Citation or judjment Case file Under Section 332 IPC but guilty in section 324 of IPC by the Supreme court of india

Case file Under Section 332 IPC but guilty in section 324 of IPC by the Supreme court of india

D. Chattaiah And Anr. vs State Of Andhra Pradesh on 21 July, 1978

Supreme Court of IndiaD. Chattaiah And Anr. vs State Of Andhra Pradesh on 21 July, 1978Equivalent citations: AIR 1978 SC 1441, (1979) 1 SCC 128, 1978 (10) UJ 894 SCAuthor: R SarkariaBench: P Kailasam, R SarkariaJUDGMENT R.S. Sarkaria, J.

1. The appellants were tried and acquitted by the Magistrate in respect of a charge under Section

332 IPC. On appeal by the state, the High Court set aside their acquittal and convicted and
sentenced them under Section 332 IPC to three months' rigorous imprisonment each.
2. They have come to this Court by special leave granted under Article 136 of the Constitution.
3. At the material time, the complainant Shaikh Masthan was a Typist of the Panchayat Samiti,
Ipur. In the same office, appellants 1 and 2 and the accused. Guravareddy were working as Health
Inspector, Lower Division Clerk and Health Worker, respectively, attached to the Primary Health
center, Ipur.
4. The Charge on which the accused were tried ran as followsThat
you, on or about the 29th day of the November, 1968 in the Panchayat Samiti office at Ipur,
caused hurt to Typist, Shaikh Masthan of the same office, which in discharge of his duties as such
public servant with intent to deter him from discharging duties and thereby committed an offence
punishable under Section 332 Indian Penal Code....
5. It will be seen that substantially, the charge as framed was under the second part of Section
332 IPC of which "the intent to prevent or deter public servant from discharging his duties as
such public servant" is an essential ingredient.
6. Counsel for the appellants has taken us through the records including the copies of the
statements of material witnesses. It is urged by him that no case under Section 332 IPC was made
out against the appellants. In this connection, he has drawn our attention to the FIR which,
according to him, does not contain any allegation that the assault on the informant was with
intent to prevent or deter him from performing his duty as public servant, or that it was the
consequence of or related to anything done by him in the discharge of his official duty. We find
force in this contention.
7. In the F.I.R. it has not been alleged that the incident was the outcome of anything connected
with the performance of the complainants duty as public servant. There is not even an oblique
allegation suggesting that he was assaulted with intent to prevent or deter him from doing his
official duty. All that was alleged by him in the F.I.R. (Ex. P.5), was that while he was attending to
despatch work in the office on 29.11.68 afternoon, the three accused (who work in the same
office) approached and questioned him as to why he had abused them. On the informant's denial
of the accusation, they beat him. In so assaulting the informant Manaepa Reddy used a stick and
scissOrs.
8. In his evidence at the trial, the complainant (PW. 1) disclosed other facts which put it beyond
doubt that the incident was the sequel of a private quarrel which took place between the
complainant and the accused on the preceding day when the complainants as returning home
from Samiti office, & was abused by the accused. In regard to the occurrence, the complainant's
version at the trial was that while he was at his work at about 1.00 P.M., appellant I came,
demanded an explanation why he was carrying on propaganda against family planning and
abusing him. The complainant denied. Thereupon, A1
slapped him and then A2
hit him with a
ruler and A3
with a stick. The complainant caught hold of the stick. A3
then picked up a pair of
scissors from the complainant's table and hit him below left eye.
9. It was thus manifest that the assault on the Typist (P.W. 1) had no real nexus or causal
connection, or consequential relation with the performance of his duty as public servant. There
was not even a soientilla of evidence from which it could be reasonably inferred that the intent of
the assailants was to prevent or dater P.W. 1 from the discharge of his duty as such public servant,
10. In view of the above, the charge as laid under Section 332 I.P.C. and, the conviction of the
appellant on that count, cannot be sustained. The appellants could, at the most, be held guilty
under Section 323 I.P.C. the injuries caused being simple.
11. We would, therefore, partly allow this appeal and alter the conviction of the appellants to one
under Section 323 IPC. As regards the sentence, we are told that the complainant (P.W. 1) has
compounded this case. To verify this we had issued notice to the complainant. But he has not in
response to that notice, put in appearance either in person or through Counsel. Nor has he sent
any information to verify the assertion made by the appellants at the bar.
12. We will, therefore, proceed on the basis that there has been no move to compound the case on
behalf of the complainant. We are told that the appellants have already been in jail as undertrial
and after conviction for more than a month. In any case they have undergone sufficient expense
and agony of protracted criminal proceedings extending over a period of about 8 or 9 years. We,
therefore, while altering their conviction to one under Section 323 I.P.C. sentence them to pay a
fine of Rs. 200/each
or in default to undergo one months' Rule I. The fine, if realised, shall be
paid as compensation to the complainant.
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Citation or Judjment on Acquitted 307/324/323/34 IPC Indian penal code act

Acquitted 307/324/323/34,IPC

[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.686/2014

(arising out of S.L.P.(Criminal) No.9547 of 2013)

