Rajasthan High Court - Jodhpur
Kalu Ram & Anr vs State on 30 January, 2018
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Application Criminal No. 63 / 2018
1. Kalu Ram S/o Soma Ram, by caste Meghwal,
2. Lakma Ram S/o Soma Ram,
by caste Meghwal, residents of Veerwada, Tehsil Pindwara,
District Sirohi.
(at present lodged in Sub-Jail at Abu Road)
----Petitioner
Versus
The State of Rajasthan.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. Farzand Ali
For Respondent(s) : Mr. O.P. Rathi, Public Prosecutor
For Comlplainant(s): Mr. Bhagat Dadhich
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Reportable Order
30/01/2018
Accused-petitioners have preferred this revision petition, under Section 397/401 Cr.P.C., to assail judgment dated 3 rd of February 2016, passed by Addl. Sessions Judge No.2, Abu Road, District Sirohi (for short, 'appellate Court'), affirming verdict dated 7th of June 2014, rendered by Judicial Magistrate, First Class, Pindwara, Sirohi (for short, 'learned trial Court'). Learned trial Court, by its verdict dated 7th of June 2014, convicted first petitioner Kalu Ram for offence under Section 458 IPC and handed down sentence of three years' simple imprisonment with fine of Rs.2,000, and in default of payment of fine to undergo three months' simple imprisonment. The first petitioner is also convicted for offence under Section 324 IPC and sentenced to two years' (2 of 13) [APPLR-63/2018] simple imprisonment. Likewise, the second petitioner, Likma Ram, is indicted for offence under Section 458 IPC and awarded sentence of three years' simple imprisonment with fine of Rs.2,000 and in default of payment of fine to undergo three months' simple imprisonment. The learned trial Court ordered all the sentences to run concurrently. The efforts of the petitioners made before appellate Court to challenge their conviction also foiled and the appellate Court by its judgment dated 3 rd of February 2016 affirmed the verdict of learned trial Court.
2. The facts, in brief, giving rise to this revision petition are that on 26th of March 2005, complainants Chhoga Ram, his wife Ms. Laxmi and son Bhanwarlal submitted a written report (Ex.P/1) before Police Station Pindwara, inter-alia, alleging therein that on that day at about 9 PM when his son Bhanwarlal was sleeping in the courtyard of house and he was putting bandage to his ailing wife, both the petitioners barged into courtyard of his house well armed with knives. The report further unfurled that both the petitioners stabbed Bhanwarlal son of complainant Chhoga Ram, and upon intervention by him and his wife, they were also given beatings. In the report, specific allegation was against petitioner Kalu Ram for causing stab injury to Bhanwarlal on his left shoulder. As per version of the complainant, he made alarm but nobody came to their rescue and finally he conveyed the entire incident to police on phone. The report then culminated into FIR No.83/2005 (Ex.P/5) and accused-petitioners were charged for offence under Sections 458, 323, 324/34. Police after (3 of 13) [APPLR-63/2018] investigation submitted charge-sheet against the petitioners for offence under Sections 458, 324, 323/34 IPC before learned trial Court. The learned trial Court framed charges against both of them and on their denial they were put on trial.
3. The prosecution, for substantiating the allegations against petitioners, examined seven witnesses and also exhibited requisite documents. After conclusion of evidence of the prosecution, statements of accused-petitioners were recorded under Section 313 Cr.P.C. and police statements of Chhoga Ram, Bhanwarlal and Lakma Ram S/o Jethaji were exhibited as Exs.D/1 to D/3 respectively.
4. The learned trial Court, thereafter, heard final arguments and by its judgment dated 7th of June 2014 convicted both the petitioners for offence under Sections 458 and 324 IPC and convicted Kalu Ram for offence under Section 458 and 324 IPC handing down aforementioned sentences whereas petitioner No.2 was convicted for offence under Section 458 IPC and was handed down sentence. The learned trial Court, acquitted both the petitioners for offence under Section 323/34 IPC by giving benefit of doubt.
5. The appellate Court, upon examining the matter afresh, fully concurred with the findings and conclusions of the learned trial Court and dismissed the appeal.
