Offences U/s 307 and allied sections of Penal Code is the offence against the Society [CASE LAW]

Penal Code, 1860 – S. 307 - Attempt to Murder - the offences U/s 307 and allied sections of penal code is the offence against the society, irrespective of the fact to whom it was caused and to gauge the gravity of the offence, nature of weapon used, seat of the injuries and number of the assault inflicted upon the injured are guiding factors.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Hon’ble Rahul Chaturvedi J.

Order date: 27 May 2019

CRIMINAL APPEAL NO. 552 of 1998

Dilsad v. State of U.P.

Counsel for the Appellant:- S.L. Kesharwani, S.K. Pundir.

Counsel for Respondent:- Govt. Advocate & Jagvir Singh.

1. Heard Sri SK Pundir, learned counsel for the appellants, Shri Jagvir Singh, learned counsel for the informant and learned A.G.A. for State, perused the records.

2. The instant Criminal Appeal has been targeted against judgment and order of conviction dated 19.3.1998 passed by the V-Additional Session Judge, Saharanpur in S.T. No. 601/1992 (State Vs. Dilsad and another) whereby the trial court has convicted and sentenced appellant nos. 1,3, 4, 5 and 7 (Dilshad, Raees, Fana alias Irfan, Jamsed and Mansoor respectively) rigorous imprisonment for one year under sections 148 IPC each, three years rigorous imprisonment under sections 307/149 IPC each, six months rigorous imprisonment under sections 323/149 IPC each, and appellant no.2 and 6 (Riyasat and Zuber respectively) were awarded six months rigorous imprisonment U/s 147 IPC each, three years rigorous imprisonment under sections 307/149 IPC each, six months rigorous imprisonment under sections 323/149 IPC each.

3. Perusal of the order-sheet reveals that the order dated 25.3.1998,coordinate Bench of this Court while admitting the appeal, summoned the lower court record and granted bail to all the appellants and since then they remained on bail.

4. During the pendency of instant appeal, it has been argued by the counsel for the appellants that parties have come to terms and have buried all their disputes and differences and the said compromise was placed before the learned VIIth Addl. Sessions Judge, Saharanpur on 20.10.2018 while affixing the photographs of both the parties and signed by all the concerned persons. Not only this, affidavits were also sworn on behalf of Dilshad, Riyasat, Raees, Fana alias Irfan (all sons of Seedu), Jamshed s/o Jeemu, Jubair s/o Ishtiaq, Mansoor s/o Mangta. On the other hand Islamuddin s/o Alauddin (the injured), Ahmad s/o Alauddin, (alleged injured) and Saifuddin s/o Alauddin (injured) have filed their respective affidavits, mentioning therein that both the contesting parties belong to one and same family as they are co-laterals and after the judgment with the assistance of respectable persons of the society, now they do not intend to proceed with the instant appeal any more, therefore, vide application dated 22.02.2018 it has been prayed that the parties may be permitted to compound the offences including the offence U/s 307 IPC (noncompoundable offence).

5. In the light of the aforesaid settlement and compromise arrived at between the parties, they have prayed for setting aside the impugned judgment and order dated 19.3.1998 as well as for the acquittal ofthe appellants in the aforesaid offence. This application has been supported by a joint affidavit sworn in by Mohd. Deen s/o Alauddin (deponent/complainant), Islamuddin s/o Alauddin (deponent/injured victim), Ahmaddin s/o Alauddin (victim/injured) and Saifuddin s/o Alauddin.

6. Coordinate Bench of this Court, vide order dated 25.09.2018 was pleased to pass following order: -

“A joint affidavit has been filed by the informant and the injured of this case, whereby it has been informed about the settlement of the dispute entered it into between the accused and the informant side and thereby, it has been prayed that this joint affidavit may be considered and this appeal be disposed in terms of compromise between both the parties primarily under Section 307 I.P.C.

Contents of affidavit and the compromise application can be placed before the concerned trial court and the converned trial court may verify the authenticity and veracity of the contents dealing with compromise between the parties and will ensure physical verification of both the parties and shall submit its report forthwith to this court about the outcome.

The appellants are given two weeks time to do the needful.”

7. In compliance of the aforesaid order, the concerned Trial Judge vide order dated 22.02.2018, after calling upon all the concerned parties, verified the contents of the compromise and the signatories over it, sent its report to the Court, which finds place on the record.

8. Today the matter was pressed by the learned counsel for the appellants that the matter may be heard and desired aforesaid prayer may be adjudicated.

9. Before adjudicating the matter on merits, it is relevant to spell out,bare skeleton of the facts, giving rise to the present appeal.

