Criminal Appeal (SJ) No.17 of 1994 Against the judgement of conviction and order of sentence dated 15.01.1994 and 17.01.1994 passed by 6th Additional Sessions Judge, Chapra in Sessions Trial No.30 of 1992/114 of 1993. 1.SHAMSHUDDIN, 2. HASNAIN, 3.JABIR HUSSAIN, 4.ZAMIL AKHTAR, 5.MD. SAZAD, 6.MD. HASID & 7. SAUKAT ALI-----------------Appellants Versus STATE OF BIHAR----------------------Respondent For the appellants:-S/Sri Rajendra Prasad Sinha, Manojeshwar Pd. Sinha, Ratan Kumar Sinha and Madhukar Prasad, Advocates For the State:- Sri Ajay Mishra, A.P.P. For the Informant:-S/Sri Sumant Singh, Aaruni Singh, Advocates. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. Seven appellants have appealed against the judgement of conviction and order of sentence passed against them by the learned 6th Additional Sessions Judge, Chapra on 15.1.1994 and 17.1.1994 respectively in Sessions Trial No.30 of 1992/114 of 1993. By the impugned judgment the appellants Samsuddin, Jamil Akhtar and Md. Sazad were found guilty of committing offence under Section 307 of the IPC and whereas appellants Samsuddin and Md. Sazad were directed to suffer rigorous imprisonment for 2 seven years, Appellant no.4 Jamil Akhtar was sentenced to suffer rigorous imprisonment for ten years. As regards appellant Hasnain, Jabir Hussain, Md. Hasid and Saukat Ali they were found guilty of committing offences under Section 307/149 of the IPC and each of them was directed to suffer rigorous imprisonment for seven years. Appellants Samsuddin, Jamil Akhtar, Md. Sazad, Md. Hasid and Saukat Ali were also found guilty of committing offences under Section 148 IPC and each one of them was to suffer rigorous imprisonment for one year. Appellant Jabir Hussain was found guilty also of committing an offence under Sections 147 and 380 IPC also in addition to being convicted under Section 307/149 IPC and he was directed to suffer rigorous imprisonment for six months and two years under Sections 147 and 380 IPC respectively. As regards appellant Hasnain he was also convicted under Section 380 IPC and was directed to suffer rigorous imprisonment for two years. 2. The informant Matin Ahmad(P.W.11) had given his fardbeyan in the Rajendra Surgical Ward of P.M.C.H. on 25.6.1991 alleging that he along with his brothers Rijwan(P.W.7) 3 and Moin Ahmad(P.W.6) were talking together at his darwaja. The accused persons come there variously armed. It is stated that appellants Saukat Ali and Md. Hasid were armed with country made pistols and both of them ordered the remaining accused persons to kill them, upon which appellant Jabir Hussain caught hold of Moin Ahmad(P.W.6) and appellant Hasnain caught hold of the informant(P.W.11). Thereafter, appellant Jamil Akhtar gave a blow with chura on Moin Ahmad(P.W.6) on the left side of the neck which was up to the left ribcage and a wound was caused on that account. He gave another chura blow near umbilicus. On account of the above stabbing wounds P.W.6 started bleeding profusely and fell unconscious. Appellant Samsuddin dealt blows with the same weapon, i.e., chhura, upon P.W.11, the informant of the case on the right side of his neck, on his chin and right side of his abdomen and right hand as a result of which P.W.11 started bleeding profusely and fell down there. As regards Rijwan(P.W.7), it was stated that he was assaulted with chhura on his left ribcage and he also started bleeding from that wound. The occurrence was witnessed 4 by P.W.1 Majid Hussain and P.W.2 Md. Jafir who were already there from before. 3. The informant stated that he and other injured were picked up by their family members and the informant did not know as to how and to which place the injured were shifted but on regaining his consciousness on 25th of June, 1991 he made his statement before the police officer in Rajendra Surgical Ward, P.M.C.H., Patna. 4. The fardbeyan of informant P.W.11 has been marked Ext-2 on the basis of which the FIR of the case Ext-1 was drawn up by P.W.12. S.I. Harilal Yadav who, on 26.6.1991 was the officer-in-charge of Dariyapur station, took up the investigation of the case after instituting the FIR and went to inspect the place of occurrence. He, thereafter, recorded the statements of witnesses Majid Hussain(P.W.1) who pointed out the place where the occurrence had taken place. It was the sahan in front of the house of P.W.11 Matin Ahmad(informant). He recorded the statements of different witnesses and also went to P.M.C.H. where he found the injured witnesses, namely, P.Ws.6, 7 and 11 admitted there in the Rajendra 5 Surgical Ward of P.M.C.H. for being treated for the injuries which they had received during the course of occurrence. He also obtained the injury certificates, i.e., Ext-3, 3/1 and 3/2 from the P.M.C.H. and after closing the investigation, sent up the appellants for their trial and accordingly the trial ended in the impugned judgment. 