High Court set aside criminal appeals regarding convictions for offences including affray and mischief. The court found the prosecution failed to identify specific accused persons responsible for the mob attack and noted the incident had been compromised.
Judgment of conviction by Additional Sessions Judge was set aside and pending applications were disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 468 of 2007 & Cr. Appeal No. 474 of 2007 Reserved on: 12.06.2017 Decided on: 19.06.2017
__________________________________________________________ Cr. Appeal No. 468 of 2007 Abdul Sattar & others …..Appellants Versus State of H.P. ……Respondent Cr. Appeal No. 474 of 2007 Anver & others …..Appellants Versus State of H.P. ……Respondent ___________________________________________________ Coram_ The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? No.
____________________________________________________ For the appellants : Mr. Bimal Gupta, Sr. Advocate with Mr. Vineet Vashishta, Advocate, in Cr. Appeal No. 468 of 2007. Ms. Sheetal Vyas, Advocate, vice Mr. Anoop Chitkara, Advocate, in Cr. Appeal No. 474 of 2007. For the respondent : Mr. Virender K. Verma, Addl. AG with Mr. Pushpinder Jaswal, Dy. AG and Mr. Rajat Chauhan, Law Officer, for the respondent in both the appeals.
Chander Bhusan Barowalia, Judge.
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Both the criminal appeals are arising out of the
same judgment and common questions of law and facts are involved in the same, hence, both these appeals were taken up together for hearing and are being disposed of by this common judgment.
dated 30.11.2007, passed by learned Additional Sessions Judge (FTC) Shimla, in Sessions trial No. 2-S/7 of 2007/05, whereby the accused persons were held guilty for the commission of offences punishable under Sections 147, 452/149, 342/149, 323/149 and 427/149 IPC, with a prayer to set aside the same.
entered into his shop and started beating him by giving kicks and fist blows. The mob of people was instigated by S/Sh Anwar, Dilsad and Nasir etc. and they were saying ‘Maro Maro’, they also forcibly put the face of the complainant into a bag of flour and after intervention of S/Sh. Nirmal, Lal Mohar Sahu and Arvind etc, the complainant was saved from the paws of the miscreants. The assailants have also damaged the articles lying inside the shop and when he tried to ring up the Police, the accused persons wrongly confined him to his shop and while leaving the shop, they proclaimed that he should leave the shop and go back to his state, Bihar. However, later on his wife managed to inform the Police on telephone. On the basis of complainant’s statement, FIR No. 315/04, Ext. PW-7/A was registered against the accused persons. During further investigation, complainant was got medically examined and MLC, Ext. PW-6/B was obtained, wherein two simple injuries caused by a blunt weapon were detected on the person of the complainant. Site plan of the spot was prepared and photographs of the site of the crime were got clicked. Statements of the witnesses under Section
161 Cr.P.C. were recorded and after completion of investigation challan was presented before the Court.
as many as 8 witnesses. Statements of accused persons were recorded under Section 313 Cr.P.C, wherein they denied the prosecution case and claimed innocence. Accused persons did not lead any defence evidence. The learned trial Court, vide impugned judgment dated 30.11.2007, convicted the accused persons for the commission of offences punishable under Sections 147, 452/129, 342/149, 323/149 and 427/149 IPC, hence the present appeal.
be dismissed.
Additional Advocate General and learned defence counsel, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses.
reported in M.D. BalalMian vs. State of Bihar, 2001(3) Crimes, 419 , which reads thus:
“2. Three persons were convicted among whom Mohammed NehalMian was convicted under Section 376 Indian Penal Code and the other two were convicted only under Sections 325 and 323 of the Indian Penal Code. As the High Court confirmed the conviction and sentence the three persons approached this Court for special leave. We found no scope for granting special leave in respect of the first petitioner Mohammed NehalMian and hence we dismissed the special leave petition as against his as per order dated 26.09.2000.
3. As the present appellants, Mr. BalalMian and Mohammed BasheerMian, were convicted only under offences which are compoundable, it is now submitted on behalf of the victim respondent No. 2 that the matter has been compounded between the appellants and herself. We accept the aforesaid submission made by the counsel on behalf of respondent No. 2. Both sides have sworn to affidavit for the said purpose. We accord permission for compounding the offences.”