Mohammad Deen lodged an FIR on 14.11.1991 at 2.00 P.M. during day hours at Police Station-Sarsawa with the allegations that on the fateful day, he along with his other brothers were watering their agricultural field at about 11.30 hours, the appellants namely; Dilshad armed with country made pistol, Riyasat armed with lathi, Raees and Irfan armed with Kharpal, Jamshed armed with spade (Phawada), Jubair armed with lathi and Mansoor armed country made pistol (Katta) tried to disrupt the flow of water and on objection Dilshad shot fire, causing injuries to Saifuddin on his head (near eyebrows), meantime rest of the appellants indiscriminately assaulted the side of the informant wherein the informant Islamuddin and Ahmad Deen sustained injuries by lathi, Kharpal and Phawada, coaccused Mansoor also opened fire at the informant, which missed its aim. This aforesaid incident was witnessed by number of co-villagers, who saved them.

10. The FIR to this effect was registered as Case Crime No. 185/1991 U/s 147, 148, 307, 323 I.P.C. (Exhibit-II) and the injured were examined by Dr. T.Raj Sharma on 14.11.1991 during 3.45 to 4.25 P.M. The police after investigation, submitted charge sheet U/s 147, 307/149, 323 I.P.C. against Dilsad, Riyashat, Raees, Jamshed and Irfan @ Fana and against Jubair only U/s 147, 307/149 and 323/149 I.P.C. and ultimately they were charged with offences U/s 148, 307/149, 323/149 I.P.C. All the accused persons denied theirparticipation in the offence and pleaded not guilty.

11. In support of prosecution witnesses, six prosecution witnesses were examined including Dr. R.K. Gupta, Radiologist, Dr. T. Raj Sharma, the concerned doctor.

12. This Court fetched an opportunity to peruse the injury reports of the injured persons wherein it found that injured Saifuddin sustained three injuries on his person including the injury over his head, which is skull deep vertically placed, from which fresh blood was oozing out. Another injury was detected over internal side of forehand of the aforesaid injured, there was also a complaint of pain in the bottom side of his back but no visible injury was found on this part of the injured. Except injury no.1, rest of injuries were opined to be simple in nature. Injury no.1 was advised for x-ray. Perusal of the x-ray report of Saifuddin, prepared by Dr. R.K. Gupta, it was opined by the Radiologist that injury no.1 was serious and grievous in nature. Thereafter, injured Saifuddin was admitted in a hospital from 14.11.1991 to 10.12.1991. Another injured, Islamuddin was also examined by the doctor, who sustained as many as five injuries over his person but except injury nos.1 and 2, rest of injuries was simple in nature. The doctor opined that all the injures were fresh in duration and injury nos. 1 and 2 were advised for x-ray wherein it was opined to be caused by hard and blunt object. The third injured Ahmaddin was examined on the same day and as per opinion of the doctor, he received as many as nine injuries over his body, out ofwhich except injury nos. 2 and 3, all the injuries were simple in nature and were advised for x-ray. These injuries were opined to be caused by hard and blunt object i.e., Kharpal , lathi and Phawada and were fresh in duration. Lastly injured Mohamaddin was also examined, who sustained as many as five injuries over his person and all those injuries were simple in nature, which were opined to be caused by hard and blunt object, all the aforesaid injuries were fresh in duration.

13. After framing the charge and taking into account and adjudicating the matter on merits, the learned Sessions Judge has opined that the prosecution has succeeded in establishing the case beyond an iota of doubt, the story narrated in the FIR is fully corroborated with the medical evidence, corroborating all the material on record and thus, convicted and sentenced the accused persons, Dilshad, Mansoor, Raees, Jamshed and Irfan @ Fana under sections 148, 307/149, 323/149 I.P.C., Riyasat and Jubair under sections 147, 307/149 and 323/149 I.P.C. by the order impugned.

14. As mentioned above, their appeal was admitted and the accused were bailed out at the time of admission of appeal vide order of the coordinate Bench on 25.3.1998 itself.

15. It is contended by the learned counsel for the appellants that though the appellants were convicted but off-late during the pendency of appeal, better sense prevailed between them, keeping inview that they are co-laterals and belong to one and same family, therefore, in light of the aforesaid affidavits and the application moved before this court on 22.02.2018, the appeal may be allowed in the terms of the compromise.

16. Recently, this Court came across a latest judgment delivered by Hon'ble Apex Court in the case of STATE OF MADHYA PRADESH VS. LAXMI NARAIN (Criminal Appeal No. 349/1999 & 350/1999), wherein the Full Bench has decided the aforesaid appeals on 5th March 2019, dealing with the similar situation, laid much emphasis that the offence U/S 307 IPC is an offence against public and falls within the category of heinous and serious offence and be treated as crime against the society, irrespective of the fact that the same has been caused inter-se relationship between the same co-laterals. Relevant extract of the judgement, pronounced by the Hon'ble Apex Court in LAXMI NARAIN's case (Supra) is extracted herein below:

“13......(iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entiredispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC.