5. As regards the defence of the appellants there does not appear a clear suggestion given to any of the witnesses but what I find from the trend of cross-examination of P.W.11, the informant in paragraph-20 is that the defence attempted to bring on record certain facts regarding the dispute for land in between Usman, his uncle and Md. Hasid who happens to be the father of three appellants Jamil Akhtar, Samsuddin and Md. Sazad. It appears from the answers to different questions which have been recorded in paragraph-20 that P.W.11 was suggested that there was some land dispute between the parties and the informant and others were attempting to usurp the land of the said Md. Hasid, father of appellants Jamil Akhtar, Samsuddin and Md. Sazad on that account, probably, there was a false 6 implication of the accused persons. So far as statements of the appellants under Sections 313 Cr.P.C. is concerned specific question was put to them as to their specific defence and from the very answers recorded by the learned trial Judge during that course nothing appears coming out very clearly as regards the defence. But that is not going to have any effect on the proof of the charges because of the long standing principles of criminal jurisprudence that the prosecution has to stand on its own legs to prove the charges to the hilt against the accused persons and a lack of defence or absence of any defence or even the falsity of a defence plea may not be rendering any assistance to it. 6. So far as the merit of the appeal is concerned Sri Rajendra Kishore Prasad, learned counsel appearing for the appellants, firstly, attempted to impress upon the court that in view of the compromise already filed between the parties the court should proceed to dispose of the appeal in the light thereof as was recorded by in the office of this court on 21.4.1995. In fact after perusing the marginal notes appended by the office of the court, it 7 is found that the office has received the compromise petition on 13.4.1995 and had placed it for acknowledgement and perusal by the court and that appears acknowledged and perused as may appear from order dated 21.4.1995. However, it was directed that the compromise petition was to be considered at the time of hearing of the appeal. The above could be the reason for the learned counsel to bring into my notice the filing of the compromise petition and adoption of the same by the court for its consideration at the present stage, but on perusal of the provisions of Section 320 Cr.P.C. what I find is that on 23.6.1991 which is the date of occurrence offences either under Sections 307 IPC or any minor offences which might be found constituted in view of the evidence of the witnesses, like those under Sections 324 or 326 IPC could not be allowed to be compounded merely on filing of the compromise petition. Above all, offence under Section 326 may not be compoundable even with permission of the court and so far as the offence under Section 324 IPC was concerned Section 320(2)Cr.P.C. indicated that it could be a compounded with the permission of the trial court or of this 8 court also in the light of the provisions of Section 320 (6) Cr.P.C. as the parties have to be allowed by the appellate court, like, this court or the court of Sessions which could be hearing the appeal to enter into compromise. The absence of a petition seeking the permission or indulgence of this court in allowing the parties to compound the offence in the light of the above noted provisions was simply not permitting this court to act in the light of the compromise between the parties specially when the conviction of all the appellants is either by virtue of Sections 149 under Section 149 under Section 307 or 307 IPC which by no means was compoundable by any court. 