, diligently and cautiously as observed by Hon'ble Supreme Court in Narinder Singh & Ors. Vs. State of Punjab & Anr. reported in (2014) 6 SCC 466 , as follows : “22. Thus, we find that in certain circumstances, this Court has approved the quashing of proceedings under Section 307 IPC whereas in some other cases, it is held that as the offence is of serious nature such proceedings cannot be quashed. Though in each of the aforesaid cases the view taken by this Court may be justified on its own facts, at the same time this Court owes an explanation as to why two different approaches are adopted in various cases. The law declared by this Court in the form of judgments becomes binding precedent for the High Courts and the subordinate courts, to follow under Article 141 of the Constitution of India. Stare decisis is the fundamental principle of judicial decision-making which requires “certainty” too in law so that in a given set of facts the course of action which law shall take is discernible and predictable. Unless that is achieved, the very doctrine of stare decisis will lose its significance. Stare decisis is the fundamental principle of judicial decision-making which requires “certainty” too in law so that in a given set of facts the course of action which law shall take is discernible and predictable. Unless that is achieved, the very doctrine of stare decisis will lose its significance. The related objective of the doctrine of stare decisis is to put a curb on the personal preferences and priors of individual Judges. In a way, it achieves equality of treatment as well, inasmuch as two different persons faced with similar circumstances would be given identical treatment at the hands of law. It has, therefore, support from the human sense of justice as well. The force of precedent in the law is heightened, in the words of Karl Llewellyn, by “that curious, almost universal sense of justice which urges that all men are to be treated alike in like circumstances”. As there is a close relation between equality and justice, it should be clearly discernible as to how the two prosecutions under Section 307 IPC are different in nature and therefore are given different treatment. With this ideal objective in mind, we are proceeding to discuss the subject at length. It is for this reason we deem it appropriate to lay down some distinct, definite and clear guidelines which can be kept in mind by the High Courts to take a view as to under what circumstances it should accept the settlement between the parties and quash the proceedings and under what circumstances it should refrain from doing so. We make it clear that though there would be a general discussion in this behalf as well, the matter is examined in the context of the offences under Section 307 IPC.” xxx xxxxxx xxx xxxxxx 12. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well. Therefore, only because FIR/charge-sheet incorporates the provision of Section 307 IPC would not, by itself, be a ground to reject the petition under Section 482 of the Code and refuse to accept the settlement between the parties. We are, therefore, of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely, whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used, etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 IPC were unnecessarily included in the charge-sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties. 13. Having taken into consideration, the law of the land on point of allowing the compounding of the offence which is non-compoundable nature it is well founded in the present case that both the parties are neighbours and also related to each other and the dispute is of personal in nature and, therefore, in order to ensure responsive justice, the peace and tranquility which prevailed on the basis of compromise and settlement arrived at amicably between the parties must be preserved. Further, it is also found that both the parties were on the litigating terms since last 20 years, since 2001. This Court is of the opinion that since the appellants and the informant are related to each other and they have settled their dispute amicably without any coercion and pressure and after resolving their disputes both the parties are living peacefully, it would be in the interest of justice to allow the parties to compound the offence. If the conviction is confirmed, the relations may get strained and the peace which is now prevailing between the parties may be disturbed. 14. If the conviction is confirmed, the relations may get strained and the peace which is now prevailing between the parties may be disturbed. 14. Therefore, in order to, accord quietus to the disputes between the appellants and the informant in the light of compromise and settlement arrived at between the parties and the contentions raised by the learned counsels appearing on behalf of both the parties, it is found a fit case in the larger interest of peace where the appeal may be allowed as compounded and the offence punishable under sections 307/34 of the IPC is allowed to be compounded on the basis of compromise and settlement. 15. This Court is mindful to the fact that the appellants have been convicted in a serious offence u/s 307/34 of IPC, but, having taken into consideration the subsequent developments as emanating from the settlement agreement dated 30.04.2022. From the perusal of the joint compromise agreement between the appellants and the informant which has been reduced in writing and part of the said I.A. (Cr.) No. 5031/2022, it is found that earlier there was an altercation took place on 10.9. 2001 due to some misunderstanding and intervention of some mischief mongers. Since both the parties are belonging to the same family tree and due to intervention of other elderly family members good sense prevails between both the families, hence both the parties have decided to resolve their dispute with clean heart. The female members of the family have also never entered into any dispute and they always lived amicably. Their houses are also in the same locality with the houses of other agnates between them. The informant Noor Islam Sheikh due to the said altercation had received two simple injuries caused by sharp weapon on right side of the head and right side of the back of head and also received one grievous injury on the right forearm and the fourth injury was only body ache and stated to be simple in nature. There was no permanent loss to the informant and it was at the spur of the moment this occurrence had taken place, hence, the informant also accepted the “forget and forgive theory” and with clean heart settled the dispute in the presence of other family members. There was no permanent loss to the informant and it was at the spur of the moment this occurrence had taken place, hence, the informant also accepted the “forget and forgive theory” and with clean heart settled the dispute in the presence of other family members. The informant also did not want to pursue the matter in future and both the families want to spend their further life with peace and harmony, hence, there is no purpose for the informant to get the appellants further convicted. It is also found that there is no threat, coercion and pressure used upon on any of the parties and the dispute was resolved only on their free will and consent and they have also assured that no any dispute exists between them. Thus, in order to maintain harmonious relationship between the parties which prevailed after a long period of time i.e. after 21 years it is in the interest of justice that both the parties remain in cordial and warm relationship and, therefore, there is the demand of justice in the present case to allow this appeal as compounded. 16. In the result, the impugned judgment of conviction dated 15.04.2004 and order of sentence dated 16.04.2004 passed by the learned Sessions Judge, Pakur in Sessions Case No. 61 of 2003 in connection with Pakur (M) P.S. Case No. 201/2001, corresponding to G.R. Case No. 392 of 2001, Pakur, Jharkhand against the appellants is set aside. 17. This appeal is allowed as compounded. 18. The appellants are acquitted from the charges leveled against them. Since the appellants are on bail, they discharged from the liabilities of the bail bonds. 19. Let the LCR be sent back to the concerned learned court below along with the copy of the judgment.