Vinod Sharma vs State Of Nct Of Delhi
2008 Latest Caselaw 2034 Del

                          "reportable"
                                                       6 & 7#

*     HIGH COURT OF DELHI AT NEW DELHI

+ CRL. APPL. No. 520/2008 & Crl.M.A.12154/2008


                                  Date of decision : 19.11.2008

#     VINOD SHARMA                          ..... Appellant
                   Through: Mr. V. Shekhar, Sr. Adv.
                            Mr. Ashwani Bhardwaj, Adv.

                              Versus


$     STATE OF NCT OF DELHI            .... Respondent
^              Through : Mr. Lovkesh Sawhney, APP.
                         Mr. K.P. Bhargava, Adv. for
                         complainant.

                               AND

    CRL. APPL. No. 527/2008 & Crl.M.A.12155/2008


      RADHEY SHYAM & ORS.        ..... Appellants
              Through: Mr. V. Shekhar, Sr. Adv.
                       Mr. Ashwani Bhardwaj, Adv.

                              Versus


      STATE OF NCT OF DELHI            .... Respondent
               Through : Mr. Lovkesh Sawhney, APP.
                         Mr. K.P. Bhargava, Adv. for
                         complainant.
%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

Crl.Appeal Nos. 520/2008 & 527/2008                     Page 1 of 9
      (2) To be referred to the reporter or not?      Yes

     (3) Whether the judgment should be reported
         in the Digest ?                             Yes

                        JUDGMENT

ARUNA SURESH, J. (Oral)

1. By this common order, I shall dispose of Criminal

Appeal No.520/2008 titled 'Vinod Sharma vs. State

of NCT of Delhi' and Criminal Appeal No.527/2008

titled 'Radhey Shyam & Ors. vs. State of NCT of

Delhi' as both the appeals have arisen out of the

judgment of conviction dated 14.05.2008 and order

on sentence dated 22.05.2008 of the trial court

passed in Sessions case No.91/07 whereby the

appellants were convicted for having committed

offences under Sections 147/148/454/511 read with

Section 149 IPC, 307 read with Section 149 IPC,

353 read with Section 149 IPC, 506 read with

Section 149 IPC and 27 of the Arms Act read with

Section 149 IPC and were ordered to suffer

rigorous imprisonment (RI) for five years with fine

of Rs.1,000/- in default to undergo six months R.I.

for offence punishable under Section 307/149 IPC,

and RI for one year for offence punishable under

Section 454 read with Section 511/149 IPC with

fine of Rs.1,000/- in default three months simple

imprisonment and they were further sentenced to

undergo RI for one year for offence punishable

under Section 353/149 IPC and one year RI for

offence punishable under Section 506/149 IPC and

another sentence for one year RI for the offence

punishable under Section 147 read with Section

148 IPC. Besides, the appellants were also

sentenced to undergo RI for one year for the

offence punishable under Section 27 of the Arms

Act and these sentences were ordered to run

concurrently and benefit of Section 428 Cr.P.C. was

also given to all the appellants.

2. Briefly stated the facts of the case are that Bharat

Vidhu Pandey had purchased a plot No.K-2068,

C.R. Park from one R.N. Ghosh on 4.9.2000 and on

12.10.2000 he took possession of the said plot from

R.N. Ghosh and the tenant Vikesh Majithia by the

orders of the court. Mr. B.V. Pandey had engaged

the services of a guard to take care of the plot

purchased by him. However, on 12.1.2001 a civil

suit was filed by one Om Parkash Aggarwal

claiming himself to be the owner and he also tried

to take possession of the impugned plot. On

29.10.2001, a Local Commissioner was appointed

by the Civil Judge to inspect the plot. Mr. B.V.

Pandey reached his plot at about 3.15 P.M. and his

guards, namely, Anwar, Rakesh Yadav, Avdesh

Singh Chauhan and Govind Singh were inside the

plot. They were waiting for the Local Commissioner

when three boys came in a white Maruti Zen and

after getting down from the car, they started

banging the door of the plot. Mr. B.V.Pandey

enquired from those persons and also told them

that he would call the police. The boys ran away.

