P.N. Sinha, J.
1. This appeal is directed against the Judgment and order of conviction passed by the learned Assistant Sessions Judge, Rampurhat, Birbhum in Sessions Case No. 58 of 1999 thereby sentencing the appellants to suffer R.I. for 8 years and to pay a fine of Rs. 2000/- each in default further R.I. for 3 months each for the Penal Code (in short IPC), to suffer R.I. for 7 years each and to pay fine of Rs. 1000/- each, in default, to suffer further R.I. for 11/2. months each for the offence under Section 326/34 of the IPC and further sentence of R.I. for 8 years each and to pay a fine of Rs. 2000/- each, in default to suffer further R.I. for 3 months each for the offence under Section 458 of IPC.
2. The prosecution case, in short, is that at about 2 a.m. night intervening between 25.4.95 and 26.4.95 three unknown persons entered into the house of informant Kajem Hossain (P.W. 1) and they called his father by name and hurled a bomb which struck on the left hand of his father Najibur Rahaman (P.W. 3) as a result of which his father got serious injury on his left hand as well as on nose and left eye. His father fell down on the courtyard and he and other inmates who were daughters-in-law of P.W. 3 came out of their rooms and raised alarm as a result of which the miscreants fled away. While the miscreants were fleeing away P.W. 1 Kajem Hossain could recognise two out of three miscreants in torch light which he had in his hand and the said miscreants were Meeting Sk., son of Matai Sk. and Moslem Sk., son of Riasat Sk. of village Kharasinpur. The miscreants who had entered into their house could not take away anything from their house. His father was taken to Rampurhat Sub-Divisional Hospital and from there he was shifted to Burdwan Medical College and Hospital for treatment and after admitting father into Burdwan Hospital P.W. 1 returned to village and lodged the written complaint/FIR (Exit. 1) on 27.4.95 explaining the delay in lodging FIR in that manner. On the basis of such complaint/FIR Mayureshwar P.S. Case No. 39/95 dated 27.4.95 under Section 460 of the IPC read with Section 9(b)(ii) of the Indian Explosives Act (in short I.E. Act) was started against accused Meeting Sk. and Moslem Sk. (the present appellants). After completing investigation the Investigating Officer (in short I.O.) submitted chargesheet against the appellants Moslem Sk. and Meeting Sk. under Section 458/326/307/34 of IPC and under Section 9(b)(ii) of the I.E. Act. The trial that followed ended in conviction and the sentence of the appellants as mentioned above.
3. In this case, the prosecution examined 13 witnesses in all in order to prove its case namely, P.W. 1 Kajem Hossain (informant), P.W. 2 Biswanath Hazra, P.W. 3 Najibur Rahaman (injured), P.W. 4 Eindad Hossain (another son of injured), P.W. 5 Soharab Ali, P.W. 6 Yasmenna Begam (daughter-in-law of injured), P.W. 7 Tajel Ali, P.W. 8 Furkan Ali, P.W. 9 Dr. Sudhangsu Sekhar Patra, P.W. 10 Dr. Sajal Roy, P.W. 11 Sudhir Kumar Kundu (I.O.), P.W. 12 Falguni Majhi (first I.O.) and P.W. 13 Dr. Madan Mohan Roy.
4. Out of aforesaid 13 witnesses P.W. 2 was the record supplier of Bardwan Medical College and Hospital who supplied the bed head-ticket, X-Ray plates etc. in respect of injured Najibur Rahaman to the I.O. who seized the same. P.W. 9 is a medical officer attached to Rampurhat Sub-Divisional Hospital who on 26.4.95 examined the injured Najibur Rahaman admitted in the said hospital with injuries due to bomb blast. P.W. 10 is another medical officer who was attached to Burdwan Medical College and Hospital on 26.4.95 and the injured was admitted at that hospital on that day at 2.05 p.m. and he examined the injured. P.W. 13 is the another medical officer who was also attached to Burdwan Medical College and Hospital on. 26.4.95 and he also examined the injured. Besides the three doctors, the other two witnesses are police officers who do not come under the category of eye-witnesses or witnesses who came to place of occurrence just after the incident and heard about the incident. The police officers are P.W. 11 and P.W. 12 out of whom P.W. 12 is the first 1.0. and P.W. 11 is the second I.O. who submitted charge-sheet. Evidence of P.Ws. 9 to 13 are corroborative in nature and prosecution case will depend upon the evidence of the eye-witnesses and post-occurrence witnesses and the corroborative evidence of these five witnesses.
