IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2019 BEFORE THE HON' BLE MR.JUSTICE R DEVDAS CRIMINAL APPEAL NO.18 OF 2018 BETWEEN 1. J.C.B. SIDDIQ SON OF LATE HUSSAIN MUSLIYAR AGED ABOUT 34 YEARS RESIDING AT KURUVELU HOUSE BILIYURU VILLAGE BANTWAL TALUK-574219 2. SULAIMAN SON OF ISUBU AGED ABOUT 31 YEARS RESIDING AT KURUVELU HOUSE NEKKILADY VILLAGE PUTTUR TALUK 574 201 3. SIRAJ SON OF ISUBU AGED ABOUT 29 YEARS RESIDING AT KURUVELU HOUSE NEKKILADY VILLAGE PUTTUR VILLAGE-574 201 4. ABDUL GAFOOR SON OF ISUBU AGED ABOUT 34 YEARS RESIDING AT KURUVELU HOUSE NEKKILADY VILLAGE PUTTUR TALUK-574 201 5. HAREES SON OF ISUBU AGED ABOUT 32 YEARS RESIDING AT KURUVELU HOUSE NEKKILADY VILLAGE PUTTUR TALUK-574 201 6. ABDUL SATHAR SON OF ABDUL RAHIMAN AGED ABOUT 29 YEARS RESIDING AT KURUVELU HOUSE BILIYUR VILLAGE BANTWAL TALUK-574 209 7. B.T. FAROOQ SON OF HUSSAIN MUSLIYAR AGED ABOUT 31 YEARS RESIDING AT KURUVELU HOUSE BILIYUR VILLAGE BANTWAL TALUK-574 219 (BY SRI ARUN SHYAM M, ADVOCATE) AND 1. STATE BY UPPINANGADY POLICE STATION REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560 001 2. ABDUL HAKIM SON OF LATE MAHAMMAD AGED ABOUT 26 YEARS RESIDING AT KURUVELU HOUSE. BILIYUR VILLAGE BANTWAL TALUK-574 219 ... APPELLANTS ... RESPONDENTS (BY SRI MAHESH SHETTY, HCGP FOR R1, SRI NARASIHIMA PRASAD, ADVOCATE FOR R2) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT DATED 8.12.2017 AND SENTENCE DATED 12.12.2017 PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, D K, MANGALURU IN SC NO.22/2016 CONVICTING THE APPELLANT/ACCUSED NO.1 TO 7 FOR THE OFFENCE P/U/S 143, 147, 148, 341, 504, 326 AND 307 READ WITH SECTION 149 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT R.DEVDAS J., (ORAL):
The appellants-accused Nos.1 to 7 have preferred this appeal under Section 374(2) of the Code of Criminal Procedure assailing the judgment dated 08.12.2017 and sentence dated 11.12.2017 passed in S.C.No.22/2016 whereby the appellants were convicted for the offences punishable under Sections 143, 147, 148, 341, 504, 326, 307 r/w 149 of Indian Penal Code.
2. At the outset, the learned counsel for the appellants has filed a memorandum of settlement or compromise petition under Section 320 r/w Section 482 of Cr.P.C. dated 02.12.2019.
The memorandum of compromise has been signed by all the appellants and respondent No.2–the original complainant. The learned counsel therefore submits that in view of the compromise entered into between the parties, this Court may consider permitting the second respondent-complainant to compound the offences. It is however submitted that one of the offence i.e. section 307 is non-compoundable. The learned counsel would place reliance on judgments of the Hon’ble Apex Court in the case of Manjit Singh v. State of Punjab and Another reported in 2019 SCC OnLine SC 896 and the decision of the Co-ordinate Bench in the case of H.B.Sathisha and another vs. The State of Karnataka in Criminal Appeal No.247/2007 which was disposed on 22.08.2012.
