Lakhan Singh and Others vs The State of M.P.

Subhash Kakade, J.

Matter finally heard with the consent of learned counsel for the parties.

Being aggrieved by the impugned judgment dated 25.11.2004, delivered in Sessions Trial No. 140/2004, by the II Additional Sessions Judge, Shivpuri, whereby the appellant No. 1 Lakhan has been convicted under Section 307 of IPC and sentenced to rigorous imprisonment for three years and fine of Rs. 10,000/- whereas other appellants No. 2 to 4 namely Birbal, Arjun Singh and Raghuvar Singh have been convicted under Section 307/34, IPC and sentenced to undergo rigorous imprisonment for three years and fine of Rs. 10,000/-, with default stipulations. Appellant No. 4 Raghuwvar has further been convicted under Section 294, IPC and sentenced to rigorous imprisonment for six months.

The prosecution case in short is that on 16.02.2004 when complainant Naresh was returning with his friends Kumer Singh and Prakash to his home, at about 07:00 pm near culvert, situated at village Bairad, the appellants restrained the complainant and at that time the appellant No. 1 Lakhan fired by a gun which was hit on his right thigh, so he fell down. The matter was reported to the Police Station Berad. Complainant Naresh was medically examined and after due investigation the appellants were charge-sheeted.

After committal proceedings learned trial Court framed the charges against the appellants for the offences punishable under Sections 307/34 and 294, IPC. The appellants abjured their guilt, therefore, they have set for trial.

Prosecution to prove his case examined star witnesses Naresh as PW-1, and other witnesses Kumer Singh and Prakash as PW-2 and PW-3. Dr. A.K. Morya, who medically examined the complainant Naresh examined as PW-5. Dr. M.L. Agrawal (PW-6) gave report after x-ray observation. Investigating Officer ASI Dinesh Kumar Sharma (PW-8) was examined along with other Police Officer i.e. Head Constable Sobransingh (PW-7) and Rajendra Sharma (PW-9) and Head Constable Ramavtar Singh (PW-10). One Surendra (PW-4) has also been examined by the prosecution. Documents Exh. P-1 to Exh. P-10 (C) were exhibited. During cross-examination document Exh. D-1 is also exhibited. The defence does not choose to examine any witness.

The learned trial Judge after appreciation of the prosecution evidence convicted and sentenced the appellants as mentioned above. Hence, this appeal has been preferred by the appellants.

Shri Vilas Tikhe and Shri Ashok Jain, learned counsel for the appellants submit that there was a dispute between the complainant Naresh and appellant Lakhan for sale and purchase of immovable property for consideration of Rs. 2 lacs. The complainant had taken advance of Rs. 50,000/- from the appellant Lakhan. The complainant Naresh does not want to return this amount, therefore, he falsely lodged an FIR. It is further submitted that the ingredients of Section 307, IPC are not attracted as Dr. Morya (PW-5) found both the injuries inflicted on the right thigh of Naresh was simple in nature. Finally learned counsel for the appellants have drawn attention to the fact that both the parties have entered into compromise, which is verified on 11.03.2015 by the Principal Registrar of this Court. In view of the aforesaid, prayer is made to acquit the appellants.

Per contra, Shri Anil Kumar Shrivastava, learned Panel Lawyer has submitted that after due appreciation of prosecution evidence, the learned trial Judge found the offence proved against the appellants, which requires no interference.

After having heard learned counsel for the parties and thereafter going through the record as well as the impugned judgment this appeal deserves to be allowed, on the basis of compromise.

After appreciation of the evidence of complainant Naresh (PW.1) and other witnesses Kumer Singh (PW-2) and Prakash (PW-3) this fact is proved beyond doubt that complainant Naresh suffered gunshot injury.

In the matter of gunshot injury statement of doctor as well as their reports are of much more importance and decisive to ascertain the nature of injury. For the offence punishable under Section 307, IPC act of the accused, nature of injury and part of the body where injury is inflicted are much more important.

During cross-examination Dr. Morya (PW-5) admitted that the bullet does not hit the bone, it touches only flesh. Dr. Morya (PW-5) while admitting this fact that every firearm having peculiar size of bullet and also admitted that he does not find any bullet in the thigh of the complainant Naresh. These admissions are creating grave doubtful situation.

Dr. Morya (PW-5) does not gave any opinion regarding the nature of injuries and to ascertain the nature of injuries he recommended the patient for x-ray examination. Dr. M.L. Agrawal (PW-6), examined complainant Naresh and vide his report Exh. P-3, opined that there was no fracture in bone of the thigh of complainant Naresh. The cumulative effect of statements of both the doctors and the x-ray report goes to show that the nature of injury inflicted even by gunshot on the right thigh of the complainant Naresh was simple in nature.

Every part and place of the human body is important but when the matter relates to the nature of injury as well as on the point of sentence the words comes into the picture whether the suffered part of the body is vital or not. In this regard it can be very well presumed that thigh of a person is important part of the body but the injury found on the right thigh of the complainant was simple in nature. The learned trial Court failed to appreciate this fact. Looking to the nature of injury though by gunshot and part of the body, at the most offence under purview of Section 324, IPC is made out.

In the above facts and circumstances, case of appellants squarely falls under the purview of the offence punishable under Section 324/34, IPC instead of Section 307/34, IPC.

It is pertinent to mention here that compromise proceedings have been recorded between the appellants and complainant Naresh before the Principal Registrar of this Court on 11.03.2015 in which, both the parties stated that they have compromised the matters amicably without any undue influence or pressure. They are identified by their counsel and their signatures are also there.

In the light of the aforesaid factual position it is apparent that the appellants and the complainant have entered into compromise voluntarily and without any fear, undue influence or pressure.

In light of above facts and circumstances, the appellants can be convicted and sentenced under Section 324/34 of IPC. The conviction of appellants is partly upheld. They are convicted under Section 324/34 of IPC instead of Section 307/34 of IPC.

Now the question remains with regard to the sentence to be imposed under Section 324/34 to the appellants.

The parties have settled their all disputes and want to compromise the matter, but Section 324/34, IPC is not compoundable as per the provisions of Section 320 (2)of Cr.P.C.

The Apex Court in the case of Gian Singh v. State of Punjab and another 2012 AIR SCW 5333 considered the relevant provisions of the Code and concluded as under:-

"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."

It is pertinent to mention here that appellant No. 1 Lakhan Singh was under custody during the trial from 26.05.2004 to 25.11.2004 (6 months), appellant No. 2 Birbal was under custody since 17.02.2004 to 19.05.2004 (more than 3 months), appellant No. 3 Arjun Singh remained in custody from 26.05.2004 to 14.06.2004 (20 days) and appellant No. 4 Raghuwar Singh was under custody during trial since 26.05.2004 to 08.06.2004 (14 days). So far as fine amount is concerned, it is stated by learned counsel for the appellants that the same has already been deposited.

In light of the composition as well as custody period of the appellants, and as it is held above that the conviction of the appellants is converted from Section 307/34 of IPC to Section 324/34 IPC, hence, the sentences imposed upon the appellants are reduced to the period already undergone by them. Appellants are on bail, their bail bonds are discharged.

This appeal is partly allowed to the extent indicated above.