Narinder Singh & Ors. ……Appellants
Vs.
State of Punjab & Anr. …Respondents
J U D G M E N T
A.K.SIKRI,J.
1. The present Special Leave Petition has been preferred against the
impugned judgment/final order dated 8.10.2013 passed by the High
Court of Punjab and Haryana at Chandigarh in Criminal Miscellaneous
Petition No.27343/2013. It was a petition under Section 482 of the Code
of Criminal Procedure (hereinafter referred to as the “Code”) for
quashing of FIR No.121/14.7.2010 registered under Sections
307/324/323/34,IPC, on the basis of compromise dated 22.7.2013
entered into between the petitioners ( who are accused in the said FIR)
and respondent No.2 (who is the complainant). The High Court has
refused to exercise its extraordinary discretion invoking the provisions
of Section 482 of the Code on the ground that four injuries were
suffered by the complainant and as per the opinion of the Doctor, injury
No.3 were serious in nature. The High Court, thus, refused to accept
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the compromise entered into between the parties, the effect whereof
would be that the petitioners would face trial in the said FIR.
2. Leave granted.
3. We have heard counsel for the parties at length.
4. It may be stated at the outset that the petitioners herein, who are
three in number, have been charged under various provisions of the IPC
including for committing offence punishable under Section 307, IPC i.e.
attempt to commit murder. FIR No.121/14.7.2010 was registered. In
the aforesaid FIR, the allegations against the petitioners are that on
9.7.2010 at 7.00 A.M. while respondent No.2 was going on his
motorcycle to bring diesel from village Lapoke, Jasbir Singh, Narinder
Singh both sons of Baldev Singh and Baldev Singh son of Lakha Singh
attacked him and injured him. Respondent No.2 was admitted in Shri
Guru Nanak Dev Hospital, Amritsar. After examination the doctor found
four injuries on his person. Injury No.1 to 3 are with sharp edged
weapons and injury No.4 is simple. From the statement of injured and
MLR’s report, an FIR under sections 323/324/34 IPC was registered.
After X-ray report relating to injury No.3, section 307 IPC was added in
the FIR
5. After the completion of investigation, challan has been presented
in the Court against the petitioners and charges have also been framed.
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Now the case is pending before the Ld.Trial Court, Amritsar, for
evidence.
6. During the pendency of trial proceedings, the matter has been
compromised between the petitioners as well as the private respondent
with the intervention of the Panchayat on 12.07.2013. It is clear
from the above that three years after the incident, the parties
compromised the matter with intervention of the Panchayat of the
village.
7. It is on the basis of this compromise, the petitioners moved
aforesaid criminal petition under section 482 of the Code for quashing
of the said FIR. As per the petitioners, the parties have settled the
matter, as they have decided to keep harmony between them to enable
them to live with peace and love. The compromise records that they
have no grudge against each other and the complainant has specifically
agreed that he has no objection if the FIR in question is quashed.
Further, both the parties have undertaken not to indulge in any
litigation against each other and withdraw all the complaints pending
between the parties before the court. As they do not intend to proceed
with any criminal case against each other, on that basis the submission
of the petitioners before the High Court was that the continuance of
the criminal proceedings in the aforesaid FIR will be a futile exercise
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and mere wastage of precious time of the court as well as investigating
agencies.
8. The aforesaid submission, however, did not impress the High
Court as the medical report depicts the injuries to be of grievous
nature. The question for consideration, in these circumstances, is as to
whether the court should have accepted the compromise arrived at
between the parties and quash the FIR as well as criminal proceedings
pending against the petitioner.
9. The ld. counsel for the State has supported the aforesaid verdict
of the High Court arguing that since offence under Section 307 is noncompoundable,
the respondents could not have been acquitted only
because of the reason that there was a compromise/settlement
between the parties. In support, the learned counsel for the
respondent-State has relied upon the judgment of this Court in the case
of Rajendra Harakchand Bhandari vs. State of Maharashtra (2011) 13
SCC 311 wherein this Court held that since offence under Section 307 is
not compoundable, even when the parties had settled the matter,
compounding of the offence was out of question. Said settlement along
with other extenuating circumstances was only taken as the ground for
reduction of the sentence in the following manner:
“We must immediately state that the offence
under Section 307 is not compoundable in terms of
Section 320(9) of the Code of Criminal Procedure,
1973 and, therefore, compounding of the offence in
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the present case is out of question. However, the
circumstances pointed out by the learned Senior
Counsel do persuade us for a lenient view in regard
to the sentence. The incident occurred on 17.5.1991
and it is almost twenty years since then. The
appellants are agriculturists by occupation and have
no previous criminal background. There has been
reconciliation amongst parties; the relations
between the appellants and the victim have become
cordial and prior to the appellants’ surrender, the
parties have been living peacefully in the village.
The appellants have already undergone the
sentence of more than two-and-a half years. Having
regard to those circumstances, we are satisfied that
ends of justice will be met if the substantive
sentence awarded to the appellants is reduced to
the period already undergone while maintaining the
amount of fine.
Consequently, while confirming the conviction of
the appellants for the offences punishable under
Section 307 read with Section 34, Section 332 read
with Section 34 and Section 353 read with Section
34, the substantive sentence awarded to them by
the High Court is reduced to the period already
undergone. The fine amount and the default
stipulation remain as it is.”
10. The learned counsel for the appellant, on the other hand,
submitted that merely because an offence is non-compoundable under
Section 320 of the Code would not mean that the High Court is denuded
of its power to quash the proceedings in exercising its jurisdiction under
Section 482 of the Cr.P.C. He argued that Section 320(9) of the Code
cannot limit or affect the power of the High Court under Section 482 of
the Cr.P.C. Such a power is recognized by the Supreme Court in catena
of judgments. He further submitted that having regard to the
circumstances in the present case where the fight had occurred on the
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spot in the heat of the moment inasmuch as both sides were verbally
fighting when the petitioners had struck the victim, this assault was
more of a crime against the individual than against the society at large.
He further submitted that this Court in Dimpey Gujral v. Union Territory
through Administrator 2012 AIR SCW 5333 had quashed the FIR
registered under sections 147,148,149,323,307,452 and 506 of the IPC.
11. We find that there are cases where the power of the High Court
under Section 482 of the Code to quash the proceedings in those
offences which are uncompoundable has been recognized. The only
difference is that under Section 320(1) of the Code, no permission is
required from the Court in those cases which are compoundable though
the Court has discretionary power to refuse to compound the offence.
However, compounding under Section 320(1) of the Code is permissible
only in minor offences or in non-serious offences. Likewise, when the
parties reach settlement in respect of offences enumerated in Section
320(2) of the Code, compounding is permissible but it requires the
approval of the Court. In so far as serious offences are concerned,
quashing of criminal proceedings upon compromise is within the
discretionary powers of the High Court. In such cases, the power is
exercised under Section 482 of the Code and proceedings are quashed.
Contours of these powers were described by this Court in B.S.Joshi vs.
State of Haryana (2003) 4 SCC 675 which has been followed and
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further explained/elaborated in so many cases thereafter, which are
taken note of in the discussion that follows hereinafter.
12. At the same time, one has to keep in mind the subtle distinction
between the power of compounding of offences given to Court under
Section 320 of the Code and quashing of criminal proceedings by the
High Court in exercise of its inherent jurisdiction conferred upon it
under Section 482 of the Code. Once, it is found that compounding is
permissible only if a particular offence is covered by the provisions of
Section 320 of the Code and the Court in such cases is guided solitary
and squarely by the compromise between the parties, in so far as
power of quashing under Section 482 of the Code is concerned, it 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. Such a
distinction is lucidly explained by a three-Judge Bench of this Court in
Gian Singh vs. State of Punjab & Anr. (2012) 10 SCC 303. Justice Lodha,
speaking for the Court, explained the difference between the two
provisions in the following manner:
“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
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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.
B.S.Joshi, Nikhil Merchant, Manoj Sharma and
Shiji do illustrate the principle that the High Court may
quash criminal proceedings or FIR or complaint in
