- (1.) UMESHWAR Pandey, J. This Criminal Revision under Section 397/401 of the Code of Criminal Procedure is directed against the judgment and order dated 23-1-1985 passed by the Addl. Sessions Judge, Saharanpur in Criminal Appeal No. 280 of 1984 preferred by the revisionists accused against the judgment and order of conviction and sentence recorded against them by the trial Magistrate.
(2.) THE revisionists accused were tried for the offences punishable under Sections 452, 324, 323/34 and 506 of Indian Penal Code. THE trial Magistrate before whom the case was concluded, after having considered the entire evidence on record was of the view that the offences aforesaid with which the accused were charged, had been fully established against them and accordingly he recorded a judgment of conviction against them and sentenced them to different periods of rigorous imprisonment and payment of fine for the said offences. Aggrieved against that judgment and order of conviction and sentence, an appeal was preferred before the learned Sessions Judge which was later on transferred to the Court of III Addl. Sessions Judge. While the matter was pending in appeal, the parties filed compromise with the permission of the Court under Section 320 of the Criminal Procedure Code, for the offences punishable under Sections 323 and 324 IPC. THE compromise was verified. THE other offences punishable under Sections 452 and 506 IPC were, since not compoundable could not be compounded. THE learned appellate Court having due regard to the compromise filed in the case and after appreciation of the material available on the record and upon hearing the parties, was of the view that the offence punishable under Section 506 IPC was not fully established and the evidence led from the side of prosecution for the said offence was wholly vague. Accordingly an order of acquittal was recorded for the said offence along with the offences (under Sections 323/34 and 324 IPC) for which the parties had already filed and verified compromise. THE learned appellate Court, however, maintained the order of conviction for the offence punishable 452 IPC, but it modified but the sentence awarded by the trial Court and directed the appellants' confinement till rising of the Court and passed the impugned judgment dated 23-1-1985. Aggrieved with the aforesaid judgment of the appellate Judge , which maintained the conviction of the revisionists-accused for the offence punishable under Section 452 IPC, the present revision has been preferred. I have heard the learned Counsel for the revisionists and also the learned AGA.
(3.) THE learned Counsel for the accused-revisionists while not placing any argument on the merits of the case for the maintenance of the order of conviction against the accused persons for the offence punishable under Section 452 IPC by the lower appellate Court, has made a simple and straight submission that the revisionists in all propriety should have been acquitted for the offence punishable under Section 452 IPC also. Relying upon the case of law of Barsati and others v. State of U. P. and another, reported in 2002 (1) U. P. Criminal Rulings 14 and Bhuwan Chandra Tiwari and others v. State of U. P. , 2002 (1) JIC 622 (Allahabad) (LB), it has been contended that in all legal propriety the lower appellate Court should not have maintained the order of conviction of the accused- revisionists for the offence punishable under Section 452 IPC as the parties for the two major offences, i. e. under Sections 324 and 323/34 IPC had already compromised. In the case of Barsati and others (supra) the accused persons were convicted and sentenced for the offences punishable under Sections 147, 323/149, 325/149 and 304 Part II of Indian Penal Code by the trial Court. In appeal before the High Court, the conviction recorded under Section 304 Part II of the IPC was set aside, but the conviction and sentences awarded for the other offences by the trial Court were confirmed. While the S. L. P. was pending before the Supreme Court, the parties, i. e. the assailants and the victims both entered into compromise and joint application was made by them. It was stated that they were closely related to each other and in case the order of conviction is maintained, they were likely to be put into serious difficulties. The accused and the injured, thus, requested the Supreme Court to condone the offences stated to have been committed by the appellants. It was under these circumstances and upon such facts available in the case, the apex Court found that notwithstanding the provisions of Section 320 IPC the appeal of the accused should be allowed on the basis of the statement made in the joint application filed by the parties. Accordingly, the order of conviction for the non- compoundable offence punishable under Section 147 IPC was also set aside. The other offences punishable under Sections 323/149 and 325/149 IPC were, however, compoundable under law.;