(4 of 13) [APPLR-63/2018]
6. Learned counsel for the petitioners, Mr. Farzand Ali, has strenuously urged that both the Courts below have committed grave and serious error in appreciation of evidence. It is further submitted by learned counsel that acquittal of both the petitioners for offence under Section 323/34 IPC sufficiently demonstrates that occurrence of incident itself is doubtful. It is also argued by learned counsel that prosecution case is that the incident occurred in courtyard and the same cannot be construed as house within the meaning of Section 442 IPC so as to constitute offence under Section 458 IPC. Learned counsel further submits that medical evidence is also not clear and unequivocal to indicate stab injuries inasmuch as PW6 Dr. Govindram Daiya in his deposition has admitted that such injuries can also be self-inflicted. Alternatively, learned counsel has argued that, during pendency of this revision petition, petitioners and the complainants have sorted out their dispute and entered into compromise, which is duly verified by the Deputy Registrar (Judicial), therefore, it would be appropriate to upset the concurrent verdicts of both the Courts below in the interest of justice.
7. Learned counsel further submits that Section 324 IPC is compoundable and per se offence under Section 358 IPC is not made out, therefore, for doing substantial justice in the matter offence under Section 458 IPC may also be compounded/quashed by invoking inherent powers under Section 482 Cr.P.C. Elaborating his submissions in his behalf, learned counsel has also (5 of 13) [APPLR-63/2018] argued that the incident occurred almost 13 years back and petitioners as well as complainants are related to each other and residents of same village, who are keenly interested to live in peace, is yet another mitigating circumstance to absolve the petitioners from the stigma of conviction in the interest of justice by relying on the written compromise between the parties.
8. Per contra, learned Public Prosecutor has vehemently opposed the revision petition. It is submitted by learned Public Prosecutor that offence under Section 458 IPC is not compoundable and at the stage of revision after concurrent findings of guilt by two Courts below offence under Section 324 IPC cannot be compounded. Learned Public Prosecutor has also opposed quashing of conviction under Section 458 IPC in exercise of inherent jurisdiction.
9. Mr. Bhagat Dadhich, learned counsel for the complainants, has frankly conceded that the complainants have sorted out their dispute with accused-petitioners and now both the parties want to live in peace. Learned counsel further submits that both the parties not only belong to same community but are also related to each other and by efflux of time have given hatchet to their previous animosity. He, therefore, submits that the complainants are having no objection/grudge if the conviction recorded by learned trial Court and affirmed by appellate Court is reversed and upset by this Court.
(6 of 13) [APPLR-63/2018] I have heard learned counsel for the parties, perused impugned judgments and scanned the material available on record.
