Babu Ram & Ors. vs State
2011 Latest Caselaw 5696 Del

$~02
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+              CRL.APPEAL No. 47/2005

%              Judgment delivered on: 24th November, 2011

        BABU RAM & ORS.                        ..... Appellants
                     Through:Mr.Raju Dudani, Mr.Ravi Bhardwaj
                     & Ms.Shilpi Mishra , Adv.

                       versus

        STATE                                           ..... Respondent
                                Through : Ms.Rajdipa Behura, APP for State
                                Mr.Jaideep Malik & Mr.Karan Kumar, Advs
                                for complainant.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers
         may be allowed to see the judgment?                    Yes
     2. To be referred to Reporter or not?                      Yes
     3. Whether the judgment should be reported                 Yes
        in the Digest?

SURESH KAIT, J. (Oral)

1. Mr.Raju Dudani, learned counsel for appellants submits that on the complaint of PW1 Shri Rajvir Singh, vide FIR No.200/1999 a case under Section 147/148/149/307 Indian Penal Code, 1860 was registered at police station against the appellants besides two other accused persons, who have since been acquitted.

2. Further submits that vide judgment dated 10.12.2004, learned Trial Court held the guilty appellants and vide order on sentence dated 15.12.2004, appellant Babu Ram and Virender Kumar were sentenced to undergo RI for 05 years each with fine of ` 1,000/- each for the offence under Section 307 Indian Penal Code, 1860. Both of them further sentenced to undergo RI for 01 year with fine of ` 500/- each for the offence under Section 324 Indian Penal Code, 1860. Appellant Ravinder and Rajesh were also held liable under Section 307/324 Indian Penal Code, 1860, however, by taking a lenient view, both of them were sentenced to RI for 03 years with fine of ` 1,000/- each under Section 307 Indian Penal Code, 1860 and further sentenced to undergo RI for 01 year with fine of ` 500/- each for the offence under Section 324 Indian Penal Code, 1860. Benefit of Section 428 Cr. P.C. was also extended to all the appellants and both the sentences to run concurrently.

3. Learned counsel for the appellants submits that fine already stood deposited with the Trial Court.

4. Mr.Dudani, learned counsel for appellant submits that he is not disputing the conviction order, and submits that appellant Babu Ram has already undergone 09 months; appellant Virender Kumar has already undergone 01 year and 05 months; and appellants Ravinder and Rajesh have already undergone 04 months and 23 days into custody as on today.

5. He further submits that during trial, the complainant

compromise the matter due to the intervention of the friends and local persons; as the complainant and appellants are staying in the same vicinity.

6. To this effect, learned counsel has drawn the attention of the Court to para No.30 of the judgement dated 10.12.2004, wherein learned Trial Court has observed as under:-

"The prosecution had already examined material witnesses when the case was fixed for remaining prosecution evidence for 18.12.02. Strange enough the accused persons moved application to recall PW1 Rajbir Singh, PW2 Om Singh, PW5 Shri Chand and PW10 Ajay Pal who had supported the prosecution case against the accused persons. This application was allowed on depositing Rs.10,000/- with DLSA vide order dated 18.11.02 by my ld. Predecessor and all these witnesses were ordered to be recalled for further cross examination. All these witnesses appeared and was cross examined by the ld.Defence Counsel. All the witnesses in their cross examination took somersault and categorically exonerated all the accused persons for the commission of offence. These witnesses were got declared hostile by the ld.Addl.P.P. for the State and were cross examined. Suggestions were put to these witnesses that the witnesses made false statement due to compromise with the accused persons."

7. All the appellants are personally present in Court. Appellant Babu Ram deals building materials like brick, stone dust, cement etc. Appellant Virender Kumar seems to be not in a perfect health.

Appellant Ravinder Kumar and Rajesh are also sons of appellant Babu Ram and both are helping in the abovesaid vocation of appellant Babu Ram.

8. Complainant is present in the Court with his counsel Mr.Jaideep Malik. Learned counsel for the complainant, on instructions from complainant, submits that in fact he had compromised the matter before the conviction of the appellants, due to the reasons they are staying in the same locality and he wanted to maintain the brotherhood and harmonious relations between themselves.

9. Recently, the Apex Court in Gulab Dass & Ors v. State of Madhya Pradesh vide order dated 16.11.2011 has answered negatively on the question whether the offence under Section 307 Indian Penal Code could be allowed to be compounded with regard to the compromise arrived at between the parties.

10. I note from Gulab Dass & Ors (supra) that the settlement/ compromise arrived at between the parties can be taken into consideration for the purpose of determining the quantum of sentence to be awarded to the appellants. It is further recorded that in appraisal approach which the Supreme Court has adopted in the cases referred to above. Even prayer for compounding has been declined, while taking the settlement between the parties into consideration at the time of dealing with the question of sentence, apart from the fact that the settlement between the parties. The parties were related to each other. Finally, a view taken by the Supreme Court that since the parties have

amicably settled the matter; they are closely related to each other and to give the quiets to the controversy, and rehabilitated normalcy between them. While, upholding the order conviction and order on sentence recorded by the Courts below, the Apex Court modified the sentence of the appellants to the period already undergone by them.

11. The facts of the instant case is similar to the facts of Gulab Dass & Ors (supra) therefore, I also resorted to same view and modify the order on sentence order dated 15.12.2004 to the extent already undergone by all four appellants.

12. Accordingly, Criminal Appeal No.47/2005 is partly allowed and stands disposed of.

13. In view of above, Criminal M.A.18374/2011 renders infructuous and accordingly disposed of as such.

14. No order as to costs.

SURESH KAIT, J

November 24, 2011 Mk