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2023 DIGILAW 426 (UTT)

Rajkumar Lohia @ Raju v. State of Uttarakhand

2023-07-26

SHARAD KUMAR SHARMA

body2023
JUDGMENT : The whole controversy arose because of the fact that respondent No. 5 herein, i.e. the son of respondent No. 4, is said to have married to one of the victim Jhanvhi, which was against the wishes of the parents, due to which the said incident had chanced on 23.05.2022. 2. The basic vertebra of the allegation is that respondent No. 5, for last about 3 years has been in an intimate relationship with Jhanvhi, i.e. the daughter of the applicant No. 1 herein and it was owing to the aforesaid relationship, that there was an ever accelerating acrimony amongst the two group of persons, which has resulted into the said incident of 23.05.2022, wherein it was observed that on the occasion of the marriage anniversary of Kartik i.e. respondent No. 5 herein, certain dispute took place and which has resulted into the applicants making an assault on the three victims, who had been named therein in the FIR i.e. Gulshan Kumar Bathla (respondent No. 4), Kartik (respondent No. 5) and Jhanvhi, who is not a party to the instant C482 Application, who had suffered injuries on the fingers of her hand. 3. There had been a specific allegation which has been leveled in the FIR, that Chaman Lohia i.e. the applicant No. 2 herein has made the assault on Gulshan Kumar Bathla, thereby causing serious injuries on his person and similarly he had also assaulted respondent No. 5 Kartik, causing injuries on his hand and head. Similarly, there was an open injury which was suffered by Jhanvhi Bathla on her hand, as observed in the FIR. 4. There cannot be any dispute that the FIR is not a sacrosanct. Similarly, there was an open injury which was suffered by Jhanvhi Bathla on her hand, as observed in the FIR. 4. There cannot be any dispute that the FIR is not a sacrosanct. Prima facie, exclusively the FIR itself cannot be taken as to be the basis to come to a conclusion, as to whether at all the offence which has been complained of could be said to be an offence under Section 307 or not, because the FIR itself, which was registered on 04.05.2022, it was for the offences under Sections 147, 148, 149, 323, 324, 452, 504 & 506 of IPC, but, later on when the matter was investigated, the Investigating Officer, while submitting the Chargesheet as Chargesheet No. 216 of 2022, on 11.07.2022 had added the offence under Section 307 of IPC, on which the cognizance have been taken and the applicants have been later summoned to be tried for the offence under Sections 307, 323, 324, 452, 504 & 506 of IPC, as registered by way of Criminal Case No. 128 of 2022, State Vs. Rajkumar and others as it was registered before the Court of ACJM, Rudrapur, District Udham Singh Nagar. 5. The applicant to the C482 Application, while putting a challenge to the proceedings of Criminal Case No. 128 of 2022, has filed a Compounding Application under Section 320 of CrPC, contending thereof, that owing to the matrimony of Jhanvi with respondent No. 5, there now happens to be an established acceptable relationship inter se between the parties. In order to bring harmony amongst them, it would be in the wider interest of the parties, that the matter may be compounded. The second prospective for the purposes of enforcing Compounding Application was from the view point, that the Court has to reasonably consider as to whether the nature of offence which has been complained of, would be falling under the exceptions as provided under para 29.6 and 29.7 in the matters of Narinder Singh and others Vs. State of Punjab and Another, as reported in 2014 (6) SCC 466 of Narinder Singh (supra) for the purposes of compounding of the offence falling under Section 307 of IPC. The relevant paragraphs are extracted hereunder:- “29.6. State of Punjab and Another, as reported in 2014 (6) SCC 466 of Narinder Singh (supra) for the purposes of compounding of the offence falling under Section 307 of IPC. The relevant paragraphs are extracted hereunder:- “29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.” 6. Further, it has been argued by the learned counsel for the applicants, that in the light of the observations as made by the Hon’ble Apex Court in para 29.7 qua the purposes of considering the Compounding Application, for the heinous offence like that of Section 307, the Court has to consider the controversy from the back drop of the facts of each cases and the ultimate probable consequence to which it may be arrived at, if the criminal trial is permitted to be continued against the applicants or the accused persons. 7. 7. The Hon’ble Apex Court has observed that the Court has to show the benevolence in the exercise of powers under Section 482, favourably in favour of the accused person, but that benevolence has to be expressed at what stage, it has to be exercised is a question, which has yet to be considered in the light of the observations made in para 29.7 of Narinder Singh (supra) case which would be depending upon the facts of each case. 8. So far as the instant case is concerned, the proceedings of trial admittedly has reached at an advanced stage, after the summoning order dated 26.07.2022, the charges have already been framed and the trial has consequently commenced. Be that as it may. Learned counsel for the applicant has particularly harped upon para 29.6 of the judgment Narinder Singh (supra), which has been already extracted above. 9. There cannot be any doubt, that the offence which is under consideration in the instant case is an offence against the society and is heinous in nature. The scope of its compoundability according to para 29.6, will always depend upon that the Court can compound the offence though not compoundable, but the Court will have to look into following aspects:- (i) Nature of injuries (ii) Whether the injury has been inflicted on the vital part of the body (iii) Nature of weapon used (iv) Medical report in respect of the injury suffered in order to conclude as to whether the composition is required to be considered or not. (v) What has been the intensity of the injuries caused, its seriousness, and motive contributing to committing of the offence. 