10. In the instant case, first petitioner Kalu Ram is convicted for offence under Section 458 and 324 IPC whereas second petitioner Lakma Ram is convicted for offence under Section 458 IPC. While it is true that offence under Section 324 IPC is compoundable with the permission of the Court but then before learned trial Court as well as appellate Court no endeavour was made by the rival parties to sort out their dispute for compounding the said offence. Be that as it may, during pendency of this revision petition, rival parties have entered into compromise, which is duly verified by Deputy Registrar (Judicial) on 16.12.2016. At that point of time, one of the complainants, Bhanwarlal, was not alive and therefore his widow Ms. Jasoda also signed the compromise deed. The said compromise is again verified by the Deputy Registrar (Judicial) on 16th of January 2017 in presence of complainants Chhogalal, Ms. Laxmi and Jasoda W/o Late Bhanwarlal. The compromise deed, in vernacular, reads as under:
AAA vkilh jkthukekAAA ge ¼1½ Nksxkjke iq= Jh eksrhjke th tkfr es?koky mez & 60 lky is"kk & etnqjh fuoklh ohjokMk rglhy fia.MokMk ftyk fljksgh ¼2½ Jherh y{eh nsoh iRuh Nksxkjke tkfr es?koky mez & 50 lky is"kk & x`g.kh fuoklh ohjokMk rglhy fia.Mokyk ftyk fljksgh ¼3½ e`rd LoxhZ; Hkaojyky iq= Nksxkjke tkfr es?koky fuoklh & ohjokMk dh /keZiRuh Jherh t"kksnk nsoh iRuh LoxhZ; Hkaojyky tkfr es?koky mez & 35 lky] is"kk & x`g.kh fuoklh ohjokMk rglhy fia.MokMk ftyk fljksgh ,oa e`rd LoxhZ; Hkaojyky ds ekrk&firk y{eh nsoh o Nksxkjke vki Jh dkyqjke iq= lksekth tkfr es?koky is"kk & ukSdjh fuoklh ohjokMk rglhy fia.MokMk ,oa ydekjke iq= lksekth (7 of 13) [APPLR-63/2018] tkfr es?koky] is"kk& ukSdjh fuoklh ohjokMk rglhy fia.MokMk ftyk fljksgh ¼jktLFkku½ ds i{k esa ;g jkthukek fy[k nsrs gS fd vki ds f[kykQ geus iqfyl Fkkuk fia.MokMk esa eqdnek ntZ djok;k Fkk ftlesa iqfyl Fkkuk fia.MokMk }kjk vki dkyqjke o ydekjke ds f[kykQ iqfyl Fkkuk fia.MokMk us /kkjk 458] 324] 323] 341 Hkk-n-l- esa Jheku U;kf;d eftLVªsV] fia.MokMk esa vkjksi i= is"k fd;k Fkk ftlesa Jheku U;kf;d eftLVªsV] fiaMokMk us vki dkyqjke o ydekjke dks mDr eqdnek la[;k 296@2005 esa ltk nh Fkh rFkk vki }kjk bl QSlys ds f[kykQ Jheku vij ftyk ,oa ls"ku U;k;ky;] vkcqjksM esa vihy is"k dh Fkh tks vihy Jheku vij ftyk ,oa ls"ku U;k;k/kh"k] vkcqjksM+ us [kkfjt dj nh gS rFkk Jheku U;kf;deftLVªsV] fia.MokMk ds }kjk fn;s x;s Qslys dks ;Fkko`r j[kk gSA ;g fd mDr izdj.k esa et:c LoxhZ; Hkaojyky Hkh Fkk ftldh e`R;q gks pqdh gS ,oa ge i{kdkjku Nksxkjke] y{eh nsoh ,oa t"kksnk nsoh e`rd Hkaojyky ds ekrk&firk o iRuh gS gekjk vkils Hkfo'; esa e/kqj lEcU/k cuk;s j[kus ds fy;s jkthukek gks x;k gS ,oa vki o ge ,d gh tkfr ds gksdj vkil esa fj"rsnkj gS vc gekjs o vkids chp dksbZ eu eqVko ugha gS vc geus viuh bPNk ls vkids i{k esa jkthukek fy[k dj ns jgs gSA ;g fd mDr jkthukek djus ds fiNs gekjs Åij fdlh izdkj dk ncko] Hk; ugha gS ,oa u gh fdlh izdkj dk dksbZ forh; ;k vkfFkZd ykHk gh geus izkIr fd;k gS] geus fcuk fdlh ncko o izfrQy ds ,d gh lekt ds gksus o Hkfo"; esa e/kqj lEcU/k cus jgs ,oa fdlh izdkj dk eu eqVko ugha jgus mDr jkthukek iw.kZ gks"k gokl esa fu'ikfnr fd;k gSA fygktk ;g jkthukek vkt jkst geus vius iw.kZ gks"k gokl esa fcuk fdlh u"ks irs ds fcuk fdlh ncko ds viuh iw.kZ rUnq:Lrh gkyr esa fuEu lk{khx.k ds le{k i<@lqu o lksp le>dj ukWu T;qfMf"k;y LVkEi :i;s 100@& uax ,d o ikbZ isij uax nks dqy uax rhu ij vius vius gLrk{kj dj fn;s gS tks lun jgs ,oa oDr t:jr dke vkosA bfr fnukad 12-2-2016-
11. As the compromise has been arrived at between rival parties to compound the offence, may be at the stage of consideration of this revision petition, but then, considering the fact that both the parties are residents of same village and related to each other, who wants to live in peace, I feel inclined to exercise powers under sub-sec.(6) of Section 320 Cr.P.C. for allowing the complainants to compound offence under Section 324 IPC.