5. The witnesses who come under the category of eye-witnesses and post-occurrence witnesses are P.W. 1, P.W. 3, P.W. 4, P.W. 5, P.W. 6 P.W. 7 and P.W. 8.
6. P.W. 1 is the informant as well as eye-witness of the incident. He in his evidence stated that the incident took place in the night intervening between 25.4.95 and 26.4.95 at about 2 a.m. They were sleeping and he awoke from sleep hearing the sound of barking of their dog. He came out of his room on the courtyard with a torch in his hand. His father who was sleeping on the varandah also came down to courtyard, and his father had also a torch in his hand. He and his father both flashed their torches and in torch light found two persons at the bottom of their boundary wall and another person on the boundary wall inside their house. He could recognise two of them namely, Moslem Sk. and Meeting Sk. and the third one was unknown to him. Moslem Sk. hurled one bomb aiming at his father who sustained injury on his left armpit and also on nose and eye. His father sustained severe bleeding injury and seeing this he raised alarm and then the miscreants started fleeing away after scaling the boundary wall. He then opened the door of their boundary wall and shouted for help and his wife and sister-in-law also raised alarm. Hearing their alarm the neighbours assembled in their house which included his elder brother Emdad Hossain, and the others were Tajel Ali, Soharab Sk., Furkan Ali etc. He and his father then narrated the incident to such witnesses who came to their house hearing the hue and cry. His father was taken to Baina 'more' on a rickshaw and from there in the ambassador car of Bhakat he was shifted to Rampurhat Sub-Divisional Hospital. The doctors at Rampurhat hospital advised to shift the patient to Burdwan Medical College and Hospital. Thereafter, they took Najibur Rahaman to Burdwan by train and got him admitted at Burdwan Medical College and Hospital. He came back next day and lodged the FIR coming to Mayureshwar P.S. The FIR or the written complaint submitted by him at Mayureshwar P.S. was marked Ext. 1 The police during investigation seized remnants of bomb, two blood-stained pillow covers, blood-stained lungi of his father and also seized the torches later on. He was a witness of the seizure of articles.
7. From his cross-examination we find that from the first date of investigation he had the torches with him, but on that date the torches were not seized and he produced the torches at Mayureshwar P.S. on 17.5.95 when those were seized. He could not remember as to whether before the doctor at Rampurhat Hospital he stated the names of the appellants as the assailants of his father. He stated about senseless condition of his father from Rampurhat Hospital upto Burdwan Hospital. He admitted that in the FIR he did not mention about awakening from sleep hearing sound of barking of dog. His evidence reveals that some flesh fell down on the courtyard where his father fell down after sustaining the bomb injury. Subsequently, he stated that the flesh scattered here and there and blood oozed out from place of injury. The accused persons fled away to the north side where the main road runs. He denied the defence suggestion that he recognised them while they were escaping and stated that he recognised them earlier. His evidence reveals that houses of Badruddoja, Fajrul, Emdad Hossain, Tajel Ali were near to their house and Tajel was staying in the icecream mill on that night. He denied the defence suggestion that on that night he did not see any accused.