10. When the matter was investigated by the Investigating Officer after appreciating the evidence which was adduced by the parties, wherein the Investigating Officer has examined as many as 13 witnesses including the statement of the victim, Doctor Sunil Singh Gautam and other eye witnesses who had seen the incident, accordingly the trial Court had come to the conclusion that looking to the nature of injuries and particularly in the light of the statement of Doctor Sunil Singh Gautam, they are the serious injuries which have been caused, which lead to the introduction of Section 307 of IPC in the said Chargesheet. 11. 11. Coming down to the implications of para 29.6 of the Narinder Singh’s judgment (supra), which has been strongly harped upon by the learned counsel for the applicant, let me deal with each of the ingredients required to be satisfied for the purposes of exercising the inherent powers for compounding the offences in the context of the facts of the instant case. 12. The first aspect would be pertaining to the nature of injuries. So far as Gulshan Bathla is concerned, the injury report shows, that he has suffered severe head and facial injury caused by sharp edged weapon, with a deep cut over left ear, which quite obviously is an injury caused on the vital part of the body by a lethal weapon. 13. The second injury, which is yet again a sharp cut injury has been found to be on the left upper abdomen which was bleeding profusely, which would yet again would be an injury, which was caused on a vital part of the body by a deadly weapon used by the accused persons. 14. The third injury which was shown to be found upon Gulshan Bathla is a sharp cut over right lower forearm wrist. Thus, consequently the Doctor who attended upon him has opinioned that all injuries are serious in nature. 15. Since all the injuries have been caused by a sharp edged weapon that too on a vital part of the body and which has been opined by the attending doctor to be grievous in nature, the ultimate analysis based on the observations as made in para 29.6 judgment of Narinder Singh (supra) goes against the applicant, to consider the Compounding Application particularly in the context of the medical report and the doctor’s statement recorded. 16. As far as the second victim is concerned i.e. the Kartik respondent No. 5 herein, the doctor who has attended upon him i.e. Dr. Sunil Singh Gautam, Dr. M. Samrat, have observed that the victim No. 2, i.e. respondent No. 5 herein had suffered a deep cut on left head, deep cut in the left elbow, deep wound on the elbow, head injury and frontal parietal region, deep wound being 4x3 cm, on the left arm mid posterior laceration on the head. The doctor, ultimately after considering the injuries as suffered by Kartik Bathla, has opined that all the injuries are grievous and life threatening. 17. The doctor, ultimately after considering the injuries as suffered by Kartik Bathla, has opined that all the injuries are grievous and life threatening. 17. So far as the 3rd injured person Jhanvhi is concerned, the applicant, for the reasons best known to them, they have not placed any medical report on record of this C482 Application, as to what was the nature of injury suffered by Jhanvhi except for the fact that it could be culled out from the FIR itself, that she too has suffered injuries caused by a sharp edged weapon resulting into injuring her hand due to which she had suffered an open wound. 18. Owing to the aforesaid and particularly in reference to para 29.6 as extracted above, all the injuries could be said to be grievous in nature, caused on the vital part of the body and they were fatal to life caused by a sharp edged weopon. 19. Thus, the scope of composition of offence under Section 307 of IPC, as propounded by the Hon’ble Apex Court in the judgment of Narinder Singh (supra) in the instant case, the implication of para 29.6 would not come into play. 20. So far the parameters provided therein, they run contrary to the very intention of the Compounding Application and the incident which has been complained of in the FIR. The argument of the learned counsel for the applicant that since there is a relationship between the parties and in order to bring harmony, the matter may be compounded. 21. The incident dated 23.05.2022 itself, is an example of absence of harmony amongst the family members. The assault has been made with a clever intent and even that it is not an isolated assault which was made but rather three persons have been injured then obviously the assailant must be having a prior knowledge about the consequences of it. Thus the theory harmony as canvassed in the instant case is a fiction created by the applicant for considering the Compounding Application. 22. Thus the theory harmony as canvassed in the instant case is a fiction created by the applicant for considering the Compounding Application. 22. In that eventuality, the laudable philosophy of benevolence to be exercised by the High Court, will not be available under the facts of the instant case particularly, when the Hon’ble Apex Court was treating with the aspect of composition of offence at the stage of investigation or trial, when it was in fancies which is not the case at hand because here the Chargesheet has already been submitted, charges have been framed, and the criminal trial has already commenced. 23. Thus, the Compounding Application stands rejected and as a consequence of the reasons given above, this Court is not inclined to interfere in the C482 Application, that too would stand rejected.