Durgesh Singh vs State Of U.P.
2019 Latest Caselaw 1831 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR 
 
Court No. - 30
 

 
Case :- CRIMINAL APPEAL No. - 14 of 2007
 

 
Appellant :- Durgesh Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Neeraj Sahu,Mohd. Usman Gani Khan,S.H. Ibrahim
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Chandra Dhari Singh,J.

01. The instant criminal appeal has been filed against the judgment and order dated  21.12.2006 passed by Additional  District  & Sessions Judge/F.T.C. No.3, Raebareli  in S. T. No.205 of 1999 (arising out of Crime No.30 of 1999, P.S. Mill Area)  whereby the Additional District  & Sessions Judge convicted the appellant Durgesh Singh for the offence punishable under Section 307 I.P.C. and sentenced him seven years R.I. and fine of Rs.5000/-. In default of payment of fine, he shall further undergo six months additional imprisonment.

02. Brief facts of the case are that on the written complaint of Ram Bahadur Yadav (Ext.Ka-1) an F.I.R. was lodged on 31.01.1999 at about 11.10 A.M. as Ext.ka-3. As per prosecution story, daughter of complainant was married to one Vedram son of Ram Gulam Yadav but Durgesh Singh son of Ram Bahadur pressurized the complainant to send her daughter to the house of Sundar Lal. The complainant did not agree with him and refused to do so. On 31.01.1999 at about 10.35 A.M., he was going to Raibareli by bicycle to sell milk. While going to Raibareli, when he reached near village Khaspari, he saw Durgesh Singh along with his friend standing adjacent the scooter. When the complainant reached near bridge, Durgesh Singh started firing on him by his contrymade pistol by which the complainant sustained bullet injury on back as well as on the left arm. When he made hue and cry, the accused Durgesh Singh along with his friend fled away from the place of incident. The injured-complainant was sent to the District Hospital Raibareli for the medical examination. After lodging the F.I.R., the Investigating Officer went to the place of incident and made a site plan and seized the articles related to the crime that is bicycle, milk container and prepared seizure memo Ext.ka-5. After completion of investigation the Investigating Officer submitted a chargesheet Ext.ka-6 before the concerned court below.

03. For proving its case beyond reasonable doubt, the prosecution has examined P.W.1 Ram Bahadur, P.W.2 Indra Dev Singh, P.W.3 Santosh Singh, P.W.4 Head Mohrir, Raj Narayan Shukla, P.W.5 Inspector Shyam Sundar Grover and P.W.6 D. P. Srivastava, Pharmacist. After completing deposition of the witnesses the statement of the accused has been recorded under Section 313 Cr.P.C. In the statement recorded under Section 313 Cr.P.C., the accused has denied all the allegations levelled against him and stated that he has been falsely implicated in the case due to enmity. Defence witness Satya Narayan (D.W.-1) was examined from the defence side. After hearing learned counsel for both the parties and after perusing the entire evidence on record, the trial court has convicted the accused-appellant and sentenced him as stated in para-1 of this order/ judgment.

04. Learned counsel appearing on behalf of the appellant submitted that now both the parties have entered into compromise and they do not want to pursue the matter further. He made limited prayer before this Court that as per several judgements/orders of the Hon'ble Supreme Court, the offence under Sections 326 and 307 read with 34 I.P.C. are not compoundable but said offence may be compoundable and accused may be acquitted on the basis of the compromise. He further submitted that as per several judgments of Hon'ble Supreme Court, the High Court can quash criminal proceedings having regard to the fact that parties have amicably settled the dispute and the victim has no objection, even though offences are non-compoundable.

05. In Gian Singh vs. State of Punjab and another, (2012) 10 SCC 303, the Hon'ble Supreme Court has observed that where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor.

06. Learned counsel for the appellant submitted that above observations are applicable to the instant case and, therefore, on the basis of settlement the entire criminal proceedings against the appellant may be quashed.

07. He has placed reliance upon a judgement of the Hon'ble Supreme Court in the case of B.S.Joshi & others vs. Haryana and another A.I.R., 2003 SC 1386. In the said case, Hon'ble Supreme Court has observed that while exercising powers under Section 482 Cr.P.C., the High Court can permit the compounding of such offences which is not mentioned in the two lists under Section 320 of the Cr.P.C.

08. An alternative argument of learned counsel for the appellant is that the incident took place 20 years ago. The accused-appellant has not made gunshot with intention to kill the complainant. He has not given gunshot injury on the vital part of the body. He further submitted that there was no intention/motive to kill complainant, therefore, conviction of the appellant may be converted into Section 324 I.P.C..