However, Mr. B.V. Pandey did make a call to the

police and SI Arun Tyagi along with his staff

reached the plot. On the same day at about 5.30

P.M. 8/9 persons came at the plot in a green colour

Zen and white Zen and on motorcycle. Om Prakash

(since acquitted) and Radhey Shyam were also

amongst those 8/9 persons. Complainant was

abused and dragged towards the road. They also

threatened the guards to open the door or they

would shoot them. Even the police officers present

there, namely, Batti Lal and Ct. Kazormal tried to

stop them and they were manhandled. One of those

8/9 persons started breaking open the door with

hammer and chisel and complainant tried to get

himself released and threatened those persons that

he would call the police. On this, appellant Radhey

Shyam asked one of the persons to shoot

B.V.Pandey. One of the persons who was present

there fired at B.V. Pandey who had been caught

hold of by appellant Gajender Sharma.

Unfortunately, the bullet hit on the foot of Gajender

Sharma. Complainant managed to rescue himself

and informed the police. On seeing the police, the

person who had fired at the complainant and

another person who was also present with him fled

away in a white Zen car. The remaining six

persons, namely, Surender, Satbir, Auranzeb,

Vinod Sharma, Gajender Sharma and appellant

Radhey Shyam were apprehended at the spot.

3. The learned trial court on the basis of prima facie

evidence available on record was pleased to frame

charges under Sections 147/148/454/511 read with

Section 149 IPC, 307 read with Section 149 IPC,

353 read with Section 149 IPC, 506 read with

Section 149 IPC and 27 of the Arms Act read with

Section 149 IPC against all the appellants. After

completion of the trial and after offering

opportunities to the appellants to be heard, the

trial court convicted the appellants for the

abovesaid offences and sentenced them as

observed earlier.

4. During the pendency of the appeals, the appellants

filed their respective applications seeking

suspension of sentence and their release on bail till

the pendency of the appeals. After consideration of

the applications vide separate orders of different

dates, the orders on sentence passed against them

were suspended and they were released on bail till

the pendency of the appeals. After they were

released on bail, it seems the parties have

reconciled their disputes and compounded the

offences in terms contained in Deed of Settlement

dated 25.09.2008. Consequently, applications

being Crl.M.A. Nos. 12154/2008 and 12155/2008

respectively have been filed by the appellants

under Section 482 Cr.P.C. for compounding of the

offences.

5. Undisputedly, none of the offences for which the

appellants have been convicted and sentenced are

compoundable. At the stage of appeal when the

FIR has culminated into conviction of the

appellants, no compounding can be permitted for

the offences which are otherwise non-

compoundable. The applications, therefore, under

the law are not entertain-able and deserve

dismissal and are accordingly dismissed.

6. However, in view of "Badrilal v. State of M.P.,

2005 SCC (Crl.) 1597" and keeping in mind the

facts and the peculiar circumstances of the case

when a joint compromise petition has been filed

along with a compromise deed for recording of

compromise, the court can take into consideration

the effect of compromise while awarding sentence

on the appellants.

7. It is also pertinent to mention here that all the

other civil as well as criminal litigations inter se the

parties have been withdrawn or dismissed in view

of the settlement. I am told that the civil suit filed

by Om Prakash Aggarwal has also since been

dismissed by the court.

8. Hence, considering the totality of the facts and

circumstances of the case, interest of justice would

suffice if the sentences imposed upon the

appellants are reduced to the undergone period

which they have already suffered. Hence, the

order on sentence dated 22.05.2008 stands

modified accordingly. The fine as imposed by the

trial court on the appellants has already been

deposited. However, appellants are directed to

deposit a sum of Rs.50,000/- as compensation with

Delhi Legal Services Authority, Patiala House, New

Delhi.

9. Appeals are accordingly disposed of.

10. Registry is directed to place attested copy of the

order in Criminal Appeal No.527/2008 also.

11. Attested copy of the judgment be sent to the trial

court, Superintendent Jail as well as to Delhi Legal

Services Authority, Patiala House, New Delhi for

information.

ARUNA SURESH (JUDGE) NOVEMBER 19, 2008 vk