exercise of its inherent power under Section 482 of the
Code and Section 320 does not limit or affect the
powers of the High Court under Section 482. Can it be
said that by quashing criminal proceedings in
B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji this
Court has compounded the non-compoundable
offences indirectly? We do not think so. There does
exist the distinction between compounding of an
offence under Section 320 and quashing of a criminal
case by the High Court in exercise of inherent power
under Section 482. The two powers are distinct and
different although the ultimate consequence may be
the same viz. acquittal of the accused or dismissal of
indictment.”
13. Apart from narrating the interplay of Section 320 and Section 482
of the Code in the manner aforesaid, the Court also described the
extent of power under Section 482 of the Code in quashing the criminal
proceedings in those cases where the parties had settled the matter
although the offences are not compoundable. In the first instance it
was emphasized that the power under Sec. 482 of the Code is not to be
resorted to, if there is specific provision in the Code for redressal of the
grievance of an aggrieved party. It should be exercised very sparingly
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and should not be exercised as against the express bar of law engrafted
in any other provision of the Code. The Court also highlighted that 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.
14. As to under what circumstances the criminal proceedings in a
non-compoundable case be quashed when there is a settlement
between the parties, the Court provided the following guidelines:
“Where the High Court quashes a criminal
proceeding having regard to the facts 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. No doubt,
crimes are acts which have harmful effect on the
public and consist in wrongdoing that seriously
endangers and threatens the well-being of the
society and it is not safe to leave the crime-doer
only because he and the victim have settled the
dispute amicably or that the victim has been paid
compensation, yet certain crimes have been made
compoundable in law, with or without the
permission of the court. In respect of serious
offences like murder, rape, dacoity, etc. or other
offences of mental depravity under IPC or offences
of moral turpitude under special statutes, like the
Prevention of Corruption Act or the offences
committed by public servants while working in that
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capacity, the settlement between the offender and
the victim can have no legal sanction at all.
However, certain offences which overwhelmingly
and predominantly bear civil flavor having arisen
out of civil, mercantile, commercial, financial,
partnership or such like transactions or the offences
arising out of matrimony, particularly relating to
dowry, etc. or the family dispute, where the wrong
is basically to the victim and the offender and the
victim have settled all disputes between them
amicably, irrespective of the fact that such offences
have not been made compoundable, the High Court
may within the framework of its inherent power,
quash the criminal proceeding or criminal complaint
or FIR if it is satisfied that on the face of such
settlement, there is hardly any likelihood of the
offender being convicted and by not quashing the
criminal proceedings, justice shall be casualty and
ends of justice shall be defeated. The above list is
illustrative and not exhaustive. Each case will
depend on its own facts and no hard-and-fast
category can be prescribed.”
Thereafter, the Court summed up the legal position in the following
words:
“The position that emerges from
the above discussion can be summarized thus: 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 plentitude with no statutory
limitation but it has to be exercised in accord with
the guidelines engrafted in such power viz.: (i) to
secure the ends of justice, or (ii) to prevent abuse f
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
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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 flavor 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 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.”
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15. The Court was categorical that in respect of serious offences or
other offences of mental depravity or offence of merely dacoity under
special statute, like the Prevention of Corruption Act or the offences
committed by Public Servant while working in that capacity. The mere
settlement between the parties would not be a ground to quash the
proceedings by the High Court and inasmuch as settlement of such
heinous crime cannot have imprimatur of the Court.
16. The question is as to whether offence under Section 307 IPC falls
within the aforesaid parameters. First limb of this question is to reflect
on the nature of the offence. The charge against the accused in such
cases is that he had attempted to take the life of another person
(victim). On this touchstone, should we treat it a crime of serious
nature so as to fall in the category of heinous crime, is the poser.
17. Finding an answer to this question becomes imperative as the
philosophy and jurisprudence of sentencing is based thereupon. If it is
heinous crime of serious nature then it has to be treated as a crime
against the society and not against the individual alone. Then it
becomes the solemn duty of the State to punish the crime doer. Even if
there is a settlement/compromise between the perpetrator of crime and
the victim, that is of no consequence. Law prohibits certain acts and/or
conduct and treats them as offences. Any person committing those
acts is subject to penal consequences which may be of various kind.
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Mostly, punishment provided for committing offences is either
imprisonment or monetary fine or both. Imprisonment can be rigorous
or simple in nature. Why those persons who commit offences are
subjected to such penal consequences? There are many philosophies
behind such sentencing justifying these penal consequences. The
philosophical/jurisprudential justification can be retribution,
incapacitation, specific deterrence, general deterrence, rehabilitation,
or restoration. Any of the above or a combination thereof can be the
goal of sentencing. Whereas in various countries, sentencing guidelines
are provided, statutorily or otherwise, which may guide Judges for
awarding specific sentence, in India we do not have any such
sentencing policy till date. The prevalence of such guidelines may not
only aim at achieving consistencies in awarding sentences in different
cases, such guidelines normally prescribe the sentencing policy as well
namely whether the purpose of awarding punishment in a particular
case is more of a deterrence or retribution or rehabilitation etc.
18. In the absence of such guidelines in India, Courts go by their own
perception about the philosophy behind the prescription of certain
specified penal consequences for particular nature of crime. For some
deterrence and/or vengeance becomes more important whereas
another Judge may be more influenced by rehabilitation or restoration
as the goal of sentencing. Sometimes, it would be a combination of
both which would weigh in the mind of the Court in awarding a
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particular sentence. However, that may be question of quantum.
What follows from the discussion behind the purpose of sentencing is
that if a particular crime is to be treated as crime against the society
and/or heinous crime, then the deterrence theory as a rationale for
punishing the offender becomes more relevant, to be applied in such
cases. Therefore, in respect of such offences which are treated against
the society, it becomes the duty of the State to punish the offender.
Thus, even when there is a settlement between the offender and the
victim, their will would not prevail as in such cases the matter is in
public domain. Society demands that the individual offender should be
punished in order to deter other effectively as it amounts to greatest
good of the greatest number of persons in a society. It is in this context
that we have to understand the scheme/philosophy behind Section 307
of the Code.
19. We would like to expand this principle in some more detail. We
find, in practice and in reality, after recording the conviction and while
awarding the sentence/punishment the Court is generally governed by
any or all or combination of the aforesaid factors. Sometimes, it is the
deterrence theory which prevails in the minds of the Court, particularly
in those cases where the crimes committed are heinous in nature or
depicts depravity, or lack morality. At times it is to satisfy the element
of “emotion” in law and retribution/vengeance becomes the guiding
factor. In any case, it cannot be denied that the purpose of punishment
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by law is deterrence, constrained by considerations of justice. What,
then, is the role of mercy, forgiveness and compassion in law? These
are by no means comfortable questions and even the answers may not
be comforting. There may be certain cases which are too obvious
namely cases involving heinous crime with element of criminality
against the society and not parties inter-se. In such cases, the
deterrence as purpose of punishment becomes paramount and even if
the victim or his relatives have shown the virtue and gentility, agreeing
to forgive the culprit, compassion of that private party would not move
the court in accepting the same as larger and more important public
policy of showing the iron hand of law to the wrongdoers, to reduce the
commission of such offences, is more important. Cases of murder, rape,
or other sexual offences etc. would clearly fall in this category. After
all, justice requires long term vision. On the other hand, there may be,