For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation.....”

17. Thus, the parameters laid down by Hon’ble Apex Court are the guidelines through which compromise arrived at between the contesting parties before this court in the appeal can be well adjudicated.

18. On a keen analysis of the above paragraph, it is crystal clear that the offences U/s 307 and allied sections of penal code is the offence against the society, irrespective of the fact to whom it was caused and to gauge the gravity of the offence, nature of weapon used, seat of the injuries and number of the assault inflicted upon the injured are guiding factors.

19. In the instant case, the appellants assaulted mercilessly four injured persons, by their deadly weapons, inflicting injuries on vital parts of their respective anatomical persons.

20. Keeping in view the injuries sustained by the injured persons, the weapon used, this Court declines to compound the offence and acquit them on the basis of compromise.

21. During the pendency of the appeal in furtherance of the developments erupted due to some formidable circumstances, in the year 2018, a joint affidavit was moved, signed by the informant as well as all the injured persons that the accused/appellants and the informant/injured persons, all are co-laterals and they have buried their differences and disputes out side the court and now the informant/injured have pardoned them, therefore, do not wish to proceed against the applicants any more. On top of it, after the incident, occurred in the year 1991, no untoward incident happened between them and all of them are now residing peacefully and amicably.

22. Learned counsel for the appellants has relied upon principles of law enunciated by Hon'ble the Apex Court in the case of NANDA GOPALAN VS. STATE OF KERALA [(2015) 11 Supreme Court Cases 137] wherein it is held that just and appropriate sentence has to be imposed, keeping in mind the proportion between crime and punishment and having regard to facts and circumstances of eachcase particularly, nature of injuries sustained by the injured, weapon used sentence prescribed, mitigating and extenuating and other attending circumstances. The crux of the matter can be derived from the last paragraph of the aforesaid judgement and order is that reduction of sentence of imprisonment of the appellant to the period already undergone while increasing the amount of compensation to be paid to the victim, is justified.

23. In the larger interest of justice, learned counsel for the applicants reiterating his aforesaid contentions has also relied upon the principles of law in the following cases also:

24. In the case of Ishwar Singh v. State of Madhya Pradesh [(2009) 3 SCC (Cri.) 1153], Hon’ble Apex Court while taking into account the the matter of compromise between the parties has relied upon the ratio laid down in the case of Jetha Ram v. State of Rajasthan, (2006) 9 SCC 255, reduced the sentence, imposed on the appellant-accused already undergone, though the offences were not compoundable, whilst the conviction order convicting the appellants U/s 307 I.P.C. and other allied sections of Penal Code were there into being. The latest citation on the matter is cited as SHANKAR AND OTHERS VS. STATE OF MAHARASHTRA AND OTHERS [Criminal Appeal No. 390/2019) decided by Hon’ble Supreme Court on 26.2.2019], whereby it was opined by Hon’ble Apex Court that it would not be appropriate to order compounding of the offences not compoundable under the code, ignoring and keepingaside the statutory provisions.

25. However, the aforesaid limited submissions of the learned counsel for the appellants deserves consideration on the issue as to while imposing substantive sentence, the factum compromise between the parties is indeed a relevant circumstance which the court may keep in its minds.

26. Undisputedly in the aforesaid transaction of the case, four persons were seriously injured by a joint assault extended by the appellants/accused persons armed with deadly weapons, inflicting serious injuries upon them but the fact remains that the incident relates to the year 1991 and since then no untoward incident took place between them and they are peacefully residing.

27. Therefore, this Court is of the considered opinion that ends of justice would be suitably met if while maintaining the conviction and sentence against the appellants, the sentence of the imprisonment awarded to the appellants is reduced to the period already undergone.

28. The order of conviction dated 19.3.1998 passed by the VAdditional Session Judge, Saharanpur in S.T. No. 601/1992 (State Vs. Dilsad and another), maintaining the conviction and sentence awarded to the accused appellants is modified to the extent of the maximum period of three years, already undergone on the condition that the appellants pay a compensation, payable to the victim, whichis computed to the tune of Rs. 2,50,000/- (Two lakhs and Fifth Thousand), which will be distributed amongst the injured persons equally within a period of six months from the date of pronouncement of this judgment.

29. The instant appeal is, accordingly partly allowed.

30. Copy of the order be transmitted to the court concerned within a fortnight for necessary compliance.