7. In the above view of the matter I had to enter into the merits of the appeal as was suggested by the learned counsel appearing for the appellants and the learned counsel took the court straightway to the allegations which appear against the appellants generally or individually and thereafter to the evidence of the doctor P.W.10 who had examined P.Ws.6, 7 and 11 at the time of their admission or treatment in the P.M.C.H. It was contended by 9 the learned counsel appearing for the appellants that as regards the merit of the appeal the court must consider delay of two days in lodging the FIR fatal to the proof of the charges, besides considering that the place of occurrence was not found having any marks of violence, like, blood etc. It was contended that fardbeyan was recorded in absence of any witness as no one had signed it in that capacity. The next contention was that the occurrence was taking place at 8 P.M. on 3rd of June, 1991 and absence of source of light facilitating identification of the accused persons by the informant and witnesses also appears an infirmity in the prosecution case. The incident was occurring some where in the rural area of Chapra and in no time the injured were rushed or brought to P.M.C.H. and there is no explanation offered by the prosecution as to how and why they were not making a report to the nearest police station or to any other police station on way to Patna or were getting the injured checked up in any hospital or state dispensary. On the above grounds, the contention was that the prosecution had miserably failed in sustaining the charges. It 10 was lastly contended that the court must consider that the offence was taking place some times in 1991 and the appeal was preferred in 1994 which is being heard after 17 years today and most of the appellants have either reached a matured age or an age which could be an extenuating circumstance in their favour or for infliction of a lesser sentences upon all of them and, as such, it has been contended that the court should be lenient towards the appellant by allowing them to get away with the period already under gone as sentences inflicted upon each of them. 8. Sri Ajay Mishra, learned counsel appearing for the State and also Sri Aruni Singh, learned counsel appearing for the informant has resisted the prayer and submissions tooth and nail. It was contended that there could not be any escape for the appellants specially those who could have been found guilty for offence under Section 307 IPC in view of the dangerousness of the injury which was recorded by P.W.10 on P.W.6 Moin Ahmad. Besides, the other two injured P.Ws.7 and 11 were also having injuries on various parts of their bodies whereas they claimed 11 having been hit by as dangerous a weapon as chhura and these facts taken cumulative may point out the intent and knowledge were very much existing in the minds of the appellants specially Samsuddin, Jamil Akhtar and Md. Sazad for attempting to murder at least Moin Ahmad(P.W.6). Reference was made to the evidences of P.W.6 and 11 in that behalf besides to that of P.W.10 in order to drawing support as regards the submission on commission of offence under Section 307 IPC. The manner and the tenacity with which the learned counsel appearing for the informant stood up to make his submissions gave a clear signal that the matter of compromise was only a matter of record and it was never a matter of substance so as to be acted upon by any court. The learned counsel appearing for the informant took me to relevant parts of the oral evidence of injured witnesses and then referred to me the evidence of the expert P.W.10 and submitted that it was out and out an establish offence under Section 307 IPC. 9. I take up first the contention of the learned counsel appearing for the appellants on none finding of blood on the 12 place of occurrence and absence of other supporting findings, like signs of aggression or trampling there which was stated to by P.W.12, the I.O. of the case. For appreciating the evidence of the investigating officer, one has to consider many circumstances which are apparent from the record of the case. The occurrence was taking place at 8 P.M. on 23.6.1991. There is no dispute as there could not be any, in view of a very official record of the fact which comes in the form of Ext-2, the fardbeyan as also from the evidence of P.W.12, S.I. Hiralal Yadav that the injured persons were admitted in a particular ward, i.e., Rajendra Surgical Ward of P.M.C.H. They were occupying beds, it was recorded in the fardbeyan as also it was stated by P.W.12, the I.O. of the case that when he visited the above said ward of P.M.C.H. he found the three injured occupying three different beds. They could be there only when they had been shifted from place of occurrence to the hospital. They were shifted definitely after the time of occurrence, may be, on 23.6.1991 and this could be said without any evidence as well that the propensity and seriousness of the injuries 13 which were found by P.W.10 on their persons could be probably pointing out as to what attraction the incident