8. Evidence of the injured P.W. 3 reveals that on the night of the incident he was sleeping on varandah of his house. He had a house at Kharasinpur and another at Bahina alias Baina. He used to stay in his Baina house. On that night he was in the house of Baina name and called him 'shala Najibur beriye aie' i.e. invited him to come out. When he came on the courtyard the distance between him and the main gate of their house was only 5/6 cubits and he found Meeting Sk. and another miscreant were standing there inside their compound. By focussing his torch he found Moslem Sk. on the boundary wall over the main gate i.e. on the sunshade and as soon as he saw Moslem he hurled bomb. Due to the injury sustained by him a portion of flesh of armpit was scattered and bones were broken into pieces. He was not totally unconscious and he was unconscious for the time being only. We find from his evidence that he lost his sense before entering into Rampurhat Hospital, but later on the regained sense and he was conscious when he was admitted at Burdwan Hospital and this fact is well-corroborated by the doctor of Burdwan Hospital namely, P.W.10 Dr. Sajal Roy. His evidence further reveals that there was no enmity between him and Meeting Sk. and Moslem Sk. The height of his boundary wall was about 6' feet.
9. P.W. 4 Emdad Hossain, P.W. 5 Soharab Ali, P.W. 9 Tajel Ali and P.W. 8 Furkan Ali came to the house of P.W. 3 on the night of incident hearing hue and cry. All of them stated that they awoke from sleep hearing sound of bomb and hue and cry and rushed to house of P.W. 3. They found that P.W. 3 had sustained severe bleeding injury near his shoulder and they heard from P.W. 1 and P.W. 3 that Moslem Sk. hit Najibur by a bomb and the other accused Meeting Sk. was also present inside the boundary wall. They helped P.W. 3 to proceed towards Baina crossing on a rickshaw and from there in the car of Dukhita Prasad P.W. 3 was taken to Rampurhat Hospital. Subsequently, P.W. 3 was transferred to Burdwan Medical College and Hospital. It is evident from their evidence that P.W. 4 is one of the sons of P.W. 3. P.W. 5, P.W. 7 and P.W. 8 are the neighbours of P.W. 3 and P.W. 7 was staying in Husking Mill on that night.
10. The cross-examination of P.W. 4 reveals that the torches were seized in their house which we find is not a correct statement as evidence of P.W. 1 and the seizure list (Ext. 3/3) showing seizure of the torches clearly establish that the torches were seized on 17.5.95 at the police station being produced by P.W. 1. There was no serious cross-examination of P.W. 4, P.W. 5, P.W. 7 and P.W. 8. P.W. 5 and P.W. 7 were asked to state the name of the rickshaw puller which they could not state. They denied the defence suggestion that they learnt about some miscreants who assaulted Najibur by bomb. All of them in cross-examination stated that they learnt about names of assailants from P.W. 3 Najibur and also from P.W. 1 P.W. 8 denied the defence suggestion that before I.O. he told about identification of accused persons by Kajem Sk. only. P.W. 5 stated that wife of P.W. 4 is his niece and P.W. 7 stated that injured Najibur is his distant relative and P.W. 8 stated that P.W. 3 is his relative.
11. P.W. 6 Yasmeena Begam in her evidence stated that on that night she awoke from hearing barking of dog and after coming out of room she stood on the varandah. Her father-in-law, who was sleeping on the varandah and her brother-in-law Kajem both came on the courtyard and both of them focussed their torches and at that time a bomb was hurled on her father-in-law from the side of the main door of their wall. The man who was on the top of the boundary wall threw the bomb and other two miscreants who were standing inside the wall scaled the wall with the help of tubewell and thereafter all the miscreants fled away. The injury of ht r father-in-law was very serious and they nursed him by putting two pillows on both sides of his back. She learnt the names of the miscreants from P.W. 3 and P.W. 1 and also learnt that Moslem Sk. threw the bomb and the other miscreant who could be recognised was Meeting Sk.
12. In her cross-examination she stated that she saw the accused, persons in torch light when they were fleeing away. The door was opened after the miscreants fled away. Injury of her father-in-law was still bleeding and blood oozing out. Her father-in-law fell down on the courtyard sustaining the injury which was about 7' feet away from the varandah. She denied the defence suggestion that she did not hear the names of the assailants from father-in-law.
