Mehmood Khan vs State Of J & K
2023 Latest Caselaw 351 j&K

                                                                     S. No. 02
      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                  AT JAMMU
                                              CRA 24/2015
                                 CrlM 1165/2022, IA 01/2015
                                 Reserved on:    10.11.2022
                                  Pronounced on:23.02.2023

Mehmood Khan                                         ...Petitioner/Appellant(s)

                    Through:-    Mr. Muzaffar Iqbal Khan, Advocate
                                 Mr. Umar Aajaz, Advocate
                                 Mr. Mazhar Ali Khan, Advocate
V/s
State of J & K                                       ...Respondent(s)

                    Through:-    Mr. Pawan Dev Singh, Dy. AG
CORAM: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
                                 JUDGMENT

1. By the medium of the instant criminal appeal, appellant/convict seeks quashment of the judgment of conviction dated 22.05.2015 and order of sentence dated 27.05.2015 rendered by the Court of Ld. Principal Sessions Judge Rajouri (for brevity, „the trial Court‟) in Criminal challan titled State of J&K vs. Mehmood Khan, whereby, the appellant has been convicted for commission of offences punishable under Sections 307 & 201 RPC and sentenced to undergo rigorous imprisonment for three (03) years and fine of Rs. 25,000/- under Section 307 RPC and rigorous imprisonment for one (01) year and fine of Rs. 2000 under Section 201 RPC.

2. Aggrieved of and dissatisfied with the impugned judgment of conviction, appellant/convict has questioned it‟s legality, propriety and correctness on the grounds, that the learned trial Court has not appreciated the evidence in it‟s right perspective and has ignored the material irregularities and improvements made by the witnesses during their depositions before the trial Court.

3. Allegations against appellant/convict as emerge out from the prosecution case are, that on 17.06.2004 a telephonic message was received at Police Station Darhal from Darhal Hospital to the effect that one Yasmeen Akhter has been admitted in the Hospital in an injured condition, on receiving the said information, a report was entered inRoznamchawhereby police recorded the statement of said Yasmeen Akhter who stated that she was married with Mehmood Ahmed (appellant herein) and for the last 4/5 years he had divorced her, out of their wedlock one child was born who is in her custody,

"that on 17.06.2004 at 9/9.30 pm she alongwith her mother and child were at home and abruptly noise of knocking at the door came, on asking, it was said that he is Mehmood, she opened the door and the appellant fired on her which hit on her chest, she fell down and blood started oozing out, on this her mother cried and shut the door, thereafter some persons came and she was taken to hospital at Darhal."

4. Learned counsel for the appellant has submitted that during the pendency of the instant appeal, compromise has been arrived between the appellant and his wife namely Yasmeen Akhter (complainant) and now they are residing together a happy married life and the pendency of the instant appeal is coming in the way of their matrimonial life.

5. Pursuant to the order of this Court dated 20.10.2022, the Registrar Judicial has recorded the statements of the appellant and Yasmeen Akhter (complainant) on oath, the same are placed on record and read as under:-

Statement of Mehmood Khan (appellant); Age : 51 years; S/o Sikander Hussain; R/o ShahdharaSharief, Tehsil Thanamandi, District Rajouri, on oath today i.e. 20.10.2022 : Stated, that I have amicably resolved all disputes and issues with complainant - Yasmeen Akhter. A compromise deed dated 01.07.2022, duly attested on 01.07.2022 before Notary, Jammu, has also been executed between us in this regard. In view of our compromise, I pray before the Hon‟ble Court to set aside the judgment / order of conviction and sentence dated 27.05.2015 passed by the learned Principal Sessions Judge Rajouri in case file no.70/ Challan titled "State v/s Mehmood Khan" for offence u/s 307/201/120-B RPC and 7/27 of Arms Act and compound the offences in the interest of justice.

Statement of Yasmeen Akhter (complainant); Age : 43 years; W/o Mehmood Khan; R/o ShahdharaSharief, Tehsil Thanamandi, District Rajouri, on oath today i.e. 20.10.2022 Stated, that I have amicably resolved all disputes and issues with my husband namely - Mehmood Khan. A compromise deed dated 01.07.2022, duly attested on 01.07.2022 before Notary, Jammu, has also been executed between us in this regard. In view of our compromise, I pray before the Hon‟ble Court to set aside the judgment / order of conviction and sentence dated 27.05.2015 passed by the learned Principal Sessions Judge Rajouri in case file no.70/ Challan titled "State v/s Mehmood Khan" for offence u/s 307/201/120-B RPC and 7/27 of Arms Act and compound the offences in the interest of justice.

6. From the bare perusal of the statements placed on record, it is evident that parties have entered into a compromise, whereby,the appellant and the CRA 24/2015

complainant-Yasmeen Akhter have settled their disputes amicably as they want to live peacefully without involving themselves in further litigation.

7. I have heard learned counsel for the parties and perused the record of the case. Hon‟ble Supreme Court of India in a case law titled Ramgopalvs. The State of Madhya Pradesh (Criminal Appeal No. 1489 of 2012) decided on 29 September 2021, while deciding two Criminal Appeals bearing Nos. 1488 and 1489 of 2012 wherein the convictions were rendered by the trial Court and upheld by High court of Madhya Pradesh, and while observing that the Supreme Court under Article 142 of the Constitution of India & High Court under Section 482 of Code of Criminal Procedure have powers to compound non-compoundable offences and set aside the conviction, in paras 19, 20, 21 held as under:-

19.We thus sumup and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences 'compoundable' within the statutory framework, the extra- ordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C. Nonetheless, we reiterate that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society;

(ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations.

