Faizan Ahmad vs State of U.P.

C.A. Rahim, J.—This appeal has been preferred against the judgment and order pronounced by the Sessions Judge Saharanpur on 1051979 in S.T. No. 410 of 1978, convicting appellant under Section 307, I.P.C. and sentenced to undergo R.I. for three years.

The prosecution case, in brief, is that when the complainant''s son demanded repayment of Rs. 570 due from the accused at about 2 p.m. on 21101978 and while he was passing in front of the shop of the Jani, the accused appellant abused the complainant''s son Nasir Ahmad and then he took out a knife from his pocket stabbed Nasir Ahmad at his abdomen and two other places. He raised an alarm on which Ghafoor (P.W. 6) and one Rafiq came there and the accused ran away from the place. Ghafoor took him to hospital in a rickshaw where he was examined at 2.20 p.m. On his person three incised wounds were found at the abdomen, left little finger and upper part of the left forearm. All the injuries were bleeding. Injury No. 1 was kept under observation. The other two injuries were simple in nature. He was admitted to the hospital and was operated upon surgically. Injury No. 1 was then found to be grievous. The injury extended into abdominal cavity deep inside where omentum was found cut at three places. Rafiq called Bhoora, father of Naseer soon after the incident who met him in the hospital where Nasir told him about the incident. Bhoora went to the police station and get a report scribed by one Gurcharan Singh and submitted it to the police station which was treated as first information report. A case under Section 324, I.P.C. was registered. The kurta and baniyan which were on the person of Nasir at the time of the incident were stained with blood and those were handed over by Bhoora to the police station. Later on 2111978 S.I., B.D. Jakhmola took up the investigation. He recorded the statements of the witnesses, including injured Nasir, went to the place of occurrence and prepared one site plan. Nasir remained at the hospital for about fourteen days. After completion of investigation a chargesheet was submitted on 4111978 under Section 307, I.P.C. and charge was framed accordingly.

Five witnesses were examined on behalf of the prosecution. Out of which P.W. 1 Bhoora was the complainant, Nasir Ahmad was examined as P.W. 4 and Abdul Ghafoor, who arrived at the place of the occurrence immediately after the incident was examined as P.W. 5 The learned trial judge after considering the evidence and materials on record convicted and sentenced the accusedappellant in the aforesaid manner.

Sri A. A. Ansari, learned Counsel appearing for the appellant has submitted that the dispute has been compromised outside the court and both the parties have agreed not to proceed with it. He has referred the case of Mnhesh Chand and others v. State of Rajasthan, 1988 JIC 78 (SC). It was held by the Supreme Court that:

"The accused were acquitted by the trial court, but (hey were convicted by the High Court for offence under Section 307, Indian Penal Code. This offence is not compoundable under law. The parties, however, want to treat it a special case, in view of the peculiar circumstances of the case. It is said and indeed not disputed that one of the accused is a lawyer practising in the lower court. There was 3 counter case arising out of the same transaction. It is said that that case has already been compounded......

Alter examining the nature of the case and the circumstances under which the offence was committed it may be proper that the trial court shall permit them to compound the offence......"

The special circumstances in which the Supreme Court directed the lower court to accord permission to compound the of fence are not present in the instant case It is not a case where the trial Judge has acquitted the accused or that the accused holds any special status in the society. Moreover, I find that the Legislature in its wisdom has made Section 307, I.P.C. noncompoundable it may be within the domain of the Supreme Court to give direction for according permission to compound an offence which law does not permit. I do not think the High Court has such power. In the instant case the prosecution case is that the accused was working as a carpenter in the shop of the victim on a monthly salary of Rs. 200 about 11/2 or 2 years ago. The victim used to make advance payment for which he owed Rs. 570 from the accused which he did not pay. Another circumstance should also be considered in this connection is that the accused inflicted knife injury on the abdomen which according to the doctor was grievous and dangerous to life. Considering all the circumstances I do not find any reason to give permission to compound the offence, as prayed for.

While looking into merits of the case it appears that the trial Judge has rightly convicted the accused under Section 307, I.P.C. The learned Counsel has submitted that the attack was made on spur of the moment and not premediated and he had no intention to commit the murder. The case is that the accused was carrying a knife in his pocket when the demand was made for payment of money, he suddenly took out the knife from his pocket and hurled it on the abdomen of the victim. The injury report and also the evidence of the doctor shows that it went deep inside and had cut omenturn into three pieces. According to the doctor it was not only grievous but dangerous to life. In the evidence of the victim P.W. 4 it appears that before hurling the knife the accused stated NA RAHEGA AUR NA PAISA MANGEGA and then stabbed it on the abdomen of the victim. The accused was aged 25 years at the time of the occurrence. He must have knowledge that if a knife is hurled on the abdomen with such force it can be fatal. Considering the utterances of the accused at the time of hurling knife and also nature of injury it is clear that he intended to commit the murder for which he has been rightly convicted under Section 307 I.P.C.

The learned Counsel has submitted that P.W. 5 Abdul Ghafoor filed one affidavit stating that he did not witness the occurrence. The learned trial Judge has discussed it at length about the impact of the said affidavit and has come to conclusion that it did not affect the material evidence of the said witness as he never claimed that he has seen the occurrence. From the evidence of Abdul Ghafoor, P.W. 5, it appears that he arrived at the place of the occurrence and saw the victim standing near the shop of Jani. He did not find the accused at that place. The victim told him that Faizan Ahmad accused stabbed him with the knife. In crossexamination he has stated that at that time he saw the victim to hold the abdomen with his hand. After going through the evidence of P.W. 5 Abdul Ghafoor I find that he is a reliable witness and has corroborated the prosecution case in material particulars. The first information report was lodged about 21/2 hours of the occurrence by the father of the victim. He also did not claim that he saw the occurrence but only reached the hospital after receiving information about assault on his son. The victim narrated the entire incident to him and he went to the police station straight way. So there is no scope of deliberation or concoction to any part of the prosecution story. Accordingly I find that the prosecution has been able to prove beyond doubt that the appellant hurled knife blow on the person of the victim in order to commit murder. There is no infirmity in the judgment of the learned trial Judge for which it can be interferred.

The learned Counsel has referred the case of Abdul Wahid v. State of U.P,1980 A. Cr. R 248 and submitted that in similar circumstances this Court convicted the appellant under Section 324, I.P.C. and not under Section 307, I.P.C. He has referred paragraph 4, wherein it appears that the victim suffered one punctured wound 1.8 cm. x 0.7 cm x abdominal cavity deep over the abdomen left side. A small piece of omentum was protruding from the wound. I do not consider that this case is similar to the instant one. Since in this case the wound not only extended to the abdomen cavity deep inside but also cut omentum in three places. The nature of injury speaks about the strength by which the knife was hurled. Since the facts are distinguishable, I am not inclined to accept that this is a fit case where the offence under Section 307,I.P.C. can be altered to Section 324,I.P.C.

With regard to the imposition of sentence the learned Counsel has submitted that there should be some leniency as the appellant suffered pain and agony for last 17 years. He was a young man and required some consideration in that respect. From the judgment of the learned trial Judge I find that such consideration was made by the learned trial Judge and a lenient view was taken at the time of imposition of sentence but considering the delay in disposal of the appeal and also considering the age of the accused appellant I find that imposition of sentence to the extent of the one year will meet the ends of justice.

Conviction of the accusedappellant under Section 307,I.P.C. is hereby affirmed but the sentence is reduced to one year''s R.I. and further he is sentenced to pay a fine of Rs. 1,000, (Rs. one thousand), in default to suffer R.I. for three months.

With the above observations, the appeal is dismissed.