had invited of on lookers or co-villagers. It could be said even by imagination that a huge number of persons could have assembled at the place of occurrence after the ha and hoopla the incident had generated. Crowd of persons who had assembled had undermined the importance of blood having dropped on the ground out of the bleeding injuries and could very well have trampled over such marks. Moreover this is no longer in dispute that P.W.12 had reached three days after the occurrence, i.e., on 26.6.1991 some times after 8.20 P.M. I could record that finding without inviting any danger of being arbitrary in recording it. The I.O. might have said as to when he left the place of occurrence but he has not exactly said the date he had gone there. The FIR was recorded at 8.20 P.M. on 26.6.1991. He must have visited the place of occurrence some times after and definitely when the light could have been for there. More than three days had passed when P.W.12 was reaching the place of occurrence and by that period of time it was not unusual 14 that P.W.12 was not finding either any mark of trampling or any signs of blood having fallen there. P.W.12 has definitely stated that the place of occurrence was the sahan in front of the darwaja of P.W.11 and all witnesses specially the injured, like, P.Ws.6, 7 and 11 have also stated that while they were sitting there they were assaulted and were inflicted injuries which bled refusely. Thus, in my considered opinion the absence of the blood or any other marks of violence indicating an occurrence having taken place there appears of no consequence. 10. The next argument which was set up by the learned counsel appearing for the appellants against the proof of charges was on the delay of two days in instituting the FIR. The discussion which I have just concluded on not finding any marks of violence or blood at the place of occurrence on most part of it may be the reasons for the delay in lodging the FIR. P.W.11 has stated in Ext-2 that he did not know as to how and to which place he was brought after the occurrence unless he had regained his consciousness on 25.6.1991 and when he was giving his fardbeyan, he could find 15 himself admitted in a hospital or lying in the bed in the Rajendra Surgical Ward of P.M.C.H. The fardbeyan is an official record. There is a presumption about its regularity as per Section 114(e) the Evidence Act. The regularity about the time when the document was recorded has also to be presumed specially when the defence has not challenged the fact that fardbeyan was recorded in the Rajendra Surgical Ward of P.M.C.H. at bed no.10 at 3 P.M. on 25.6.1991. The factum of unconscious of P.W.11 also appears not challenged. Thus, the reason is there as to why the document, fardbeyan, was belatedly recorded on 25.6.1991. The document was recorded by the officer of Pirbahore police station as may appear from the heading of the record, Ext-2, and as may further appear, the same was forwarded to the officer-in-charge of Dariyapur police station in Chapra from Pirbahore in Patna for necessary action and naturally as the place of occurrence fell in the jurisdiction of Dariyapur police station. Thus, the reason as to why the FIR was recorded on 26.6.1991 or fardbeyan was recorded on 25.6.1991 is cogently available from the very record of the document. 16 11. There could be two modes of registering the FIR, the first mode is spoken of by Section 154 of the Cr.P.C. which speaks about an information given orally or writing to the officer-in-charge of a police station regarding the commission of cognizable offence by persons known or unknown. There could be another situation which is available in most of the cases, that any victim of the offence or any relative of the victim gives a statement at place some where within or without the jurisdiction of the police station and in that case the statement is recorded in almost all cases on plain paper and that document is headed as fardbeyan which is also a report first in point of time as regards the commission of a cognizance offence and both modes are recognized by the relevant Rules of Bihar Police Manual, 1978. Practicability of the provision of law has always to be considered, else it will become impracticable and it could be simply impossible in most of the cases to make a record of the first information report. When the modes are prescribed under law and they are duly recognized in practice, then procedural 17 technicalties could never be allowed to keep the justice delivery system at ransom. I have just noted as to why the fardbeyan was recorded on 25.6.1991 and in that view the contention of two days delay appears not sustainable and on that account the same could not be said to afflict the proof of the charges as an infirmity. 