Amar Nath Shukla vs State Of Uttaranchal

1989 of the charge of having committed the offences

punishable under Sections 436 and 147 IPC. The trial court by

its judgment and order dated 29.7.1991 found the appellant

guilty of the offence punishable under Section 436 IPC and

acquitted him of the charge under Section 147 IPC. He was

sentenced to undergo rigorous imprisonment for three years

and to pay a fine of Rs. 500/-. On appeal, the High Court by

its impugned judgment and order dated 21.8.2008 in Criminal

Appeal No. 775 of 2001 (Old No. 1529/91) dismissed the

appeal preferred by the appellant.

3. The occurrence giving rise to the present appeal is said to

have occurred on 26.2.1989 at about 1.00 P.M. The case of

the prosecution, as deposed to by the complainant-Sita Ram

(PW-3) is that he was living along with his wife and children in

a hut near Nagla Shiv Temple, P.S. Lalkuan for the last three

years preceding the date of occurrence. It is alleged that the

appellant along with his brother-in-law and uncle came to the

place where the complainant was residing and started beating 3

him and thereafter set fire to the hut. On account of

commission of offence of mischief by fire the entire hut along

with the household articles were burnt and reduced into ashes.

The appellant along with other persons ran away from the

spot. It is the further case of the prosecution that Sitaram

reported the details of the incident vide Exhibit KA-1 on the

same day at about 16.00 P.M.. Based on Exhibit KA-I the Police

Station Lalkuan, District Nainital registered a case under

Sections 436 and 323 IPC against the appellant.

4. The police having completed the investigation, filed

charge sheet against the appellant. The prosecution in order

to establish its case against the appellant and another

altogether examined 5 witnesses (PW-1 to PW-5). The

statement under Section 313 Cr.P.C. of the appellant was

recorded in which he stated that due to prior enmity he has

been falsely implicated in the case.

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5. In this appeal, Shri M.N. Rao, learned senior counsel

appearing on behalf of the appellant did not challenge, nor

make any submission as regards the conviction of the

appellant under Section 436 IPC. His submission was confined

only to the sentence imposed upon the appellant by the courts

below.

6. It is brought to our notice that during the pendency of the

appeal in the High Court complainant - Sitaram died in the

year 2005. That because of initiation of criminal case against

the appellant there were some ill-feelings between the

appellant and the widow of the complainant - Malti Devi aged

61 years. In order to live in peace and tranquility the appellant

and Malti Devi entered into a compromise at the intervention of

local elders whereunder an amount of Rs. 1 lakh was given by

the appellant to the widow as a solatium. That ever since the

compromise, parties are living in peace and maintaining very

cordial relations with each other.

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7. The wife of deceased Sitaram filed Crl. M.P No. 12467 of

2009 to implead herself as party respondent in this appeal in

which the facts stated above are depicted for consideration of

this Court. The learned counsel submitted that in view of the

subsequent developments the sentence imposed upon the

appellant may be reduced to that of the sentence already

undergone. Be that as it may, we cannot compound the

offence on the basis of the said compromise inasmuch as the

offence punishable under Section 436 IPC is non-

compoundable nor we can direct the courts below to compound

the offence based on the compromise.

8. It is evident from the record that the appellant is a young

married man having small kids and he is the only earning

member of his family. The incident is of the year 1989. He was

in jail for a period of more than 7 months. Considering the

nature of allegations leveled against the appellant and

considering the period of sentence already undergone and the

subsequent developments referred to herein above, we are of

the considered opinion that interest of justice would be met by 6

maintaining the conviction of the appellant under Section 436

IPC and reducing the sentence to that of the period already

undergone by him. He shall be forthwith released unless

required in any other case.

9. The appeal is accordingly partly allowed.

..........................................J. ( R.V. Raveendran)

..........................................J. (B. Sudershan Reddy)

New Delhi;

August 11, 2009 7