13. Evidence of P.W. 9 Dr. Sudhanshu Sekhar Patra, the doctor of Rampurhat Sub-Divisional Hospital reveals that on 26.4.95 he examined Najibur Rahaman and he was admitted with the injuries due to bomb blast. He found severe lacerated injury on left arm with fracture, dislocation of upper left humerus. Radial and brachial pulsations were present. Repair was done under G.A. and U. Cust given. Injury dorsum, left wrist stitched. Injury was also on the left side of the face which was also stitched. Patient was referred immediately either to Suri District Hospital or Burdwan Medical College and Hospital. His cross-examination reveals that the story of bomb blast was supplied to him by the patient.
14. P.W. 10 Dr. Sajal Roy was the doctor who was attached to Burdwan Medical College and Hospital on 26.4.95. He stated that the patient was referred from Rampurhat S.D. Hospital and he examined the patient at 2.05 p.m. on 26.4.95. On examination he found no history of unconsciousness and patient was conscious. He found bomb blast lacerated injury on left shoulder, 6' inch 4' inch approximately. Over left arm one lacerated injury 6' inch 4' inch approximately and one lacerated injury 2' inch 1/2' inch approximately on left eye. Commuted fracture was there of left humerus. Age of the injury was recent. The patient stated to him that he was assaulted by Moslem Sk. and Meeting Sk. of village Kharasinpur by bomb at about 1.45 a.m. of 26.4.95. His cross-examination reveals that the patient was conscious when he was admitted and was examined.
15. P.W. 13 is another doctor who was attached to Burdwan Medical College and Hospital as Professor and Head of the Department of Orthopaedics on 26.4.95. He examined the patient Najibur Rahanian at about 11 p.m. and on examination he found one bomb blast injury on the upper and outer aspect of left arm and shoulder with fracture of left humerus bone. On same day would was repaired and fracture was treated by several operations on different occasions. The patient was discharged on 7.6.95 and on 8.7.95 he issued a medical certificate. In cross-examination he stated that the bed head-tickets (Ext. 11 collectively) bears entry by his own writing dated 2.5.95 and 6.5.95. Besides him, other doctors also examined the patient but he personally held the surgical operations. During operation foreign bodies were detected in the wounds. In the medical papers it was not mentioned that penetrating materials were detected in the wounds.
16. P.W. 11 and P.W. 12 are the police officers who conducted the investigation. P.W. 12 received the complaint from P.W. 1 Kajem Hossain and started the Mayureshwar P.S. Case No. 35 dated 27.4.95. During investigation he visited place of occurrence and prepared rough sketch map of the place of occurrence. He made the formal seizure of articles from the place of occurrence and also the wearing apparel of injured and two white pillow covers which were stained with blood. He also examined the complainant and other witnesses and recorded their statements. His cross-examination reveals that during investigation it came to his notice that Firoja and her husband came out of their bedroom and found P.W. 3 groaning in pain with bleeding injury. He did not find existance of blood at the place of occurrence.
17. P.W. 11 stated that he examined witnesses like Tajel Sk., Furkan Ali, Emdad Hossain, Soharab Ali and also examined the injured at Burdwan Hospital. After collecting the medical papers he submitted chargesheet. His cross-examination reveals that P.W. 4 and P.W. 5 stated to him that before corning to place of occurrence they heard that some miscreants hurled bomb on Najibur resulting in his injury. In our opinion, this portion of evidence of I.O. does not help the appellants to suggest that case these witnesses did not hear names of assailants. Evidence of P.W. 4 and P.W. 5 on proper scrutiny reveals the fact that before reaching the house of P.W. 3 they heard about some miscreants who hurled bomb on Najibur Rahaman, but after entering into house of P.W. 3 they learnt from P.W. 1 and P.W. 3 that the appellant Moslem Sk. hurled the bomb on P.W. 3 causing his grievous injury and appellant Meeting Sk. was standing inside the boundary wall. Evidence of P.W. 4 and P.W. 5 being most probable and normal make them reliable and trustworthy witnesses.