offences falling in the category where “correctional” objective of
criminal law would have to be given more weightage in contrast with
“deterrence” philosophy. Punishment, whatever else may be, must be
fair and conducive to good rather than further evil. If in a particular
case the Court is of the opinion that the settlement between the parties
would lead to more good; better relations between them; would prevent
further occurrence of such encounters between the parties, it may hold
settlement to be on a better pedestal. It is a delicate balance between
the two inflicting interests which is to be achieved by the Court after
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examining all these parameters and then deciding as to which course of
action it should take in a particular case.
20. We may comment, at this stage, that in so far as the judgment in
the case of Bhandari (supra) is concerned, undoubtedly this Court
observed that since offence under Section 307 is not compoundable in
terms of Section 320(9) of the Cr.P.C., compounding of the offence was
out of question. However, apart from this observation, this aspect is
not discussed in detail. Moreover, on reading para 12 of the said
judgment, it is clear that one finds that counsel for the appellant in that
case had not contested the conviction of the appellant for the offence
under Section 307 IPC, but had mainly pleaded for reduction of
sentence by projecting mitigating circumstances.
21. However, we have some other cases decided by this Court
commenting upon the nature of offence under Section 307 of IPC. In
Dimpey Gujral case (supra), FIR was lodged under sections
147,148,149,323,307,552 and 506 of the IPC. The matter was
investigated and final report was presented to the Court under Section
173 of the Cr.P.C. The trial court had even framed the charges. At that
stage, settlement was arrived at between parties. The court accepted
the settlement and quashed the proceedings, relying upon the earlier
judgment of this Court in Gian Singh vs. State of Punjab & Anr. 2012 AIR
SCW 5333 wherein the court had observed that inherent powers under
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section 482 of the Code are of wide plentitude with no statutory
limitation and the guiding factors are: (1) to secure the needs of justice,
or (2) to prevent abuse of process of the court. While doing so,
commenting upon the offences stated in the FIR, the court observed:
“Since the offences involved in this case are of
a personal nature and are not offences against the
society, we had enquired with learned counsel
appearing for the parties whether there is any
possibility of a settlement. We are happy to note that
due to efforts made by learned counsel, parties have
seen reason and have entered into a compromise.”
This Court, thus, treated such offences including one under section 307,
IPC were of a personal nature and not offences against the society.
22. On the other hand, we have few judgments wherein this Court
refused to quash the proceedings in FIR registered under section 307
IPC etc. on the ground that offence under section 307 was of serious
nature and would fall in the category of heinous crime. In the case of
Shiji vs. Radhika & Anr. (2011) 10 SCC 705 the Court quashed the
proceedings relating to an offence under section 354 IPC with the
following observations:
“We have heard learned counsel for the parties
and perused the impugned order. Section 320 of
the Cr.P.C. enlists offences that are
compoundable with the permission of the Court
before whom the prosecution is pending and
those that can be compounded even without
such permission. An offence punishable under
17
Page 18
Section 354 of the IPC is in terms of Section
320(2) of the Code compoundable at the instance
of the woman against whom the offence is
committed. To that extent, therefore, there is no
difficulty in either quashing the proceedings or
compounding the offence under Section 354, of
which the appellants are accused, having regard
to the fact that the alleged victim of the offence
has settled the matter with the alleged
assailants. An offence punishable under Section
394 IPC is not, however, compoundable with or
without the permission of the Court concerned.
The question is whether the High Court could and
ought to have exercised its power under section
482 the said provision in the light of the
compromise that the parties have arrived at.”
23. In a recent judgment in the case of State of Rajasthan vs.
Shambhu Kewat & Ors. 2013 (14) SCALE 235, this very Bench of the
Court was faced with the situation where the High Court had accepted
the settlement between the parties in an offence under Section 307
read with Section 34 IPC and set the accused at large by acquitting
them. The settlement was arrived at during the pendency of appeal
before the High Court against the order of conviction and sentence of
the Sessions Judge holding the accused persons guilty of the offence
under Section307/34 IPC. Some earlier cases of compounding of
offence under Section 307 IPC were taken note of, noticing under
certain circumstances, the Court had approved the compounding
whereas in certain other cases such a course of action was not
accepted. In that case, this Court took the view that High Court was not
justified in accepting the compromise and setting aside the conviction.
While doing so, following discussion ensued:
18
Page 19
“We find, in this case, such a situation does not
arise. In the instant case, the incident had occurred
on 30.10.2008. The trial court held that the accused
persons, with common intention, went to the shop of
the injured Abdul Rashid on that day armed with iron
rod and a strip of iron and, in furtherance of their
common intention, had caused serious injuries on the
body of Abdul Rashid, of which injury number 4 was
on his head, which was of a serious nature.
Dr.Rakesh Sharma, PW5, had stated that out of
the injuries caused to Abdul Rashid, injury No.4 was
an injury on the head and that injury was “grievous
and fatal for life”. PW8, Dr. Uday Bhomik, also opined
that a grievous injury was caused on the head of
Abdul Rashid. DR. Uday conducted the operation on
injuries of Abdul Rashid as a Neuro Surgeon and fully
supported the opinion expressed by PW5 Dr. Rakesh
Sharma that injury No.4 was “grievous and fatal for
life”.
We notice that the gravity of the injuries was
taken note of by the Sessions Court and it had
awarded the sentence of 10 years rigorous
imprisonment for the offence punishable under
Section 307 IPC, but not by the High Court. The High
Court has completely overlooked the various
principles laid down by this Court in Gian Singh
(Supra), and has committed a mistake in taking the
view that, the injuries were caused on the body of
Abdul Rashid in a fight occurred at the spur and the
heat of the moment. It has been categorically held by
this Court in Gian Singh (supra) that the Court, while
exercising the power under Section 482, must have
“due regard to the nature and gravity of the crime”
and “the social impact”. Both these aspects were
completely overlooked by the High Court. The High
Court in a cursory manner, without application of
mind, blindly accepted the statement of the parties
that they had settled their disputes and differences
and took the view that it was a crime against “an
individual”, rather than against “the society at large”.
We are not prepared to say that the crime
alleged to have been committed by the accused
19
Page 20
persons was a crime against an individual, on the
other hand it was a crime against the society at large.
Criminal law is designed as a mechanism for
achieving social control and its purpose is the
regulation of conduct and activities within the society.
Why Section 307 IPC is held to be non-compoundable,
because the Code has identified which conduct should
be brought within the ambit of non-compoundable
offences. Such provisions are not meant, just to
protect the individual, but the society as a whole.
High Court was not right in thinking that it was only
an injury to the person and since the accused persons
had received the monetary compensation and settled
the matter, the crime as against them was wiped off.
Criminal justice system has a larger objective to
achieve, that is safety and protection of the people at
large and it would be a lesson not only to the
offender, but to the individuals at large so that such
crimes would not be committed by any one and
money would not be a substitute for the crime
committed against the society. Taking a lenient view
on a serious offence like the present, will leave a
wrong impression about the criminal justice system
and will encourage further criminal acts, which will
endanger the peaceful co-existence and welfare of
the society at large.”
24. 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
20
Page 21
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
discernable 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”.
25. As there is a close relation between the 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
21
Page 22
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 offences under Section 307 IPC.
26. The two rival parties have amicably settled the disputes
between themselves and buried the hatchet. Not only this, they say
that since they are neighbours, they want to live like good neighbours
and that was the reason for restoring friendly ties. In such a scenario,
should the court give its imprimatur to such a settlement. The answer
depends on various incidental aspects which need serious discourse.
The Legislators has categorically recognized that those offences which
are covered by the provisions of section 320 of the Code are
concededly those not only do not fall within the category of heinous
crime but also which are personal between the parties. Therefore, this
provision recognizes whereas there is a compromise between the
parties the Court is to act at the said compromise and quash the
