Shankar Singh @ Voman Kumar vs State Of Chhattisgarh

The present appeal has been filed against the judgment of conviction and order of sentence dated 28.11.2001 passed by the learned 3rd Additional Session Judge (FTC) Raigarh in ST No.108/97, whereby the appellant has been convicted and sentenced as under:-

Sr. No.

Conviction

Sentence

1.

Section 307 of IPC

RI for 5 years with fine of Rs.500/- and in default of fine amount, additional imprisonment for 2 months

2.

Section 25 of the Arms Act

Imprisonment for 3 years with fine of Rs.200/- and in default of fine amount, additional imprisonment for 1 month

3.

Section 27 of the Arms Act

Imprisonment for 3 years with fine of Rs.200/- and in default of fine amount, additional imprisonment for 1 month

Brief facts of the case are that on 17.08.1996, when the complainant Udaybhan was sitting in his betel stall at 7 pm, at that time the appellant came with two other persons to get betel. The complainant supplied betel to them and thereafter the appellant fired a gun shot from a pistol on the complainant over a dispute relating to rent of the premises between them. The bullet crossed his chest and went out of his body, as a result of which he was injured severely having blood stained. Thereafter, he was admitted in hospital and FIR was lodged. After completion of investigation, charge sheet was filed against the accused. The charges were framed under Section 307 of IPC and Sections 25 & 27 of the Arms Act against the appellant.

In order to prove the guilt of the accused/appellant, the prosecution examined as many as 15 witnesses. Statement of the accused/appellant was also recorded under Section 313 of CrPC, in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication. The accused/appellant examined one witness in his defence and filed two documents (Ex-D/1 & D/2) in his defence.

The learned Trial Court after appreciating the oral and documentary evidence available on record convicted the appellant, as mentioned in para 1 of this judgment. Hence, this appeal has been preferred by the appellant.

During pendency of this appeal, the complainant filed an application under Section 320 (2) of CrPC for compromise on the ground that the dispute between him and the applicant has already been resolved amicably. Their statement was recorded. In their statements, the appellant and the complainant submitted that the dispute between the parties has already been settled amicably through compromise and on the basis of it, they want to compound the offence.

Learned counsel for the complainant submits that the applicant and the complainant are the residents of the same village and locality and dispute arose between them relates to rent of the premises, but with the passage of time, the parties have amicably settled their dispute outside the court and presently are residing peacefully without any enmity. Therefore, the application under Section 320 (2) of CrPC may kindly be allowed and the offence be compounded.

Learned counsel for the appellant submits that since the matter has been compromised between the parties and the complainant has no objection if the appellant is acquitted by this Court of the charges levelled against him, the appeal be allowed and the appellant be acquitted of the charges levelled against him. Even otherwise, the complainant himself has admitted in his cross-examination that he did not identify those persons as to who fired gun shot on him at the time of incident.

On the other hand, learned State counsel opposes the prayer made by the counsel for the appellant and submits that all the offences are not compoundable and conviction of the appellant is based on proper appreciation of oral and documentary evidence available on record, as such the application of the compromise is liable to be dismissed and accordingly the appeal be also dismissed.

Heard learned counsel for the parties and perused the material available on record.

The learned Trial Court based on the material available on record convicted the appellant under Section 307 of IPC and Sections 25 & 27 of the Arms Act. The complainant Udaybhan (PW-1) stated in para 9 that “पहले जो दो लड़के आये थे और पान सिगरेट मांगा था उनको मै नही पहचानता यह सही है कि जब मै उन्हें पान देने के बाद सिगरेट दे रहा था उसी समय मेरे सीने में चोट लगी। चोट लगने के बाद दर्द के कारण मै बेहोस हो गया था। मुझे पत्थलगांव अस्पताल ले जाया गया था। गांव के लोग पत्थलगांव अस्पताल में चर्चा कर रहे थे कि किसने मारा है और मुझे पहली बार पत्थलगांव अस्पताल में पता लगा कि किसने मारा है। और उसके बाद उसी रात मुझे पत्थलगांव से रायगढ़ अस्पताल लाया गया था। रायगढ़ अस्पताल से जब मैं ठीक होकर लौटा उसके बाद पुलिस ने मेरा बयान लिया था”. Subsequently, the application under Section 320 (2) of CrPC was filed by the complainant himself for compounding of the offence, which is pending consideration.

In the matter of Gulab Das and others vs State of Madhya Pradesh (2011) 10 SCC 765, the Hon’ble Apex Court held in paras 8 to 13 as under:-

“8. In the light of the submissions made at the bar the only question that falls for determination is whether the prayer for composition of the offence under Section 307 IPC could be allowed having regard to the compromise arrived at between the parties. Our answer is in the negative.

This Court has in a long line of decisions ruled that offences which are not compoundable under Section 320 of the Cr.P.C. cannot be allowed to be compounded even if there is any settlement between the complainant on the one hand and the accused on the other. Reference in this regard may be made to the decisions of this Court in Ram Lal and Anr. v. State of J & K (1999) 2 SCC 213, and Ishwar Singh v. State of Madhya Pradesh (2008) 15 SCC 667. We have, therefore, no hesitation in rejecting the prayer for permission to compound the offence for which Appellant Nos. 2 and 3 stand convicted.

Having said that we are of the view 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. That is precisely the approach which this Court has adopted in the cases referred to above. Even when the prayer for composition has been declined this Court has in the two cases mentioned above taken the fact of settlement between the parties into consideration while dealing with the question of sentence. Apart from the fact that a settlement has taken place between the parties, there are few other circumstances that persuade us to interfere on the question of sentence awarded to the appellants.

The incident in question had taken place in the year 1994. The parties are related to each other. Both Appellant nos.2 and 3 were at the time of the incident in their twenties. It is also noteworthy that the incident had led to registration of a cross case against the complainant party in which the trial Court has already convicted Veeraji and others for offences punishable under Sections 325/34 and 323 IPC and sentenced them to undergo imprisonment for a period of two years and a fine of Rs.300/- and imprisonment of six months under Section 323 IPC. We are told that the parties having settled the matter, will approach the High Court for an appropriate order in the appeal pending before it. More so, the appellants have already served substantial part of the sentence awarded to them.

In the totality of the circumstances we are of the view that the settlement arrived at between the parties is a sensible step that will benefit the parties, give quietus to the controversy and rehabilitate and normalise the relationship between them.

In the result, while upholding the order of conviction recorded by the Courts below, we reduce the sentence awarded to the appellants to the sentence already undergone by them. The appeal is to that extent allowed and the impugned orders modified. The appellants shall be set free forthwith if not otherwise required in any other case.”

Applying the aforesaid principle in the present case as well, it is clear that in the case in hand also, the application under Section 320 (2) of CrPC has been filed for compounding the offence, but since the offences are not compoundable, the application cannot be allowed, even if there is any settlement arrived at between the complainant and the appellant, as held by the Hon’ble Apex Court in Gulab Das (supra). However, while dealing with the question of sentence, the settlement arrived at between the parties can be taken into consideration. In the present case, the incident took place in the year 1996 and this appeal is pending since 2001. The appellant has remained in jail for about 5 months. Thus, considering the above said aspects of the matter, this Court is of the view that the ends of justice would be suitably met if while maintaining the conviction and sentence against the appellant, the sentence of the imprisonment awarded to the appellant is reduced to the period already undergone by him. Accordingly, the order of sentence is modified and the sentence awarded to the appellant is reduced to the period already undergone by him.

The appeal is allowed to the extent indicated herein-above and the order of sentence is modified. The accused/appellant is on bail. His bail bonds shall stand discharged.