18. Mr. Partha Sarathi Bhattacharya, learned Advocate for the appellant contended before us that in the FIR it was mentioned by P.W. 1 that he could recognise two out of three miscreants in the torch light when they were fleeing away. It was not possible for P.W. 1 to identify the miscreants seeing their back side in torch light as their faces were not visible. In the FIR no story of barking of dog was mentioned which was later on introduced in evidence. Mr. Bhattacharya also contended that besides P.W. 1 there were other sons of the injured who could have lodged FIR and even the neighbours could have lodged the FIR and it establishes that there was embellishment in the FIR due to the delay of its lodging and due to the delay in lodging FIR names of the appellants were inserted in the FIR. He further submitted that there was a police camp near the house of Dukhita Prasad Bhakat, but nobody and even P.W. 1 did not inform the said police camp about the incident. He also submitted that evidence of P.W. 6 regarding identification of accused persons is not believable and that she being a housewife she did not know the names of the appellants earlier and only heard the names of appellants from P.W. 1 and P.W. 3 and there was no T.I. Parade for her and after seven years it was not possible for her to identify the alleged miscreants in Court. The seized articles were not produced in Court and Dukhita Prasad and his driver were not examined by the prosecution during trial. According to Mr. Bhattacharya, all these matters clearly establish that very basis of the prosecution case is shrouded with doubt and identification of the appellants is not believable and prosecution introduced a concocted story.
19. We are not convinced with the submissions of Mr. Bhattacharya as in our opinion FIR is not encylopaedia and FIR need not be in minutest details See. Ram Udgar Jha v. State of Bihar 1987 Cr. LJ 113, Bishna @ Bhiswadeb Mahato v. State of West Bengal 2006 (1) SCC (Cri) 696 and Dhirajbhai Gorakhbhai Nayak v. State of Gujarat : 2003CriLJ3723 . Non-mention of barking of dog in FIR and mention of identification at the time of fleeing away in the FIR are minor omissions which are ignorable as FIR is not substantive piece of evidence. Evidence of P.W. 1 and P.W. 3, the injured relating to identification of Moslem Sk. and Meeting Sk. by torchlight in their house cannot be disbelieved and it is clear that they identified the accused persons before the miscreants actually started fleeing away. The troches were seized as it appears from seizure list marked as Ext. 3/3 and. from this seizure list we find that the torch of P.W. 3 being three-cell torch was powerful one and in the torch light both P.W. 1 and P.W. 3 identified Meeting Sk. on the courtyard near boundary wall and identified Moslem Sk. when he was on the sunshade of the boundary wall.
20. The delay in lodging FIR was properly explained. From the original written complaint/FIR (Ext. 1) written in Bengali it appears that the incident occurred after the day of 25.4.95 was over and in the night intervening between 25.4.95 and 26.4.95. From the evidence of the witnesses it is clear that the injured Najibur Rahaman was taken to Rampurhat Hospital in the morning of 26.4.95 and from there he was shifted to Burdwan Medical College and Hospital where he was admitted at 2.05 p.m. on 26.4.95. From evidence of P.W.I we find that he stayed at Burdwan on 26.4.95 and came back to his village next day i.e. 27.4.95 and thereafter he went to the Mayureshwar P.S. and lodged the FIR. The neighbours seldom take responsibility in lodging FIR and now-a-days general tendency of the people is to avoid of being involved in connection with any matter in which police or criminals are involved. Failure of the neighbours or other son of P.W. 3 to lodge FIR cannot be a ground to disbelieve the prosecution case when we find that P.W. 1 has properly explained the delay in lodging FIR. There was no delay in lodging FIR and question of embellishment and false insertion of name of the appellants does not arise.