proceedings. However, even in respect of such offences not covered
within the four corners of Section 320 of the Code, High Court is given
power under Section 482 of the Code to accept the compromise
between the parties and quash the proceedings. The guiding factor is
as to whether the ends of justice would justify such exercise of power,
both the ultimate consequences may be acquittal or dismissal of
indictment. This is so recognized in various judgments taken note of
above.
22
Page 23
27. In the case of Dimpey Gujral (supra), observations of this
Court to the effect that offences involved in that case were not offences
against the society. It included charge under Section 307 IPC as well.
However, apart from stating so, there is no detained discussion on this
aspect. Moreover, it is the other factors which prevailed with the Court
to accept the settlement and compound he offence, as noted above
while discussing this case. On the other hand, in Shambhu Kewat
(supra), after referring to some other earlier judgments, this Court
opined that commission of offence under Section 307 IPC would be
crime against the society at large, and not a crime against an individual
only. We find that in most of the cases, this view is taken. Even on first
principle, we find that an attempt to take the life of another person has
to be treated as a heinous crime and against the society.
28. 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/Chargesheet
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,
23
Page 24
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 unnecessary included in the charge
sheet, the Court can accept the plea of compounding of the offence
based on settlement between the parties.
29. At this juncture, we would like also to add that the timing of
settlement would also play a crucial role. If the settlement is arrived at
immediately after the alleged commission of offence when the matter is
still under investigation, the High Court may be somewhat liberal in
accepting the settlement and quashing the proceedings/investigation.
Of course, it would be after looking into the attendant circumstances as
narrated in the previous para. Likewise, when challan is submitted but
the charge has not been framed, the High Court may exercise its
discretionary jurisdiction. However, at this stage, as mentioned above,
since the report of the I.O. under Section 173,Cr.P.C. is also placed
24
Page 25
before the Court it would become the bounding duty of the Court to go
into the said report and the evidence collected, particularly the medical
evidence relating to injury etc. sustained by the victim. This aspect,
however, would be examined along with another important
consideration, namely, in view of settlement between the parties,
whether it would be unfair or contrary to interest of justice to continue
with the criminal proceedings and whether possibility of conviction is
remote and bleak. If the Court finds the answer to this question in
affirmative, then also such a case would be a fit case for the High Court
to give its stamp of approval to the compromise arrived at between the
parties, inasmuch as in such cases no useful purpose would be served
in carrying out the criminal proceedings which in all likelihood would
end in acquittal, in any case.
30. We have found that in certain cases, the High Courts have
accepted the compromise between the parties when the matter in
appeal was pending before the High Court against the conviction
recorded by the trial court. Obviously, such cases are those where the
accused persons have been found guilty by the trial court, which means
the serious charge of Section 307 IPC has been proved beyond
reasonable doubt at the level of the trial court. There would not be any
question of accepting compromise and acquitting the accused persons
simply because the private parties have buried the hatchet.
25
Page 26
31. In view of the aforesaid discussion, we sum up and lay down the
following principles by which the High Court would be guided in giving
adequate treatment to the settlement between the parties and
exercising its power under Section 482 of the Code while accepting the
settlement and quashing the proceedings or refusing to accept the
settlement with direction to continue with the criminal proceedings:
(I) Power conferred under Section 482 of the Code is to be
distinguished from the power which lies in the Court to compound the
offences under Section 320 of the Code. No doubt, under Section 482 of
the Code, the High Court has inherent power to quash the criminal
proceedings even in those cases which are not compoundable, where
the parties have settled the matter between themselves. However, this
power is to be exercised sparingly and with caution.
(II)When the parties have reached the settlement and on that
basis petition for quashing the criminal proceedings is filed, the guiding
factor in such cases would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any Court.
While exercising the power the High Court is to form an opinion on
either of the aforesaid two objectives.
26
Page 27
(III) Such a power is not be exercised in those prosecutions which
involve 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, for offences alleged to
have been committed under special statute 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.
(IV) On the other, those criminal cases having overwhelmingly
and pre-dominantly civil character, particularly those arising out of
commercial transactions or arising out of matrimonial relationship or
family disputes should be quashed when the parties have resolved their
entire disputes among themselves.
(V) While exercising its powers, the High Court is to examine as to
whether the possibility of conviction is remote and bleak and
continuation of criminal cases would put the accused to great
oppression and prejudice and extreme injustice would be caused to him
by not quashing the criminal cases.
(VI) Offences under Section 307 IPC would fall in
the category of heinous and serious offences and therefore is 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
27
Page 28
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/delegate 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 later 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.
(VII) 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
28
Page 29
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 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.
32. After having clarified the legal position in the manner aforesaid,
we proceed to discuss the case at hand.
29
Page 30
33. In the present case, FIR No.121 dated 14.7.2010 was registered
under Section 307/324/323/34 IPC. Investigation was completed,
whereafter challan was presented in the court against the petitioner
herein. Charges have also been framed; the case is at the stage of
recording of evidence. At this juncture, parties entered into
compromise on the basis of which petition under Section 482 of the
Code was filed by the petitioners namely the accused persons for
quashing of the criminal proceedings under the said FIR. As per the
copy of the settlement which was annexed along with the petition, the
compromise took place between the parties on 12.7.2013 when
respectable members of the Gram Panchayat held a meeting under the
Chairmanship of Sarpanch. It is stated that on the intervention of the
said persons/Panchayat, both the parties were agreed for compromise
and have also decided to live with peace in future with each other. It
was argued that since the parties have decided to keep harmony
between the parties so that in future they are able to live with peace
and love and they are the residents of the same village, the High Court
should have accepted the said compromise and quash the proceedings.
34. We find from the impugned order that the sole reason which
weighed with the High Court in refusing to accept the settlement
between the parties was the nature of injuries. If we go by that factor
alone, normally we would tend to agree with the High Court’s approach.
However, as pointed out hereinafter, some other attendant and
30
Page 31
inseparable circumstances also need to be kept in mind which compel
us to take a different view.
35. We have gone through the FIR as well which was recorded on the
basis of statement of the complainant/victim. It gives an indication that
the complainant was attacked allegedly by the accused persons
because of some previous dispute between the parties, though nature
of dispute etc. is not stated in detail. However, a very pertinent
statement appears on record viz., “respectable persons have been
trying for a compromise up till now, which could not be finalized”.
This becomes an important aspect. It appears that there have been
some disputes which led to the aforesaid purported attack by the
accused on the complainant. In this context when we find that the
elders of the village, including Sarpanch, intervened in the matter and
the parties have not only buried their hatchet but have decided to live
peacefully in future, this becomes an important consideration. The
evidence is yet to be led in the Court. It has not even started. In view of
compromise between parties, there is a minimal chance of the
witnesses coming forward in support of the prosecution case. Even
though nature of injuries can still be established by producing the
doctor as witness who conducted medical examination, it may become
difficult to prove as to who caused these injuries. The chances of
conviction, therefore, appear to be remote. It would, therefore, be
unnecessary to drag these proceedings. We, taking all these factors
31
Page 32
into consideration cumulatively, are of the opinion that the compromise
between the parties be accepted and the criminal proceedings arising
out of FIR No.121 dated 14.7.2010 registered with Police Station
LOPOKE, District Amritsar Rural be quashed. We order accordingly.
36. Appeal is allowed. No costs.
………………………………J.
(K.S.Radhakrishnan)
………………………………J.
(A.K.Sikri)
New Delhi,
March 27, 2014
32

