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2008 Supreme(UK) 250
2008 N.C.C. 947
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice J.C.S. Rawat
Criminal Appeal No.4 of 2002
With Criminal Appeal No. 11 of 2002
BALDEV ALIAS BALLA – Appellant
Versus
STATE OF UTTARAKHAND – Respondent
Decided on : 18.06.2008
In Criminal Appeal No. 4 of 2002
For the Appellant : Mr. Lokendra Dobhal, Adv. with Mr. D.C.S. Rawat, Adv.
For the Complainant :Mr. Pramod Belwal, Advocate
For the Respondent:Mr. Amit Bhatt, Additional Government Advocate
In Criminal Appeal No. 11 of 2002
For the Appellant :Mr. H.C. Pandey, Advocate
For the Complainant :Mr. Pramod Belwal, Advocate
For the Respondent:Mr. Amit Bhatt, Additional Government Advocate
Headnote:Criminal Procedure Code, 1973, Sec. 320 — Compromise recorded for non-compoundable offences — Accused convicted and sentenced to under go R.I. for 7 years and fine of Rs. 5,000/- u/s 307 read with 34, I.P.C. — Injury report not prepared, which could ascertain the actual nature of the injuries sustained by the victim — During trial and after conviction, Accused-1 had already remained in jail for about 9 months and Accused-2 had remained in jail for about 2½ months — Accused/Appellants filed compromise — Ten years had already elapsed from the date of the incident — Held that u/s 320, Cr.P.C. the appellants/accused could not get benefit of acquittal — On the ground of compromise — But effect of compromise could be taken into consideration while awarding sentence and that — Since, no injury report had been prepared by the doctors by which the actual nature of injuries could be ascertained and further, 10 years had already elapsed from the date of the incident and the parties had settled the matter outside the court and were living peacefully, if further punishment of imprisonment be imposed, bickering of parties would further reoccur — Relying upon catena of decisions of the Hon'ble Apex Court [reported in (1999) 5 SCC, 238; 2004 (9) SCALE, 679 (S.C.); (2006) 2 SCC (Cri), 561 and (2008) 1 SCC (Cri), 161] the sentence, reduced to the period already undergone, with fine of Rs. 5,000/- to each of the accused. (Paras 2, 8, 9, 10, 11)
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Since both the above appeals have arisen out of the common judgment and order dated 24.12.2001, passed by learned Additional District & Sessions Judge/III F.T.C., Dehradun in S.T. No. 148 of 1998, therefore, both the appeals are being disposed of together by this common judgment. These appeals have been preferred against the aforesaid impugned judgment and order whereby the appellants Baldev @ Balla and Damber Bahadur have been convicted & sentenced to undergo rigorous imprisonment for seven years and a fine of 5,000/- u/s r/w 34 I.P.C. In default of payment of fine, the appellants shall further undergo R.I. for six months.
2. Brief facts of the prosecution case are that on 02.06.1998 at about 11:00 p.m. in the night, the appellant Damber Bahadur called the injured Raju Thapa S/o Dharamraj from his house. The appellant Baldev was standing outside his house. They took away Raju Thapa with them. When they reached near the Khokha of Mast Ram, they started beating Raju Thapa. The parents of the injured Raju Thapa also followed him. The appellant Baldev @ Balla struck on the head of the injured by the butt of the country made pistol whereas the appellant Damber Bahadur caught hold the injured. The appellant Baldev @ Balla shot upon the injured due to which he sustained the injuries on outer side of his chest. The incident was witnessed by the parents of the injured and other witnesses. Though in the evidence, it is stated that no other person was present at the spot except parents of the injured. Thereeafter, the injured Raju Thapa was taken to Vikas Nagar Hospital from where he was referred to Doon Hospital where he remained admitted for nine days for his treatment. No injury report was prepared by any of the Medical Officers for the treatment of the injured. Tara Devi, mother of the injured submitted the report to the police station Dakpathar on 03.06.1998 at about 4:00 p.m. about the incident after admission and treatment of her son injured Raju Thapa in Doon Hospital.
3. After submission of chargesheet, the accused were committed to the court of Sessions for trial and the trial court framed charge u/s 307 r/w 34 I.P.C. against the accused/appellants. The accused denied the charge levelled against them and claimed their trial.
4. The prosecution in support of its case examined as many as nine witnesses. Raju Thapa PW1 is the injured witness who has sustained the injuries in the incident. Smt. Tara Devi PW2 and Dharamraj PW5 are the parents of the injured Raju Thapa and they are the eyewitnesses of the incident. Dr. K.S. Chauhan PW3 is the Medical Officer who has stated that the injured Raju Thapa was given first aid in the hospital. Kripal Singh PW4 is the constable who has arrested the accused/appellant on 03.06.1998. Dr. P.K. Nautiyal PW7 is the Medical Officer who has examined the injured. Dr. Radhey Shyam Gupta PW8 is the Medical Officer who has stated that the injured Raju Thapa was admitted in the Doon Hospital. S.I. B.D. Patiya PW9 is the Investigating Officer of this case and he has filed the chargesheet Ex.Ka. 9 against the accused/appellants.
5. The accused-appellants were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have further stated that the police have implicated them falsely in this case.
6. The learned Addl. Sessions Judge, after appreciation of the evidence and hearing the parties convicted the appellants and sentenced them as indicated above. Whereas the accused Babu Ram was acquitted from the charge leveled against him.
7. I have heard Mr. Lokendra Dobhal, Advocate with Mr. D.C.S. Rawat, Advocate for the appellant-Baldev @ Balla; Mr. H.C. Pandey, Advocate for the appellant – Damber Bahadur; Mr. Amit Bhatt, learned Addl. G.A. for the respondent/State; and Mr. Pramod Belwal, Advocate for the complainant.
8. Learned counsel for the appellants did not dispute the legality and propriety of the conviction passed by the learned trial court. They have only challenged the sen