21. Non-production of seized articles in Court during trial cannot throw the prosecution case out of Court and the same cannot be a ground to doubt the genuineness of prosecution case. The fact of seizure cannot be disputed and the fact of seizure of the articles is well-established from evidence of seizure witnesses, the evidence of seizing officer and the seizure list. It is not necessary that owner of the car or driver should be examined in Court when in fact, the bringing of injured P.W. 3 to Rampurhat Sub-Divisional hospital cannot be doubted and even the doctor of Rampurhat hospital (P.W. 9) in his evidence stated that on 26.4.95 he examined Najibur Rahaman in that hospital where he was admitted for his injuries due to bomb burst. P.W. 1 and others were busy for the treatment of P.W. 3 and for this reason they did not feel it necessary to inform the police camp which was allegedly near the house of Dukhita Prasad. It is the quality of evidence that requires consideration before Court and not quantity of evidence and it is not desirable that formal witnesses should be unnecessarily examined in Court. After all, P.W. 1 and other witnesses were human beings and not supermen and naturally, when they found that P.W. 3 Najibur Rahaman was seriously injured it was normal and probable conduct on their part to bring the injured P.W. 3 to hospital for his treatment first, and thereafter to shift him to Burdwan hospital for better treatment. We do not find that there was absolute reasonableness to inform the police camp which was near the house of Dukhita Prasad and over this matter prosecution case cannot be thrown out of Court. Normal conduct of P.W. 1 and other witnesses makes sure that the prosecution case was not doubtful.
22. Mr. Bhattacharya thereafter submitted that P.W. 1 in his evidence stated that his father was senseless all along whereas P.W. 1, the injured himself stated that he was not senseless all along and the stated the names of assailants before the doctor of Burdwan hospital and regained sense before admission to Burdwan hospital. Nobody stated names of the assailants before the doctor of Rampurhat hospital and these circumstances prove that story of regaining sense by P.W. 3 before admission to Burdwan hospital is unbelievable.
23. After considering the entire evidence and circumstances we are unable to agree with the views of Mr. Bhattacharya. Evidence of P.W. 3 reveals that there was no previous grudge or enmity between him and the appellants and being so question of falsely implicating the appellants does not arise. Each man his own sense of understanding, and capacity to perceive and perseverance and essential qualities of human character differ from man to man. It might be that P.W. 3 though not senseless did not keep open his eyes and was not making any talk due to his serious injury and it confused P.W. 1 who thought that his father was senseless all along. The injured himself can speak better of his condition of injury, condition of health and mental alertness. P.W. 3, the injured himself stated that he was not senseless all along and he was senseless temporarily. Evidence of P.W. 3 Sajal Roy, the doctor of Burdwan Medical College and Hospital who stated that patient was conscious when he was admitted and the patient stated to him the history of assault as well as the names of assailants. The evidence of P.W. 3 and P.W. 10 clearly prove that P.W. 3 was not senseless all along and name of the assailants was disclosed before the doctor of Burdwan hospital. Failure to disclose name of assailants at Rampurhat hospital cannot be a ground to raise the inference that names of the appellants were falsely introduced.
24. Evidence of P.W. 6 cannot be disbelieved merely for the reason that she identified the appellants in Court seven years after the incident. True, there was No. T.I. Parade in respect of accused persons for their identification by P.W. 6. Scrutiny of evidence of P.W. 6 reveals that she did not know names of accused persons previously and learnt their names from her father-in-law and P.W. 1. Even if we exclude the evidence of P.W. 6 relating to identification of appellants their identification is well-established from evidence of P.W. 1 and P.W. 3. Her evidence concerning her knowledge about names of accused persons from P.W. 1 and P.W. 3 is admissible under Section 6 of the Evidence Act as she immediately after the occurrence coming to courtyard saw her injured father-in-law and learnt the names of assailants from P.W. 1 and P.W. 3.