Citation or Judjment of Aquittal in 341, 324, 294, 353, 332, 379, 307,506 of indian penal code act

Aquittal in 341, 324, 294, 353, 332, 379, 307,506 IPC

IN THE COURT OF THE 1ST ADDL. SESSIONS JUDGE- CUMSPECIALJUDGE (VIGILANCE) BHUBANESWAR.

Present :

Shri N.Sahu, LL.B.,

1st Addl. Sessions Judge,

Bhubaneswar.

Crl. Appeal No. 10/53 of 2012/2011.

(Arising out of the judgment,dt.18.11.2011 passed

in C.T.Case No.56/144/2010(A) by the learned

A.C.J.M.-cum-A.S.J.,Bhubaneswar ).

Prasan Swain, aged about 35 years,

Son of Bata @ Dhukudi Swain,

resident of Village-Pitapalli,

PS-Jatni, Dist.Khurda.

.… Appellant.

-Versus-

State of Odisha. .… Respondent.

For the Appellant :Sri C.S.Sethi & Associates.

For the Respondent :Sri S.K.Barik, Addl.P.P.

Date of argument : 30.10.2013.

Date of judgment :12.11.2013.

J U D G M E N T

1. This appeal has been preferred against the judgment,

dt.18.11.2011 passed by the learned A.C.J.M.-cum-A.S.J.,Bhubaneswar

in C.T.Case No.56/144/2010(A).

2. Briefly stated, the prosecution case is that on 11.11.2007 the

informant along with Forest Range staff,Khurda and A.P.R. Staff were

guiding the elephants to Chandaka Reserve Forest. At about 1 A.M.

hearing shouts, the informant went to the spot and found 25 to 30 people

being armed with deadly weapons, were assaulting Banabihari Das,

Forester and Godabarisha Hota, Forest Guard. While the informant was

2

trying to pacify the matter, the present accused along with others

assaulted them and the A.P.R. Force captured the present accused and

two others. The informant noticed burn injuries in the hands of

Banabihari Das and Godabarisha Hota and saw that their uniform were

damaged. The culprits had snatched away the search light, walky talky

and gold finger ring from the forest guard. The injured forest officials

were taken to Khurda Hospital for treatment and the informant lodged

FIR basing on which investigation was taken up and after completion of

investigation, chargesheet u/s.341, 324, 294, 353, 332, 379, 307,506 IPC

was submitted against the present accused along with two others namely,

Sukadev Swain and Basudev Swain.

3. After commitment, during course of hearing, when the case was

posted for accused statement, this accused remained absent. So, his case

was splited up. The case against two other accused persons proceeded

and they were acquitted by the learned ASJ vide judgment, dt.2.11.2011.

After apprehension of this accused, his statement was recorded on

16.11.2011 and vide judgment, dt.18.11.2011 the learned ASJ found the

accused not guilty of the offences u/s.307, 324, 506, 294 read with

Section 34 IPC and acquitted him from those offences. But the learned

ASJ found this appellant guilty of the offences u/s.323, 332, 353, 379

IPC and convicted him thereunder and sentenced him to undergo R.I. for

three months on each count with direction that the sentences shall run

concurrently and the period of detention be set off. The said judgment is

under challenge in this appeal.

4. The learned counsel for the appellant has challenged the judgment

of conviction and sentence on the ground that it is illegal and against the

evidence on record. He further contended that there is no independent

corroboration to the testimony of official witnesses which are full of

material contradictions and there is no evidence against the present

appellant. The learned defence counsel further submitted that where

evidence against the convicted appellant stood on similar footing as was

3

against two other co-accused persons acquitted by the trial Court, the

present appellant is entitled for acquittal. On the other hand, the learned

A.P.P supported the judgment of conviction passed by the lower Court.

5. PW-1 the APR Constable has stated that on 12.11.07 while he was

guarding the official jeep, he heard sound of assault on other staff such as

PWs-4,5 and 8. He admitted that he was not examined by the I.O. nor

stated these facts to the I.O. PW-1 has not stated anything implicating the

present accused. PW-2 the informant-Range Officer stated that he is

unable to identify the accused persons. He stated that he with Habildar

K.C.Dalabehera had been to the spot and the APR Force caught hold of 3

persons. In para-9 of his cross-examination he stated that when they

arrived at the spot, they found some people were assaulting to the forester

and forest guard, but he does not know them. PW-3 has stated only about

the seizure of uniform shirts under Exts.1 and 2.

6. PW-4 one of the injured stated that some villagers attacked them

with the flame which they had carried. But in para-7 of his crossexamination

he specifically stated that he cannot say the names, fathers'

names and the residential addresses or the profession of the accused

persons. He stated that the place of occurrence was a forest area and it

was dark by the time of occurrence. He also stated that he had not noticed

as to who assaulted whom. So also, he could not say as to who torn his

shirt nor he could say who assaulted him causing injuries on his hand. It

is pertinent to mention that in para-4 of his cross-examination he stated

that the accused Basudev Swain with others had assaulted him. He has

not specifically named the present appellant to be the assailant. He stated

that some villagers attacked them and forcibly took away his gold finger

ring, walky talky and damaged his uniform shirt.

7. PW-5 the APR Habildar stated that he does not know the accused

persons and he also does not know as to what happened to the forest

staff. He has not whispered anything if he with other APR staff and forest

staff had caught hold of this accused or any other accused. Even this

4

witness was not declared hostile by the prosecution. His evidence no way

incriminates the present accused rather his evidence renders the

prosecution case doubtful. PW-6 stated that he does not know the present

accused and also does not know anything about the occurrence of this

case. He was declared hostile by the prosecution. But nothing substantial

was elicited in his cross-examination to incriminate the present appellant.

PW-7 stated that in the occurrence night he heard shouts of some people

using obscene words and when he arrived at the spot he found PWs-4 and

8 were assaulted by the villagers and they apprehended the accused

persons. In the cross-examination he stated that it was a dark night and he

cannot say as to who assaulted whom and he also stated that when he

arrived at the spot, the occurrence was already over. So, his evidence is

not helpful to the prosecution to incriminate this appellant.

8. PW-8 another injured stated that he with PW-4 and APR Habildar

were guarding against the entry of the elephants to the Village-Pitapalli.

4 to 5 villagers of Pitapalli rushed towards him and one out of those

persons using obscene words, was instructing the villagers to assault him.

Out of them, the present accused and one Dina Mangaraj rushed towards

him and this appellant gave a push by holding his neck and he fell down.

Accused Dina Mangaraj assaulted on his both arms by means of a stick

which was illuminated with fire. They snatched away his money purse

and search light. He stated that he had sustained burn injuries along with

other injuries. The APR Force and Range Officer apprehended those 3

persons. But neither the Range Officer(PW-2) nor the APR Habildar

(PW-5) nor APR Constable (PW-1) have stated so. PW-10 the I.O. stated

that he had not seized any stolen property from this appellant. If in fact,

this appellant and Dina Mangaraj had snatched away the money purse

and search light of PW-8, then naturally the same could have been seized

from this appellant as he was allegedly caught redhanded at the spot. But

no stolen property has been seized from this appellant. PW-8 has not

stated that Dina Mangaraj took away that money purse and search light.

5

The I.O. stated that he had examined eight villagers of that village, but

all of them had not stated anything implicating the accused persons with

the alleged offences.

9. The I.O. has also admitted that at the time of occurrence about 30

to 40 villagers of Villages-Pitapalli, Gangapada and Bhatkudi were

present at the spot during the time of occurrence. But no independent

witness(villager) has been examined by the prosecution, even PW-1 and

PW-5 APR staff have not stated anything in support of the prosecution

case. PW-8 Bana Bihari Das stated that he had told the medical officer

that he was feeling pain, but the medical officer PW-9 has not stated so.

PW-8 stated that he had sustained burn injury along with other injuries,

but Injury Report Ext.6 shows that he had sustained only two burn

injuries, one on each hand. There is no mention in Ext.9 that PW-8 had

sustained any injury on his neck or other parts of the body which falsifies

the fact that this accused had caught of his neck and given fist blows. It is

significant to note that Dina Mangaraj was not even chargesheeted by

police. Out of 3 persons who were allegedly caught at the spot, two had

been acquitted by the lower Court.

10. The learned defence counsel placing reliance on a decision

reported in 2005(2) Acquittal 371, Patna High Court, Awadh Yadav-

Vrs.-State of Bihar submitted that where evidence against convicted

appellant stood on similar footing as was against other co-accused

acquitted by trial Court, appellate Court has to take the point into

consideration.

