Mohd. Sahid vs The State Of Nct Of Delhi
2014 Latest Caselaw 937 Del

$-6
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  DECIDED ON : 20th FEBRUARY, 2014

+                    CRL.A. 1285/2012

       MOHD. SAHID                                   ..... Appellant

                           Through :    Mr.Sunil Upadhyay, Advocate.


                           versus

       THE STATE OF NCT OF DELHI                     ..... Respondent

                           Through :    Mr.M.N.Dudeja, APP.
                                        Complainant in person.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Open Court)

1. Mohd. Sahid (the appellant) was convicted under Section 307

IPC by a judgment dated 27.09.2012 of learned Additional Sessions Judge

in Sessions Case No. 77/11 arising out of FIR No. 35/11 PS Ranjit Nagar

registered under Section 307 IPC. By an order dated 28.09.2012 he was

sentenced to undergo RI for seven years with fine ` 50,000/-.

2. During the course of hearing of the appeal, the appellant gave

up challenge to the findings on conviction and prayed to modify the

sentence order. It was pointed out by the appellant's counsel that the

victim has settled the dispute with the appellant and he has no objection to

release him for the period already undergone. Earlier Crl.M.A.No.

8086/2013 was moved under Section 482 Cr.P.C. for quashing of the

proceedings. Since the offence under Section 307 IPC was non-

compoundable the application was dismissed by an order dated

20.05.2013 with the observation that the factum of settlement will be

considered at the time of disposal of the appeal on merits and to consider

the quantum of sentence (if any). On 21.01.2014, the Investigating Officer

was directed to verify if the matter has been settled by the complainant

with his free consent. He was also directed to ensure the presence of the

complainant before this Court. Today, the complainant has appeared and

informed that he has settled the dispute with the appellant without any fear

or pressure. He prays to release the appellant. On being specifically asked

if he desired compensation to be paid by the appellant, he categorically

stated that he did not need any compensation particularly when the

appellant suffering from various ailments was physically incapable to

generate any income. Learned Addl. Public Prosecutor has given no

objection to modify the sentence order in view of the peculiar features of

the case where the matter has been settled under Section 307 IPC.

3. Both the parties are closely related to each other. The

appellant who is the nephew of the victim inflicted injuries to his maternal

uncle. The injuries were opined 'simple' in nature. Nominal roll dated

14.02.2014 reveals that the appellant has undergone sentence for one year,

six months and twenty days besides remission for four months and twenty

one days as on 14.02.2014. He has clean antecedents and is not involved

in any other criminal case. His jail conduct is satisfactory. The appellant

was aged about 25 years on the day of incident. He is yet to marry and his

mother is dependent upon him. The parties are residing in the same

vicinity. He was granted bail during pendency of the trial after he

remained in custody at the initial stage of investigation.

4. This Court in 'Shahzad vs. State', Crl.A. 358/2012, decided

on 22.02.2013 observed :

"4. The offence punishable under Section 307 IPC in case hurt is caused to any person is punishable with imprisonment for life or imprisonment which may extend to ten years and fine. The Appellant has been sentenced to undergo RI for a period of five years and to pay fine of `1,000/- or in default to undergo SI for three months. As per the nominal roll received on 15.04.2012 the Appellant had already served imprisonment for five months and 22 days and had earned remission of one month and ten days. The period of another ten months has passed. Thus, inclusive of remission, the Appellant has been in custody for a period of about 17-18 months.

5. In Gian Singh v State of Punjab & Anr. 2012 (9) SCALE 257, the three Judges Bench of the Supreme Court dealt with the issue of quashing of FIR in non compoundable offences. The Supreme Court ruled that the proceedings for non compoundable offences can be quashed in appropriate cases except in heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Para 57 of the report is extracted hereunder:-

"57. The position that emerges from the above discussion can be summarised 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 plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and 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 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 serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like 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 pre-dominatingly civil flavour stand on 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, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put 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 would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

6. In Ishwarsingh v. State of Madhya Pradesh (2008) 15 SCC 667, the question of compounding of offence under Section 307 IPC fell for consideration before the Supreme Court after the conviction of the accused by the Trial Court. The Supreme Court laid down that although the offence punishable under Section 307 IPC is non compoundable but, at the same time, the fact may be taken into consideration for the purpose of reduction of sentence. Paras 12, 13 and 16 of the report are extracted hereunder:-

12. Now, it cannot be gainsaid that an offence punishable under Section 307 IPC is not a compoundable offence. Section 320 of the Code of Criminal Procedure, 1973 expressly states that no offence shall be compounded if it is not compoundable under the Code. At the same time, however, while dealing with such matters, this Court may take into account a relevant and important consideration about compromise between the parties for the purpose of reduction of sentence.

13. In Jetha Ram v. State of Rajasthan (2006) 9 SCC 255, Murugesan v. Ganapathy Velar (2001) 10 SCC 504 and Ishwarlal v. State of M.P. (2008) 15 SCC 671 this Court, while taking into account the fact of compromise between the parties, reduced sentence imposed on the appellant-accused to already undergone, though the offences were not compoundable. But it was also stated that in Mahesh Chand v. State of Rajasthan 1990 Supp SCC 681 such offence was ordered to be compounded.

x x x x x x x x x

16. For the foregoing reasons, the appeal deserves to be partly allowed and is accordingly allowed by maintaining the conviction recorded by the trial court and confirmed by the appellate court but by reducing the sentence already undergone by the appellant. The sentence of payment of fine is not disturbed. If the appellant has not paid the amount of fine, he will pay such amount within four weeks from today."

7. Thus, relying on three Judge Bench decision in Gian Singh and the report in Ishwarsingh, I alter the sentence imposed upon the Appellant to the period already undergone by him. The fine imposed, if not, deposited shall be done so within two weeks."

5. Considering the facts and circumstances of the case, the

sentence order is modified and the appellant is awarded RI for two years

with fine ` 10,000/- and failing to pay the fine to undergo SI for one

month.

6. The appeal stands disposed of in the above terms. Trial Court

record be sent back forthwith. Copy of the order be sent to the

Superintendent Jail for information.

(S.P.GARG) JUDGE

FEBRUARY 20, 2014 /tr