Girish Lal vs State Of Uttarakhand
2023 Latest Caselaw 177 UK

           IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
                   Criminal Jail Appeal No.29 of 2021

Girish Lal                                                      .......Appellant
                                          Vs.

State of Uttarakhand                                           .....Respondent

Mr. Pankaj Tangwan, Advocate, with Mr. Asif Ali, Advocate, for the appellant. Mr. T.C. Agarwal, D.A.G, for the State of Uttarakhand

Hon'ble Sharad Kumar Sharma, J (Oral)

An FIR by way of a Case Crime No.01 of 2018, was registered under sections 363, 366A and 376 of IPC, and under sections ¾, 5(j) (ii)/6 of the POCSO Act of 2012, at Revenue Sub Inspector Region, Nalgaon, Tehsil Narayanbagar, District Chamoli.

2. On the culmination of the Special Sessions Trial No.11 of 2019, "State of Uttarakhand Vs. Girish Lal", the appellant has been convicted by the impugned judgment dated 19.02.2021, whereby he has been imposed upon with the following sentences:-

(1) For the offence under section 363 of IPC, he has been sentenced to undergo five years of rigorous imprisonment, and a fine of Rs.5,000/- has been imposed.

(2) For the offence under section 366A of IPC, he has been sentenced to undergo five years of rigorous imprisonment, and a fine of Rs.5,000/- has been imposed.

(3) For the offence under sections 3/4 of POCSO Act of 2012, he has been sentenced to undergo five years of rigorous imprisonment, and a fine of Rs.5,000/- has been imposed.

(4) For the offence under section 5(j) (ii)/6 of the POCSO Act of 2012, he has been sentenced to undergo ten years of rigorous imprisonment, and a fine of Rs.10,000/- has been imposed upon the appellant. All the sentences have been directed to run concurrently.

3. This Criminal Appeal upon being preferred before this Court had already been admitted, by an order dated 10th May, 2021. Today, the matter is listed on the Compounding Application i.e. IA No.02 of 2022, preferred by the victim Smt. Shanti, and the "Pairokar" of the appellant, representing the present appellant, as he is languishing in jail.

4. In the Compounding Application, the appellant and the counsel have come up with the case, that after the judgment of the conviction dated 19.02.2021, the appellant is said to have married the victim Smt. Shanti, and that marriage has also been registered with the Registrar of Marriages, at Tharali, District Chamoli on 29.11.2019. In that regard, the marriage certificate has already been issued on 29.11.2019, which finds place on the record of the compounding application.

5. It has been further submitted that the victim is now of 21 years of age, according to the date of birth, which has been recorded in the Aadhar Card, coupled with the fact, that the victim has been blessed with the girl child on 20.09.2019, on account of the incident, which has happened, for which the trial was conducted. Since the dispute has been amicably settled, coupled with the fact that, the girl child, as born out of the said wedlock, they have sought a compounding of the offences.

6. The issue, which crops up was as to whether after the rendering of the judgment of conviction dated 19.02.2021, in relation to the heinous offences, for which the trial was conducted, and the present appellant has been convicted, as detailed above, whether at all, it could be compounded. The coordinate Bench of this Court in a judgment rendered in Criminal Appeal No.419 of 2014, "Sarfaraz @ Haider and others Vs. State of Uttaranchal" and in Criminal Appeal No.418 of 2014, "Sarfaraz @ Haider Vs. State of Uttaranchal", had considered the aforesaid aspect, that after the judgment of the conviction, which in the said case it pertains to the offences under sections 307, 323, 452, 504 and 506 of IPC, the Court took a view that even at an appellate stage, even as against those offences, which are not compoundable under section 320 of the CrPC, they could be considered for composition in the light of the judgment of the Hon'ble Apex Court as reported in 2013 (123) AIC 119 (SC), "Dimpey Gujral Vs. Union Territory through Administrator U.T. Chandigarh and others", and in the judgment reported in 2013 (1) SCC Criminal 160, "Gian Singh Vs. State of Punjab and another", the Court after considering the impact of the said judgment had observed that in the light of the provisions contained under sub- section (5) of section 320 of CrPC, if the said provision is read, in consonance to the aforesaid two judgments of Dimpey Gujral and Gian Singh, the accused, who has undergone the trial, and has been convicted, even at an appellate stage, the offence could be compounded, but with the leave of the Court. Sub-section (5) of Section 320 of the CrPC, is extracted hereunder:-

"(5) When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or, as

the case may be, before which the appeal is to be heard."

7. The said latitude granted by sub-section (5) of section 320 of CrPC, for composition of the non compoundable offences with the leave of the court has to be rationally construed by the Court within its limited powers, and it cannot be invariably utilized under all circumstances for composition of all nature of the offences, irrespective of the facts and circumstances of the case, which has been prevailing in the respective cases.

8. So far as the instant case is concerned, the victim Smt. Shanti Devi, is present in person, she admits the fact, that the girl child, who has been born to her, was out of the relationship which she had with the present appellant, who is presently languishing in jail, and he is serving the sentence as it has been imposed upon him by the judgment dated 19.02.2021. She submits that owing to the fact, that now they have married, and the marriage has been registered, and the proof of registration has been placed before this Court on record with the compounding application, and more sympathetically because of the fact that the girl child has born, who is presently living with the victim, she submits that the offence may be compounded because since they are now having a matrimonial relationship no purpose would be solved to proceed with the criminal appeal, as against the judgment of the conviction.

9. Owing to the principle laid down by the coordinate Bench of this Court in the judgment referred to hereinabove, and in the context of the provisions contained under sub-section (5) of section 320 of CrPC, this Court is of the view that this would be the one of the fittest case in which the appellate court too could grant leave to compound the offences, after the conclusion

of the trial, and rendering of the judgment of the conviction, particularly when, the factum of the marriage, is a fact, which is admitted by the victim, who is present in the Court, as well as, the learned counsel representing them.

10. In that view of the matter, since there is a registered marriage, and there happens to be a girl child born out of the relationship of the present appellant and the victim, the present compounding application would stands allowed, in the light of the principles laid down in the matters of Sarfaraz (Supra), as a result thereto the judgment of the conviction dated 19.02.2021, would hereby stands quashed in terms of the compounding application, while exercising my powers under sub-section (5) of section 320 of CrPC, as a result thereto, the appellant who is presently languishing in jail is directed to be released forthwith, without any conditions being imposed upon him, owing to the acquittal due to the quashing of the judgment of conviction dated 19.02.2021.

11. Subject to the aforesaid, the criminal jail appeal no.29 of 2021, would stands allowed.

(Sharad Kumar Sharma, J.) 11.01.2023 NR/