In the instant case, the learned lower Court has acquitted the

chargesheeted accused persons-Sukadev Swain and Basudev Swain, vide

judgment, dt.2.11.2011 in the original case. In the impugned judgment

the learned lower Court has also held that there is no evidence on record

that the present accused had shared his common intention with other

accused and in furtherance of such common intention he had assaulted

PWs-4 and 8.

6

11. As discussed above, there is no independent corroboration to the

prosecution case. The evidence of P.Ws.4 and 8 on which the prosecution

solely bases its case is contradictory to each other on material parts and

the same is not clear and clinching. Even the other official witnesses

including the informant-Ranger, the APR Habildar and APR Constable

do not support the prosecution case. The evidence of P.W.8 which is full

of contradictions and which does not get corroboration from any corner

including the medical evidence, does not inspire confidence. On a

combined reading of the evidence on record and for the reasons discussed

above, the present accused cannot be held guilty of the offences

u/s.323,332,353,379 IPC. Hence, I am inclined to hold that the impugned

judgment of conviction and sentence passed by the learned lower Court is

not tenable in law. Hence, it is ordered.

O R D E R

The Criminal Appeal is allowed on contest and the impugned

judgment of conviction and sentence, dt.18.11.2011 passed by the

learned A.C.J.M.-cum-A.S.J., Bhubaneswar in C.T. Case

No.56/144/2010(A) is hereby set aside. The appellant be set at liberty.

1st Addl. Sessions Judge,

Bhubaneswar.

The judgment having been typed to my dictation and corrected by

me and being sealed and signed by me is pronounced in the open court

today this the 12th day of November, 2013.

1st Addl. Sessions Judge,

Bhubaneswar.

Citation or Judjment Acquitted in section 353 of IPC in the absence of evidence

acquitted in section 353 of IPC

DISTRICT: HAILAKANDI

IN THE COURT OF JUDICIAL MAGISTRATE 1ST CLASS HAILAKANDI

G.R. Case No. 136/2010

( U/S 353/379 I.P.C.)

STATE
Vs.
Siraj Uddin Mazumdar
…………….Accused Person
PRESENT: Gautam Daimari
Judicial Magistrate 1st Class,Hailakandi
For the Prosecution: Monica Deb, Learned APP
For the Defence: Farid Ahmed Laskar,Md. Afjal Hussain Laskar, Ld. Counsels
Date of Recording Evidence:07/08/2014
Date of Argument.13/08/2014
Date of Judgment .25/08/2014
J-U-D-G-M-E-N-T
1. The brief facts of the prosecution case is that on 02/02/2010 when a confidential meeting
was going on against the president Saidbad G.P. at Zilla Parishad Office one Siraj Uddin
Mazumdar, member Saidbad G.P accompanied by other four members suddenly snatched
the proceeding register, no-confidence file etc. and also assaulted physically the
informant Badar Uddin Laskar. As a result Badar Uddin Laskar lodged an FIR with the
police Hailakandi and hence the instant case.
2. On receipt of information a case was registered at Hailakandi Police Station vide
Hailakandi P.S Case No.0055/2010 dated 02/0207/2010 under section 448/353/332/380
IPC of Indian Penal Code and on completion of investigation police submitted Charge
2 Sheet No.94/11 dated 31/05/2011 against Siraj Uddin Mazumadar under section
448/353/380 of Indian Penal Code.
3. Upon appearance of the accused Siraj Uddin Majumdar, the copies were furnished to him
and charges under section 353/379 of I.P.C. were framed; particulars of offence under the
said section of law were explained to the accused to which he pleaded not guilty and
claimed for trial.
1. During the trial the prosecution examined only two witnesses in order to prove its case.
At the conclusion of the prosecution evidence, the statements of the accused were
recorded Under Section 313 of the criminal Procedure Code, where he took the stand of
false implications. On being asked whether he wanted to adduce evidence in support of
him, the accused person refused to adduce any evidence for defending himself.
4. I have heard the arguments advanced by both the sides. The case record is also perused
along with the depositions on record. Accordingly the moot point for decision of the case
is framed as bellow……..
(i) Whether the accused Siraj Uddin Laskar on 02/02/2010 after
snatching the proceeding register, no-confidence file etc.
physically assaulted Badar Uddin Laskar.
DISCUSSION on EVIDENCE, DECISION and REASONS THEREOF
5. Now let me discuss the materials on record to arrive at a definite finding as regards the
point for determination.
PW1 deposed in his examination-in chief that he filed the ejahar vide Ex.1
wherein Ex. 1(1) is his signature. He deposed that the incident took place in 2010 and at
that time he was the Secretary of the Saidband G.P. On that day an altercation took place
between him and the accused and therefore the informant lodged the FIR. PW1 further
deposed in examination-in-chief that they settled the dispute mutually and they have been
in good terms with one another. PW1 further more deposed that he does not have any
objection to the acquittal of the accused person.
3
6. PW2 Faruk Uddin Choudhury deposed in his examination-in-chief that three/four years
ago at the Zila Parishad Office when a meeting was going on, suddenly, a dispute was
cropped up among them. Later, they settled the dispute mutually. While PW2 was crossexamined,
he deposed that on the date of occurrence there were a lot of people.
Therefore, he cannot say with whom exactly the occurrence took place. He further
deposed that he has not seen the occurrence with his own eyes.
7. Thus after going through the testimony of both the prosecution witnesses I am of the
view that there is no corroboration between the testimony of PW1 and PW2. The
testimony of PW1 is found to be highly inconsistent with that of PW2.
8. In the light of the discussion made hereinabove, I am of the view that the prosecution has
failed to prove by adducing cogent evidence the allegations brought against the accused
Siraj Uddin Laskar beyond all reasonable doubt. Therefore, the accused person are
acquitted and set at liberty forthwith. The bailor is discharged from all his liabilities and
the bail bond furnished to the accused stands cancelled.
9. This judgment is pronounced in open court in presence of parties and their advocates.
Given under my hand and seal of this Court on this the 25th day of August, 2014.
(Typed by me) (Gautam Daimari)
4
A-N-N-E-X-U-R-E
1. Witnesses for Prosecution
P.W. 1: Bodor Uddin Laskar
P.W.2: Faruk Uddin Choudhury
2. Witnesses for Defence
NIL
3. Court Witnesses
NIL
4. Prosecution Exhibits
Ext. 1: FIR
Ext. 1(1): Signature of Informant
5. Defence Exhibits
NIL
Gautam Daimari

Citation or Judjment Acquitted the respondent under Sections 325, 333 and 353 of IPC

Acquitted the respondent under Sections 325, 333 and 353 of IPC and High Court remain same that Judjment

(Ranjeet Singh Vs. State of M.P. & Ors.) 1 Cr.R. No. 869/2010

28/10/2014

Shri V.D. Sharma and Shri Dharmendra Rishishwar,

Advocates for the petitioner.

Smt. Sangeeta Pachauri, Public Prosecutor for the

respondent/State.

Heard.