25. Mr. Bhattacharya also submitted that all the witnesses are relatives of P.W. 3 and their evidence cannot be relied upon to base conviction of the appellants. This submission, in our opinion, is without force and we are unable to agree with the views of Mr. Bhattacharya. At such dead hours of night hearing hue and cry and sound of bomb only the neighbours would come and it is idle to expect that people residing far away places would come to house of P.W. 3. From evidence of the witnesses it is crystal clear that P.W. 4, P.W. 5, P.W. 6, P.W. 7 and P.W. 8 were the neighbours and P.W. 4 being a son of P.W. 3 used to stay in their other house in village Kharasinpur. If some of the neighbours are relatives of either P.W. 1 or P.W. 3 that itself cannot be a ground to doubt their presence in the house of P.W. 3 on the night of incident and also to doubt veracity of their evidence when in cross-examination we have not found any material which can make the witnesses untrustworthy.
26. Mr. Bhattacharya submitted further that from evidence of P.W. 3 it appears when he first saw Meeting Sk. he was inside the boundary wall and was about 5/6 cubits away from P.W. 3, He did not hurl any bomb aiming at the injured. The appellants had no intention to murder Najibur Rahaman and had there been such intention Meeting Sk. who was standing very near to P.W. 3 could have hurled bomb against P.W. 3 to end his life. Moslem Sk. was standing on the sunshade of the wall and from that position he hurled the bomb as alleged by prosecution. The circumstances prove that Moslem Sk. also had no intention to cause murder of Najibur Rahaman. Moslem Sk. perhaps wanted to give threat to P.W. 1 and P.W. 3 and for that pvirpose he hurled the bomb. It proves that there was no element of Section 307 of IPC in this case. The elements of offence under Section 458 of IPC was not established at all. Some amount of element of Section 326 of IPC are there in this case but the appellants cannot be held guilty for the said offence. Identification of the appellants in the commission of such offence is doubtful and accordingly the appellants are entitled to be acquitted. Besides that, appellant Moslem Sk. was in jail custody for nearly one year and six months and Meeting Sk. was in jail custody for nearly five months. The periods spent by the appellants in jail are sufficient in respect of the sentence under Section 326 of IPC and if the Court finds them guilty, though their identification is doubtful, the Court may reduce their sentence to the period already undergone by them in jail. Mr. Bhattacharya also submitted that there was no meeting of minds between the two appellants as Meeting Sk. did nothing and he had no intention to cause injury to P.W. 3. Meeting Sk. cannot be convicted with the aid of Section 34 of IPC. In support of his contention Mr. Bhattacharya cited the decisions in State of Maharashtra v. Balram Bama Patil reported in 1983 SCC (Cri) 320, Lallan Rai v. State of Bihar reported in 2003 SCC (Cri) 301 and Bankat v. State of Maharashtra reported in 2005 SCC (Cri) 316.