Supreme Court in Surendra Nath Mohanty vs. State of Orissa,
1999(5) SCC, 238 have held as under:
“ For compounding of the offences punishable under the Indian Penal Code, complete scheme is provided under Section 320 of the Code of Criminal Procedure, 1973. Sub-Section (1) of Section 320 provides that the offences mentioned in the table provided thereunder can be compounded by the persons mentioned in column No. 3 of the said table. Further, sub-Section (2) provides that the offences mentioned in the table could be compounded by the victim with the permission of the Court. As against this, subSection (9) specifically provides that “no offence shall be compounded except as provided by the Section.” In view of the aforesaid legislative mandate, only the offences which are covered by table 1 or 2 as stated above can be compounded and the rest of the offences punishable under Indian Penal Code could not be compounded.
…However, considering the fact that parties have settled their dispute outside the Court and fact that the 10 years have elapsed from the date of the incident and the further fact that appellants have already undergone 3 months imprisonment as per the sentence imposed on them, we think that ends of justice would be met if the sentence of imprisonment is reduced to the period already undergone besides imposing a fine of Rs. 5,000/- on each of the accused under Section 326 read with Section 34 Indian Penal Code. We reduce the sentence as indicated above and direct that in default of payment of fine, the appellant concerned shall undergo simple imprisonment for a further period of three months. We also refrain from imposing any separate sentence on the other counts of offences. Out of the fine amount, if realized, a sum of Rs. 9,000/- also be paid to the injured as compensation.”
He has also feigned ignorance about the exact amount lying inside the case box. He denied that he has falsely
implicating the accused persons, as they have complained against him that he indulges in illegal sale etc. of Depot articles. He further stated that after the said occurrence, he regained his consciousness itself. He further stated that the accused persons shut the door of his shop by putting the wooden planks (phattas). He feigned ignorance as to by whom the phattas were opened.
runs a shop in Idgah Colony and his shop is about 10 steps away from the shop of the complainant. He further deposed that on the alleged day, he was present in his shop and on hearing noise from the shop of the complainant, he rushed to call his wife. He feigned ignorance, as to who were the members of the crowd. In his cross-examination, he denied that he saw the accused persons inside the shop of the complainant, however he admitted that he simply saw the crowd. He admitted that he know accused as they live in his Mohalla. He feigned ignorance about the fact that the accused persons given beatings to the complainant. He stated that he has not seen any injury on the person of the complainant.
investigated the case and stated that on the alleged day, he received a telephonic information regarding occurrence on the shop of Suresh Kumar in Idgah Colony. After the said information, he alongwith Constable Surinder Kumar went to the spot and found Suresh Kumar there in injured condition. He stated that the complainant made the statement Ext. PA before him and thereafter he made the endorsement, Ext. PW-8/A and sent it through Constable Surinder Kumar to the Police Station for registration of FIR. Thereafter, the application, Ext. PW-6/A, was written and injured was sent for medical examination to IGMC, Shimla and after the injured returned from the hospital, spot map, Ext. PW-8/B was prepared. The statements of the witnesses under Section 161 Cr.P.C were recorded and on the basis of supplementary statement made by the complainant, Section 395 IPC was added. He further stated that stolen articles could not be recovered, as it was not clear as to which particular accused has taken away the same. In his cross-examination, he deposed that when he reached the spot, no other person was inside the shop, however 3-4 persons were standing outside the shop and the cash box was lying on the floor.
they are residing at the same place, wants to live peacefully, do not want to pursue the case against each other.
Supreme Court and the discussion made hereinabove, the present appeals are allowed and the judgment of conviction passed by the learned Additional Sessions Judge, Fast Track Court, Shimla, is set aside.
(Chander Bhusan Barowalia) Judge
19th June, 2017
(raman)
2 issues framed by the court
Whether the judgment of conviction should be set aside in light of the compromise between the parties and insufficient evidence involving unidentified riots.
Whether incomplete prosecution evidence and disputee nature of the offence warranted acquittal in high court criminal appeal.
Abdul Sattar & others
Anver & others
State of H.P.
Chander Bhusan Barowalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Chander Bhusan Barowalia
Parties & counsel