This revision under Section 397 read with Section 401 of

Cr.P.C. has been filed by the petitioner challenging the order

dated 16.09.2010 passed by 3rd Additional Sessions Judge, Bhind

in Sessions Trial No. 173/2010, by which the learned Additional

Sessions Judge has acquitted the respondent No. 2 under

Sections 325, 333 and 353 of IPC and directed to institute a

criminal complaint under Section 193 of IPC before the Chief

Judicial Magistrate, Bhind, against the petitioner/complainant.

Briefly stated the facts of the case are that on the basis of a

Rojnamcha No. 327 dated 13.02.2009, Crime No. 85/2009 under

Section 325, 353 and 332 of IPC was registered at Police Station

Barohi district Bhind on the ground that when the police party

(including the petitioner Ranjeet Singh, Constable No. 744) were

checking the vehicles, accused Ripudaman Singh came in

Motorcycle No. HR26-K-9823. When his vehicle was being

checked, he became aggressive and attacked the petitioner-

Constable No. 744 Ranjeet Singh and hit on his face, due to

which blood came out. Injured Ranjeet Singh was sent for

(Ranjeet Singh Vs. State of M.P. & Ors.) 2 Cr.R. No. 869/2010

medical examination to district hospital. A teeth was broken. The

broken teeth was seized. Subsequently, FIR was lodged and

charge-sheet was filed under Section 325, 353 and 332 of IPC

against Ripudaman Singh respondent No. 2. During the course of

evidence, the petitioner Ranjeet Singh was examined as PW-6 on

16.09.2010. He did not support the prosecution story and even

he refused to identify the accused. He was declared hostile. For

these reasons, accused respondent No. 2 Ripudaman Singh has

been acquitted by the impugned judgment.

However, the learned Trial Court has held that the

petitioner Ranjeet Singh has been prima facie guilty of giving

false evidence. Therefore, he was given a notice to explain his

position which he refused to answer. The learned Trial Court

then ordered to file a complaint before Chief Judicial Magistrate

under Section 193 of IPC against the complainant/petitioner.

Aggrieved by this order, the petitioner has preferred this

revision challenging the same on the ground that the order is not

good in the eyes of law. The finding of the learned Trial Court is

erroneous. The conclusion arrived by the learned Trial Court is

based on surmise. The early statement under Section 161 of

Cr.P.C. cannot be taken to be a statement recorded in the Court.

Therefore, denial of the statement under Section 161 of Cr.P.C.

cannot be treated as false evidence. The FIR is not signed by the

petitioner. The petitioner also suffered injuries. Therefore, he

(Ranjeet Singh Vs. State of M.P. & Ors.) 3 Cr.R. No. 869/2010

could not identify the accused. It is also urged that the statement

given by the petitioner in the Court by any means is not perjury.

Therefore, the order of instituting a criminal complaint against

the petitioner is liable to be set aside.

Per Contra, learned Public Prosecutor vehemently

opposed the same and submitted that the petitioner has given

false evidence because of which the respondent No. 2 was

benefited and the case resulted into an acquittal. Hence, order of

the Trial Court is correct and in accordance with law.

Learned counsel for the petitioner placed reliance on B.K.

Gupta Vs. Damodar H. Bajaj and others reported in 2002

SCC (Cri) 1103, in which it is opined that:-

“There are two conditions on fulfilment of

which a complaint can be filed against a person

who has given a false affidavit or evidence in a

proceeding before a court. Firstly, that a person

has given a false affidavit in a proceeding before

the court and secondly, in the opinion of the court

it si expedient in the interest of justice to make an

enquiry against such a person in relation to the

offence committed by him.”

Reliance has also been placed by the learned counsel for

the petitioner on Santokh Singh Vs. Izhar Hussain and

another reported in 1973 SCC (Cri) 828, in which the Hon'ble

Allahabad High Court has held that:-

“Every incorrect or false statement does not

make it incumbent on the court to order

(Ranjeet Singh Vs. State of M.P. & Ors.) 4 Cr.R. No. 869/2010

prosecution. The court has to exercise judicial

discretion in the light of all the relevant

circumstances when it determines the question of

expediency. The power to make an order of

complaint can be exercised either by the court

which tried the original offence or a court to which

the trial court was subordinate. The court of the

Additional District Magistrate is not a court

subordinate to the High Court as provided by

Section 195(3), Cr.P.C.”

The learned counsel for the petitioner has given a detailed

of the narration of the petition and quoted T. Bhagi Patra Vs.

State of Orissa reported in 1996 Cri.L.J. 2423, in which it has

been held that:-

“Criminal P.C. (2 of 1974), S. 344, 154 –

Prosecution for giving false evidence – Based on

lodging of FIR – Impermissible – FIR not being

statement on oath in Court, does not attract S.

344.”

Having gone through the record of the Trial Court, it is

found that the complainant/petitioner was injured. He had been

examined by the Medical Officer and Ex. P-2 report was

submitted on the same day. His police statement as Ex. P-1

recorded on 23.09.2009. The spot map Ex. P-6 was prepared, in

which the petitioner has signed as a witness. Learned Trial Court

on the basis of the statement of the complainant/petitioner

acquitted the accused/respondent No. 2. But the Court held that

the petitioner/complainant was served with a notice regarding

(Ranjeet Singh Vs. State of M.P. & Ors.) 5 Cr.R. No. 869/2010

giving false evidence, which the complainant/petitioner did not

wanted to reply. The petitioner has actually given a false

statement or not is a matter of evidence but at this juncture

prima facie the learned Trial Court found it an appropriate case

for lodging a complaint. Learned Trial Court proceeded under

Section 340 of Cr.P.C. by recording a finding to the effect that

there has been a case of false evidence against the

complainant/petitioner and therefore, drafted a complaint and

sent the same to the Chief Judicial Magistrate for necessary

action. This is also the requirement of Section 195 of Cr.P.C. In

the case of T. Bhagi Patra (supra), prosecution was launched for

giving false evidence on the basis of FIR. Therefore, the Hon'ble

High Court of Orissa observed that it is impermissible.

So far as case of Santokh Singh (supra) is concerned, the

observation made by the Hon'ble Allahabad High Court is very

clear and unambiguous. True every incorrect or false statement

does not make it incumbent on the Court to order prosecution.

And exercising judicial discretion in the light of all the relevant

circumstances, in the present case, the order of the learned Trial

Court cannot be said to be improper.

So far as the other citation relied by the learned counsel

for the petitioner that two requirements for filing a complaint for

false evidence in a proceeding before the court are: (1) false

evidence (2) in the opinion of the Court, it is expedient in the

(Ranjeet Singh Vs. State of M.P. & Ors.) 6 Cr.R. No. 869/2010

interest of justice to make an enquiry for such offence

committed.

Keeping in view the fact that in the opinion of the Trial

Court, the petitioner has made a false statement on oath and

having the knowledge that the accused could be benefited by this

evidence, for the petitioner is a police constable, the learned

Trial Court has ordered to file a criminal complaint under

Section 193 of Cr.P.C. Therefore, that the two conditions are

fulfilled for filing a complaint.

The complainant/petitioner's statement before the Trial

Court cannot be termed as “some inaccuracy” which may be

innocent or inadvertent or immaterial. But it seems prima facie

case of deliberate falsehood. Therefore, there is reasonable

foundation for the charge of perjury and prosecution of the

offender is necessary in the interest of justice.

In this light of the above, it is found that there is no

illegality or irregularity in the impugned judgment. Hence, this

revision is devoid of substance and is hereby dismissed.

(S.K. Palo)

Judge

Abhi*