12. The third contention, and the most important ones, was on the lack of the source of identification on the place of occurrence. One may first note that it was the month of June and it was 8 P.M. The place was a darwaja of the informant where the three brothers were already sitting. A simple experience of rural- life may point out that it is not thought good that a place, like, darwaja is left in darkness in the early hours of evening unless people take there dinners and retire to their beds. Even during those hours when some one was retiring to bed some source of light is kept there. Even if I grant the submissions that there was a complete absence of the source facilitating identification of the accused persons, the simple fact which emerges from the record of the case is that if the accused 18 persons were identifying and picking up their targets, i.e., P.Ws.6, 7 and 11, rightly so as to inflicting blows with chhura with such precision as is pointed out by the evidence, then what could be the difficulty in the injured persons in identifying their close villagers who were at the darwaja and so close to their bodies as to inflicting blows. The identification was properly made by both the parties of persons who were being targeted and who were targeting the injured. 13. In their evidence P.Ws.6, 7 and 11 have individually and collectively pointed out as to how the accused persons arrived at the darwaja of P.W.11 and how the appellant Jamil Akhtar dealt telling chura blows on P.W.6 Moin Ahmad. They have also given evidence as to how P.W.7 and P.W.11 were assaulted respectively by appellants Samsuddin and Md. Sazad with a similar weapon and place which are indicated by informant in fardbeyan. Other witnesses who come forward, like, P.Ws.1 and 2 they have also supported the manner of assault by the accused persons on the three injured persons. Injured persons on account of being injured could never be doubted to be present at the place of 19 occurrence. As regards the other witnesses, like, P.Ws.1 and 2 the simple suggestion thrown to them was that they were men of the camp of Matin Ahmad(P.W.11).How were they men of Matin Ahmad, nothing was brought in that behalf on record even by throwing remote suggestions Their presence also appears probable as both of them were named in the FIR as witnesses and their evidence when considered appears inspiring confidence. 14. The evidence of P.W.10 Dr. Nirmal Kumar Singh is important. He on examination of P.W.6 Moin Ahmad found the following injuries on his persons:- (a)Incised wound 12”x2 ½ “x1/2” from right lower neck to front of left chest 2” lateral to left nipple. Wound was tailing up ward towards neck. Wound had three apertures and was bleeding fiercely. (b)Incised wound 3”x1”x1” obliquely over right illiac fossa of abdomen. (c)Incised wound 1 ½”x1/2”x1/2” over front of left chest situated vertically lateral to left nipple from injury no.1. 15. In his opinion P.W.10 has stated that injury no.1 was grievous whereas injuries 20 nos.2 and 3 were simple in nature but all the injuries were caused by sharp cutting instrument like a chhura. 16. It was on account of the injuries found specially on P.W.6 that the court was going to hold the case to be under Section 307 IPC because the dimension of injury no.1 which has just been noted above was so big as to leaving no room for the court in reaching that opinion. But, what comes to my mind is that the injury has been described as grievous. Now in order to constituting an offence under Section 307 IPC it was desirable that the doctor should have said that the injuries taken cumulative or solitary injury no.1 was dangerous to life or was endangering life. This is the simple distinction which delineates the case of the appellant from one under which they were convicted. It is true that the other two injured persons were also having one or more than one injury and those injuries were also inflicted by chhura but the absence of the opinion of the doctor as regards the dangerousness or endangering character of the same, it could simply be dangerous for this court to dwell into speculation or imagination 21 and then to say that the trial court was justified in recording that the charge under Section 307/149 was duly established. It might be an attempt, but the attempt of committing murder could never be said to be established only on account of having attempted to inflict a grievous injury.