3. The learned counsel, while taking this court through the case of Manjith singh submitted that in that case too the appellants therein were convicted for the offence of 307 of I.P.C. which was non-compoundable. It was pointed out that the Hon’ble Apex Court took notice of the compromise entered into between the parties and sentence undergone by the appellants-
accused and reduced the punishment from five years of imprisonment already undergone by the appellants-accused. The learned counsel however, pointed out from the case of H.B. Sathisha that it was also permissible for this Court to scale down the conviction from Section 307 of I.P.C. to Section 325 of I.P.C, having regard to the facts and circumstances of the case and in the light of the compromise arrived at by the parties.
4. The learned counsel for respondent No.2- complainant would support the contention of the learned counsel for the appellants.
5. The learned H.C.G.P., on the other hand would submit that since Section 307 of I.P.C. is non-compoundable, the compromise petition may be rejected.
6. Having heard the learned counsel for the appellants and respondents, this Court is required to consider the submissions of the learned counsel for the appellants and the memorandum of compromise entered into between the parties, having regard to the findings given by the Trial Court and thereafter the reasons assigned by the Trial Court with regard to the guilt insofar as Section 307 of I.P.C. is concerned. In that regard this Court has gone through the impugned order and finds that it is an undisputed fact that second respondent – complainant had come out of the Masjid along with another person and while walking, it is alleged that the appellants- accused persons attacked the two persons with weapons. As rightly submitted by the learned counsel for the appellants, if the intention of the appellants-accused persons were to kill the two persons then easily they have committed the act of murder. The very fact that the accused-persons assaulted respondent No.2 and his companion and went away shows that there was no intention to kill. The other important aspect is that respondent No.2-complainant has himself come forward to settle the matter and has executed the memorandum of compromise.
7. It is also relevant to note that in a subsequent event respondent No.2 and other persons had attacked some of the appellants herein and the case in Crime No.89/2014 was registered against respondent No.2 and other persons. It is relevant to note that in Crl.P.No.5403/2018, the complainants who included some of the appellants herein entered into a compromise and this Court by order dated 23.07.2018 recorded the compromise and while allowing the Criminal petition, quashed the entire proceedings in Crime No.89/2014 and all further proceedings in S.C.No.5007/2018. What is noticeable is that even in that case Sections 307 and 326 were charged.
8. The appellants-accused Nos.1 to 7 and respondent No.2 who have executed the memorandum of compromise are present before this Court. In the light of the above, this Court deems it fit to reduce the offence under Section 307 of I.P.C. to Section 325 of I.P.C. since the material on record would indicate that there was no intention to commit murder. This Court is satisfied that the offences and the overacts of the appellants would fall within the mischief of Section 325 of I.P.C., and accordingly their conviction for offence punishable under Section 307 of I.P.C. is hereby set aside. Conviction of the appellants for offence punishable under Section 341 of I.P.C. is also not/un-
supported by any evidence. Hence their conviction for the said offence is also set aside.
As a result, the application filed under Section 320 of Cr.P.C. is accepted. The application is allowed. The second respondent-complainant is permitted to compound the offence punishable under Sections 143, 147, 148, 504, 326 r/w 149 of Indian Penal Code.
In view of compounding of offence, it shall have the effect of acquittal of all the appellants-accused permissible under sub Section (8) of Section 320 of Cr.P.C. The appeal is disposed of in terms of this order.
The Trial Court had imposed fine and directed the appellants-accused to deposit a sum of Rs.15,000/-each and the said amount was deposited during the time of suspension of sentence order passed by this Court. This Court is of the considered opinion that while directing Rs.2,000/- each which was deposited by the appellants-accused shall be defrayed towards the cost of the State and the remaining amount shall be refunded to the appellants-accused Nos.1 to 7. It is ordered accordingly.
The parties i.e. appellants-accused Nos.1 to 7 and respondent No.2 shall sign the order sheet and the learned counsels shall identify the same.
SD/-
Judge HR