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CASE NO.: Appeal (crl.)  1302 of 2007

PETITIONER: KHURSHEED & ANR

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT: 28/09/2007

BENCH: C.K. THAKKER & ALTAMAS KABIR

JUDGMENT: J U D G M E N T  

CRIMINAL APPEAL NO. 1302 2007 ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 3799 OF 2006

C.K. THAKKER, J.

1.              Leave granted.

2.              This appeal is directed against judgment and  order passed by the High Court of Uttaranchal at Nainital  on March 24, 2006 in Criminal Revision No. 627 of 2001.  By the said order, the High Court dismissed the Revision  and confirmed the order of conviction and sentence  passed by the IInd Assistant Session Judge, Roorkee on  January 28, 1992 and confirmed by the District and  Session Judge, Haridwar on June 9, 1992. 3.              Brief facts leading to the present appeal are  that according to the prosecution, on May 7, 1989 at  about 8.00 a.m. in the morning, one Mahmood Hassan  was returning to his house after offering a prayer  (namaz). He met Zahoor, Khursheed, Naseem and Islam  who assaulted him. When Smt. Kulsoom @ Bhoori, wife  of Mahmood Hassan attempted to save her husband, she  was also assaulted. Injuries were sustained by both of  them. The incident was witnessed by Islam, Waseel  Ahmed and others. A First Information Report (FIR) was  lodged by Gufran Ali, son of Mahmood Hassan on the  same day at Jhabreda Police Station. The injured  Mahmood Hassan and his wife Smt. Kulsoom were  medically examined at Civil Hospital, Roorkee. The  Doctor opined that all the injuries were caused by hard  and blunt substance. After completion of police  investigation, charge sheet was submitted against the  accused persons and charge was framed for offences  punishable under Sections 325 and 323 read with  Section 34 of the Indian Penal Code (IPC). 4.              The trial Court, vide its judgment and order  dated January 28, 1992, convicted Khursheed and Islam  (Accused Nos. 2 and 4) for offences punishable under  Section 325 read with Section 34 IPC and sentenced each  of them to undergo rigorous imprisonment for one year  and to pay fine of Rs.500/- and also to undergo rigorous  imprisonment for six months for the offence punishable  under Section 323 read with Section 34 IPC. Both the  sentences were ordered to run concurrently. 5.              Feeling aggrieved by the order passed by the

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trial Court, the accused preferred an appeal in the  Sessions Court, Haridwar. The learned Sessions Judge  upheld the conviction of the accused but reduced  sentence from one year to six months for offence  punishable under Section 325 read with Section 34 IPC  with fine of Rs.500/- each and from six months to three  months for offence punishable under Section 323 read  with Section 34 IPC. The challenge to the said conviction  and sentence was unsuccessful and the High Court, as  stated above, confirmed the order of conviction and  sentence passed by the lower appellate Court. 6.              When the matter was placed before the learned  Chamber Judge of this Court, a statement was made that  the parties had settled the matter and since the offences  were compoundable, compromise could be recorded. A  Deed of Compromise was also placed on record. But,  since there was no affidavit filed in support thereof, the  learned Chamber Judge permitted the appellants to file  ’regular compromise petition’. The matter was, therefore,  adjourned. 7.              Again, the matter appeared on board on  August 4, 2006 when the following order was passed:                "A Memorandum of Compromise has  been filed before this Court which in effect, is a  prayer for compounding the offence.  The same  has been signed by the complainant as well as  by one of the injured witnesses, the other  having died.

           Issue notice to Gufran, the  complainant. On account of old age of the lady  namely Kulsoom, we do not require her  presence at this stage. The aforesaid Gufran  may appear in person or through his advocate.

Issue notice on the application for condonation  of delay also.

           In the meantime, the petitioners be  released on bail on their furnishing bail bonds  and sureties to the satisfaction of the Trial  Court, till further orders".

8.              We have heard learned counsel for the parties. 9.              It was stated that the matter has been  compromised between the parties, amicable settlement  has been arrived at and compounding may be allowed. It  was further submitted that both the offences for which  the appellants were convicted are compoundable. Section  320 of the Code of Criminal Procedure, 1973 (hereinafter  referred to as ’the Code’) deals with Compounding of  Offences. Sub-section (1) of Section 320 of the Code  reads thus: 320. Compounding of offences.\027(1) The  offences punishable under the sections of the  Indian Penal Code (45 of 1860) specified in the  first two columns of the Table next following  may be compounded by the persons mentioned  in the third column of that Table:--

Table \005              \005            \005.   \005

10.             An offence of causing hurt punishable  under Section 323 IPC falls under sub-section (1) of  Section 320 of the Code. It is compoundable at the

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instance of the person to whom the hurt is caused.  Permission of the Court is not necessary. Since the  parties have compounded, the act of compounding is in  accordance with law. 11.             Sub-section (2) of the said section provides  for compounding of offences with the permission of the  Court. It reads thus:      (2) The offences punishable under the  sections of the Indian Penal Code (45 of 1860)  specified in the first two columns of the table  next following may, with the permission of the  Court before which any prosecution for such  offence is pending, be compounded by the  persons mentioned in the third column of that  table:--

Table \005              \005    \005    \005    \005    \005

12.             An offence of causing grievous hurt  punishable under Section 325 IPC is covered by sub- section (2) of Section 320 of the Code. It is thus clear that  an offence punishable under Section 325 IPC is also  compounded with the permission of the Court.   13.             The parties have compounded the offences.  As stated in the compromise deed, Gurfan Ahmad,  complainant and his mother Kulsoom @ Bhoori (injured)  did not want any action against the appellants (accused).  The parties are neighbours, their houses are situated  adjacent to each other and they have been living  peacefully for last many years and there is no dispute  among them. It is further stated that to continue sweet  relationship and harmony, complainant side does not  want to take any action against the accused. A prayer is,  therefore, made to accept the compromise. 14.             On the facts and in the circumstances of  the case, and considering the Deed of Compromise and  having heard learned counsel for the parties, in our  opinion, ends of justice would be met if we grant  necessary permission for compounding an offence  punishable under Section 325 read with Section 34 IPC  as required by sub-section (2) of Section 320 of the Code.  The offence punishable under Section 323 IPC has  already been compounded by the parties. 15.             Sub-section (8) of Section 320 states that  the composition of offence under the section shall have  an effect of acquittal of the accused with whom the  offence has been compounded. The resultant effect of  compounding of offences would be that the accused  should be acquitted. In other words, once the offences  have been compounded and the requisite permission is  granted by the Court, the accused must be acquitted. 16.             For the foregoing reasons, the appeal  deserves to be allowed and is accordingly allowed.  Compounding of offence is permitted and the appellants  are ordered to be acquitted.