12. Now switching on to the other offence, for which both the petitioners are indicted, suffice it to observe that said offence is (8 of 13) [APPLR-63/2018] not compoundable within the four corners of Section 320 Cr.P.C. inasmuch as same is not envisaged under sub-sec.(1) and sub- sec.(2) of Section 320 Cr.P.C. However, in the backdrop of peculiar facts and circumstances of the instant case, the prosecution evidence, which has come to the fore during trial, has created serious doubts for constituting offence under Section 458 IPC. Even if the prosecution evidence is scrutinized with precision, same is incongruous/hazy to per se constitute offence under Section 452 IPC. In this behalf, the medical evidence too is tentative and furthermore compounding of offence under Section 324 IPC has also rendered offence under Section 452 IPC all the more vulnerable. At this stage, it is also relevant that even Section 452 IPC is not compoundable within the four corners of Section 320 Cr.P.C. This sort of situation has prompted the Court to rely upon the factum of compromise between rival parties and other mitigating circumstances for exercising inherent jurisdiction of this Court enshrined under Section 482 Cr.P.C. Besides factum of compromise and burying hatchet to the acrimony, the rival parties have pledged in the compromise to live in peace as relatives and residents of the same locality. Apart from that, a very vital fact that incident is almost 13 years old, I feel inclined to invoke inherent powers in the backdrop of peculiar facts and circumstances of the instant case ex-debito justitiae, i.e., to do real and substantial justice for the administration of which alone the Courts exist.
13. My view is also fortified by a decision of Supreme Court in (9 of 13) [APPLR-63/2018] Gian Singh Vs. 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-a-vis non-compoundable offences mentioned in Section 320 Cr.P.C., in the wake of compromise arrived at between the parties, the Court observed:
"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 (10 of 13) [APPLR-63/2018] 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."
14. The Court further dilated on certain offences, which are not private in nature and have serious impact on society and issued a word of caution not to quash criminal proceedings, criminal (11 of 13) [APPLR-63/2018] complaints, or FIRs in such matters. 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, the Court 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 (12 of 13) [APPLR-63/2018] depend on its own facts and no hard-and-fast category can be prescribed."
15. 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.
16. At this juncture, the Court cannot eschew some of the facts of great significance. Undeniably, in the instant matter, FIR was lodged by complainants in the year 2005 to set the law enforcement agency into motion and the investigating agency after thorough investigation submitted charge-sheet against the accused-petitioners. Later on, the learned trial Court took all pains in completing the trial with indictment of both the accused- petitioners for aforesaid offences. The appellate Court has also examined the matter de novo and fully concurred with the findings and conclusions of learned trial Court and affirmed the judgment of conviction.
17. The settlement of dispute between rival parties having come to an offing during pendency of this revision petition, after a lapse of more than a decade, is obviously a cause of concern, which cannot be excused by expressing mere indignation for the conduct (13 of 13) [APPLR-63/2018] of rival parties. Therefore, considering the gestation period of almost 18 years, passed during trial, appeal and revision before this Court and indolence or dormancy of rival parties in sorting out their dispute, it would be just and appropriate to saddle the accused-petitioners with some pecuniary damages in the form of contribution to legal aid, which may be provided to an accused having no sufficient means to engage a lawyer or pleader for his defence.
18. Considering the facts and circumstances of the instant case, besides other circumstances noticed hereinabove, petitioners are directed to contribute a sum of Rs.50,000/- towards legal aid and both of them are directed to deposit the said amount with Rajasthan State Legal Services Authority within a period of fortnight from the date of receipt of this order.
19. The upshot of above discussion is that the instant revision petition is allowed and the impugned judgments of appellate Court and learned trial Court are set aside and the petitioners are acquitted of the offences under Section 458 and 324 IPC. In case requisite amount is not deposited within the stipulated period, as ordered by the Court, then the Rajasthan State Legal Services Authority shall be at liberty to move this Court for appropriate orders.
The petitioners are on bail, and therefore, they need not to surrender.
(P.K. LOHRA)J.