09. Learned counsel for the appellant further argued that the appellant has remained in jail about six months.

10. Learned A.G.A. appearing on behalf of the State submitted that there is full proved case against the appellant that he has committed offence punishable under Section 307 I.P.C. The appellant has given two bullets firing on the complainant and due to that he sustained injury on the left arm and back. He further submitted that the appellant had made firing on the complainant by his countrymade pistol twice with intention to kill him. The court below after considering the entire evidence available on record found that the present appellant is guilty of the offence punishable under Section 307 I.P.C. and sentenced him seven years' R.I. with fine of Rs.5000/-.

11. It is further submitted that first argument of learned counsel for the appellant cannot be sustainable as offence punishable under Section 307 I.P.C. cannot be compoundable as per latest judgement of Hon'ble Supreme Court in the case of Madhya Pradesh vs. Kalyan Singh passed in CRIMINAL APPEAL NO. 14 OF 2019 [Arising out of SLP (Crl.) No. 5632 of 2014].

12. I have heard the learned counsel appearing on behalf of the parties and perused the record.

13. First question, whether a criminal case, for an offence which is not provided to be compoundable under the provisions of Section 320 Cr.P.C. can be permitted to be compounded. 

14. Section 320  Cr.P.C. provides two different list of offences. The first relates to the offences, which can be compounded between the parties without obtaining any permission from the court and, thus, these offences are compoundable without the permission of the Court, or that for these offences the parties have right to close the prosecution in view of the compromise between the parties.

15. The other set of offences are those which can be compounded with the permission of the Court.

16. It is true and not disputed that Section 307 I.P.C. is not mentioned in any of the list in Section 320 Cr.P.C., hence, while exercising powers under Section 320 Cr.P.C., the subordinate Courts cannot permit compounding of such offence.

17. Now the question arises that whether the High Court while exercising extraordinary powers under Section 482 Cr.P.C., can permit compounding of offences and can quash criminal proceedings in view of the compromise between the parties.

18. Hon'ble Supreme Court in the case of Madhya Pradesh vs. Kalyan Singh (supra) has observed that "looking to the serious allegations against the accused, we are of the opinion that the High Court has committed a grave error in quashing the criminal proceedings for the offences under Sections 307, 294 read with Section 34 of the IPC solely on the ground that the original complainant and the accused have settled the dispute."

19. In the case of Gulab Das and Ors. V. State of M.P. (2011) 12 SCALE 625 the Hon'ble Supreme Court has held that despite any settlement between the complainant on the one hand and the accused on the other, the criminal proceedings for the offences under Section 307 of the IPC cannot be quashed.

20. In view of the legal pronouncement, the submission of learned counsel for the appellant that criminal proceedings under Section 307 I.P.C. against the appellant may be quashed on the basis of settlement cannot be sustained and, therefore, said submission advanced by learned counsel for the appellant has no merit and is rejected.

21. Now the second argument of learned counsel for the appellant is that appellant has given the bullet injury to the complainant without any intention to kill him. For examining this arguments/submissions of the appellant, I have to appreciate the deposition of all the witnesses and other material  available on record. As per P.W.1, complainant, when he reached near village, where accused appellant along with his friend were waiting near bridge, the appellant started firing on him by countrymade pistol. Due to that he sustained injury on left arm and on back side of the body. When he made hue and cry, they fled away from place of incident. As per medical report, the complainant has received two bullet injuries, one on left arm and other on back side of the body, which were dangerous to life.

22. The one of the argument raised on behalf of the appellant is that the very fact that the shots are shown to have been fired by the appellant not on the vital part of the body and not in danger to life, goes to show that the appellant did not have any intention to kill him.

23. For the purpose of Section 307 I.P.C. what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence 'of attempt to murder'. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place.

24.  Looking the entire evidence on the record and other facts, finding of the trial court that prosecution has been able to establish that appellant had fired upon the victim with an intention to kill him deserves to be set aside and is hereby set aside and the conviction of the appellant is converted from Section 307 I.P.C. to Section 324.

25. In view of the aforesaid reasons the criminal appeal is partly allowed. The sentence awarded by the trial court is modified to the extent of sentence already undergone by him. The fine awarded by the trial court is hereby maintained. The appellant is  directed to deposit the fine within two months from today. In case the amount of fine is not deposited within the stipulated period, the appellant will undergo simple imprisonment of two months. The appellant is on bail. His bail bond is canceled. Sureties are discharged. He need not surrender, in case, he is not wanted in any other case.

26.  Let a copy of this judgment/order be sent to the trial court concerned for compliance and send back the trial court record.

Order Date :- 28.3.2019

Asha