20. Having appraised the afore-stated parameters and weighing upon the peculiar facts and circumstances of the two appeals beforeus, we are inclined to invoke powers under Article 142 and quash the criminal proceedings and consequently set aside the conviction in both the appeals. We say so for the reasons that: Firstly, the occurrence(s) involved in these appeals can be categorized as purely personal or having overtones of criminal proceedings of private nature;

Secondly, the nature of injuries incurred, for which the Appellants have been convicted, do not appear to exhibit their mental depravity or commission of an offence of such a serious nature that quashing of which would override public interest; Thirdly, given the nature of the offence and injuries, it is immaterial that the trial against the Appellants had been concluded or their appeal(s) against conviction stand dismissed; Fourthly, the parties on their own volition, without any coercion or compulsion, willingly and voluntarily have buried their differences and wish to accord a quietus to their dispute(s); Fifthly, the occurrence(s) in both the cases took place way back in the years 2000 and 1995, respectively. There is nothing on record to evince that either before or after the purported compromise, any untoward incident transpired between the parties;

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Sixthly, since the Appellants and the complainant(s) are residents of the same village(s) and/or work in close vicinity, the quashing of criminal proceedings will advance peace, harmony, and fellowship amongst the parties who have decided to forget and forgive any illwill and have no vengeance against each other; and Seventhly, the cause of administration of criminal justice system would remain uneffected on acceptance of the amicable settlement between the parties and/or resultant acquittal of the Appellants; more so looking at their present age.

21. Consequently, and for the reasons stated above, read with the settlement dated 13th September 2006, we find it appropriate to invoke our powers under Article 142 of the Constitution and quash the criminal proceedings in the aforesaid case. As a sequel thereto, all offences emanating out of the FIR leading to Criminal Appeal No. 1489 of 2012 stand annulled, and the judgment and orders passed by the trial court, appellate court and the High Court are set aside. Resultantly, the Appellants shall be deemed to have been acquitted of the charged offences for all intents and purposes.

08. In Kailash Chand v. State of Rajasthan, 2018(4) R.C.R (Criminal) 292, Hon'ble Supreme Court while compounding the offences u/ss 307/326 IPC and setting aside the orders of conviction and sentence passed by the courts below held as under:-

"[7]. Upon perusal of the record, it appears that the incident has occurred almost 30 years ago. Since the complainant/s and the appellant-accused belong to the same family and are living in the same house, they have buried their animosity and settled their disputes amicably in writing under an agreement letter dated 28.07.2017, copy of which is already placed on the file. The injured victims are brother and sister-in-law of the appellant. It is also stated in the aforesaid application for compromise/ compounding of offence that there is no untoward incident has ever taken place after the date of incident. [8]. Though the offences under sections 307 and 326 of the IPC are non-compoundable, having regard to the fact that the incident in the present case did not have an impact on the society in general, and having regard to the fact that the dispute between the parties has been settled amicably and there is no likelihood of the repetition of such incident, we allow the application for compromise/compounding of offence and set aside the orders of conviction and sentence passed by the courts below against the appellant by exercising our jurisdiction under Article 142 of the Constitution of India. The appellant is ordered to be acquitted of the charges levelled against him. Since the appellant is confined in jail, he is ordered to be released from custody forthwith if not required in any other case."

09. Ratios of the judgments of "Ramgopal" and "Kailash Chand" Cases (supra) lay down an invariable principle of law that the Supreme Court and the High Courts have powers enjoined under Article 142 of the Constitution of India

CRA 24/2015

and Section 482 of Cr.P.C respectively to compound non-compoundable offences beyond the metes and bounds of Section 320 Cr.P.C and set aside orders of conviction and sentence imposed by the courts below,where the parties have buried their animosity and settled their disputes amicably and there is no likelihood of repetition of such incident. Ratio of the judgments (supra) squarely apply to the facts of the case in hand.Adverting to the facts of the instant case,an application has been filed by the victim/complainant Yasmeen Akhter stating therein that she had made a false complaint to the Police, which was founded on false assertiondenying what she has earlier alleged in the FIR and in the charge-sheet filed against the appellant. She has further stated that after giving the statement she came to know and realize that the appellant who is her husband was not involved in the incident, as such, prays for compounding of the offences under Sections 307 and 201 RPC.Keeping in mind the fact that the parties i.e., appellant and victim-Yasmeen Akhter are related to each other as husband and wife, having left entire life ahead of them and belong to same family and living in same house and have buried their animosity and settled their dispute amicably in terms of compromise deed dated 01.07.2022 duly attested by notary Jammu, there is no untoward incident has ever taken place after the date of incident of 17.06.2004 (more than 18 years), and there is no likelihood of repetition of such incident, I allow the instant criminal appeal/application for compounding of offence u/ss 307/201 RPC and while exercising powers under Section 482 Cr.P.C, the FIR leading to instant criminal appeal stand annulled whereby the judgment and orders of conviction dated 22.05.2015/27.05.2015 rendered by the Court of learned Sessions Judge Rajouri are set aside. Resultantly, the appellant shall be deemed to have been acquitted of the charged offences u/ss 307/201 RPC and also discharged from the fine components specified in the impugned judgment for all intents and purpose.

10. Criminal Appeal stands disposed of in the above terms.

(Mohan Lal) Judge Jammu 23.02.2023 Vijay Whether approved for reporting Yes/No Whether the order is speaking Yes/No

CRA 24/2015