Sunda Ram @APPELLANT@Hash State of Rajasthan & Ors.

The appellants have filed the present Criminal Appeal under Section 374(2) Cr.P.C. against the judgment dated 29.04.2009 passed by learned

Additional Sessions Judge (FT) Jalore Camp Bhinmal in Sessions Case No. 53/2007 (26/07) whereby the appellants have been convicted for offences

under Section 447, 326, 324, 323 read with 34 IPC and sentenced as under :-

Section 447 IPC - One month simple imprisonment Section 323/34 IPC â€" Six months R.I.

Section 324/34Â IPC- One year rigorous imprisonment

Section 326/34 IPC â€" Five years rigorous imprisonment and a fine of Rs.5000/- in default of payment of fine to undergo six months R.I.

Brief facts of the case are that the complainant Prakash Chandra lodged an FIRÂ on 10.03.2007 at around 5 PM at P.S. Chitalwana stating therein

that on that day, in the morning at around 9 am, when his brother Kishan lal was going to school, the accused appellants came armed with axe and

spade and started beating Kishan lal. On raising voice, the complainant Prakash Chandra, Babu and Jagdish came on the site and intervened.

On the aforesaid complaint, case was registered at Police station. The police after due investigation filed challan under Section 447, 323, 324, 307/34

IPC.

The trial Court framed charges against the accused appellants for offence under Section 447, 307, 307/34, 326, 326/34, 324, 324/34, 323, 323/34Â

IPC. The accused appellants denied the charges and claimed trial.

The prosecution in support of its case recorded statements of 13 witnesses and exhibited documents. The statement of accused respondent under

Section 313 Cr.P.C. was recorded. On the defence side, no witnesses were examined.

After hearing arguments of both the sides, the trial Court convicted and sentenced the accused appellants for offence under Section 447, 326/34,

324/34 and 323/34 IPC as mentioned earlier.

Counsel for the appellants so also counsel for the complainant party submitted that a compromise has been arrived at between the parties and they

have filed an application under Section 320 Cr.P.C. for taking the compromise on record. After filing of the application, the compromise arrived at

between the parties has been duly verified before the Dy. Registrar (Judl.), Rajasthan High Court on 24.11.2017. Since the offences under Section

447, 323 and 324 IPC are compoundable, the compromise arrived between the parties is hereby taken on record and the accused appellants are

acquitted for the offence under Section 323, 324, 447 IPC on the basis of aforesaid compromise.

So far as offence under Section 326 IPC is concerned, learned counsel for the appellants argued that the injuries sustained by the injured are neither

grievous injuries nor present on vital parts except one. The alleged injury which has been shown to be grievous has been alleged to be caused by axe

but there is no corresponding injury on the mouth of the injured, therefore, it cannot be said that this injury was caused by axe.

Per contra, learned Public Prosecutor vehemently opposed the prayer and submitted that no error has been committed by the learned trial court in

convicting the accused appellants for offence under Section 326 IPC.Â

Counsel for the complainant submitted that since compromise has been arrived at between the parties, the complainant party does not want to pursue

the present appeal and he has no objection if the appellants are acquitted of the charges levelled against them.

I have heard counsel for the appellants, learned Public Prosecutor as well as counsel for the complainant and gone through the entire record.

 Dr. S.P. Mathur (P.W.12) found that the injuries caused to Kishan lal could be caused by hard and blunt objects and since there is no injury on the

upper and lower lip, therefore, it cannot be said that the weapon used for assault was a sharp cutting weapon like axe.  Nature of the injuries is

the key basis by which nature of the weapon can be assessed. Since the alleged injury is neither found to be caused by a sharp cutting or a deadly

weapon in the present case so, the appellants cannot be convicted for offence punishable under section 326 of IPC and their offence shall come within

the purview of section 325 of IPC only. Learned Additional Sessions Judge (FT) Jalore has committed an error in convicting the appellants for offence

punishable under section 326 of IPC though, they could be convicted for offence punishable under section 325 of IPC.

On the basis of the aforesaid discussion, it is apparent that the appellants cannot be convicted for offence punishable under section 326 of IPC and

they are liable for offence punishable under section 325 of IPC, which is compoundable with the permission of Court. Since the appellants and

complainant party have arrived at compromise and the counsel for the complainant has no objection if the appellants are acquitted of the offences,

therefore, the appellants are liable to be acquitted for the offence under Section 325 IPC also on the basis of compromise.

Hon’ble Supreme Court in Gian Singh v. State of Punjab : (2012) 10 SCC 303], wherein while examining the relative scope of inherent power of

High Court under Section 482 Cr.P.C. vis-Ã -vis non-compoundable offences mentioned in Section 320 Cr.P.C., in the wake of compromise arrived at

between the parties, held as under :

 ""The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his

dispute with the victim of the crime but the crime in which he is allegedly involved is not compoundable under Section 320 of the Code.

 Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior

court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, ""nothing in this Code"" which

means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts

the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e. to prevent abuse of the process of any court or

otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on the High Court; it merely

safeguards existing inherent powers possessed by the High Court necessary to prevent abuse of the process of any court or to secure the ends of

justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an

aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision

of the Code.

 In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High

Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court, or (ii) to

secure the ends of justice, is a sine qua non.

 In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent

continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa

esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is

found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be

supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which

it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and

circumspection.

 It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is

neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise

and inflexible guidelines can also be provided.

 Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of

offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is

materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences,

power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the

other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the

material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or

dismissal of indictment.

The Hon’ble Apex Court while segregating heinous and serious offences of mental depravity, murder, rape, dacoity etc., or under the special

statutes like Prevention of Corruption Act, or offences committed by public servants while working in their capacity as public servants, held :

Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled

although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in

the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding

factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-

being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has

been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious

offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the

Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and

the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of

civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry,

etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably,

irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash

the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender

being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is

illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed.

The co-ordinate Bench of this Court in the case of Kalu Ram & Anr. Vs. State of Rajasthan reported in 2018(1) R.Cr.D (Raj.) considering the ratio

decidendi of jdugment in Gian Singh (supra) held as under :-

“Upon examining the ratio decidendi of judgment in Gian Singh (supra), in my considered opinion, on the strength of compromise arrived at

between the parties and their vow to live peacefully within the locality as relatives, I feel persuaded to upset both the impugned judgments so as to

quash conviction of petitioners for offence under Section 458 IPC. This sort of situation has obviously entailed acquittal of both the petitioners for

offence under Section 458 IPC.â€​

In view of aforesaid discussion, the appeal is allowed. The conviction and sentence passed against the accused appellants for offence under 326/34

IPC is quashed and set aside. The accused appellants are acquitted of the offences under Section 447, 323/34, 324/34 and 325/34 IPC on the basis of

compromise`.

Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants are directed to forthwith furnish personal bonds in the sum

of Rs.20,000/- and a surety bond in the like amount each, before the learned trial court, which shall be effective for a period of six months to the effect

that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear

before Hon’ble Supreme Court.