27. Learned Advocates for the respondent State submitted that there is no ground to disbelieve the evidence of P.W. 1, P.W. 3 and also P.W. 6 on the question of identification of the appellants on the night of incident. The injured himself stated the name of the appellants before the doctor of Burdwan hospital as the assailants who injured him by hurling bomb. The reaction of the other witnesses including neighbours i.e. P.W. 4, P.W. 5, P.W. 7 and P.W. 8 are spontaneous and they rushed to house of P.W. 3 immediately after hearing sound of bomb blast and hue and cry. Their evidence is admissible under Section 6 of the Evidence Act as they came to place of occurrence immediately after incident and learnt everything from P.W. 1 and P.W. 3 and also learnt the names of the assailants. Hurling of bomb aiming at P.W. 3 and causing such grievous bodily injury to P.W. 3 is itself a fact to establish the clear intention of the appellants that bomb was thrown only for the purpose of murdering P.W. 3. It was not a flower bouquet which was thrown on P.W. 3. It was not a childish act that out of fun the bomb was hurled. Hurling of bomb and causing grievous injury to P.W.3 by such bomb injury is sufficient to attract the elements of Section 307 of the IPC. Three miscreants all in a body entered into the house of P.W. 3 and all of them shared the common intention and Meeting Sk. was trying to break open the padlock of the door with some instrument and Moslem Sk. hurled the bomb. After the incident all the three miscreants fled away and the third person could not be identified. These two appellants shared their common intention and in furtherance of their common intention they hurled bomb on P.W. 3 and caused serious injury on him. Accordingly, elements of both Sections 326 and 307 read with Section 34 of IPC were established against the appellants. They entered the house of P.W.3 at dead hours of night by scaling the boundary wall and they committed house trespass by night and caused grievous hurt to P.W. 3 and as such element of Section 458 of IPC was also established against the appellants. In support of their contention they cited the decisions reported in 1997 SCC (Cri) 600, Kalika Tiwari v. State of Bihar and : 2001CriLJ4632 , Ram Gulam Chaudhary v. State of Bihar.
28. We have carefully perused the evidence and materials on record and also considered the submissions made by the learned Advocates for the parties. Scrutinising the evidence of the eye-witnesses, post-occurrence witnesses of the village, evidence of doctors and I.O. we do not find any ground to disbelieve the evidence of the witnesses. In fact, some of the witnesses were not cross-examined seriously and from the cross-examination of the witnesses no lacuna or defect could be detected which can impair value of their evidence. The accused persons through the process of cross-examination of prosecution witnesses could not elicit anything from the witnesses which can go in their favour. Evidence of P.W. 1 and P.W. 3 clearly proves that presence of appellants in the house of P.W. 3 on the night of incident and throwing of bomb by Moslem Sk. aiming at P.W. 3 resulting into his serious injury near left shoulder and armpit. By the light of their torches they identified both the appellants and they also saw another miscreant who could not be recognised and all of them fled away after hurling the bomb. From evidence of P.W. 1 and P.W. 3 it is evident that Meeting Sk. was trying to break open the padlock with some instrument. The evidence and the circumstances clearly prove entry of both the appellants into house of P.W. 3 and Meeting Sk. and the unknown miscreant were found standing on the courtyard and Moslem Sk. was standing on the sunshade of the boundary wall. Evidence of P.W. 3 further reveals that besides barking of dog he heard someone using his name and calling him to come out uttering some filthy language. When P.W. 1 and P.W. 3 focussed their torches the bomb was hurled by Moslem Sk. which resulted into grievous injury of P.W. 3. Hurling of bomb is not a childish play and it was not done definitely out of fun. The hurling of bomb by entering into house of P.W. 3 at night by scaling the wall and calling P.W. 3 to come out clearly establishes the prior concert as well as the common intention of the appellants. Elements of Section 307/34 of the IPC have been well-established in this case against the appellants.
29. The decision in Bankat v. State of Maharashtra (supra) cited by Mr. Bhattacharya for the appellant is not applicable in this case. In the reported decision the appellant was convicted under Section 326 of the IPC which is not compoundable. Before the Supreme Court an application was filed stating that the matter has been compromised between the victim and the accused persons and considering that matter the Supreme Court in exercise of its power under Article 142 of the Constitution reduced the sentence to the period already undergone, and such power the High Court cannot exercise. The decision in State of Maharashtra v. Balram Bama Patil (supra) relating to element of Section 307 of IPC is of no help to the appellants. In that decision the Supreme Court held that it is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof and it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. In the reported case the High Court acquitted the accused persons in respect of the charge under Section 307 of IPC, but the Supreme Court after considering the evidence and injuries held that the High Court was not correct in acquitting the accused of the charge under Section 307 of IPC merely because the injuries inflicted on the victims were in the nature of simple hurt.
30. The principle of law concerning the ingredients of offence under Section 307 of the IPC, therefore, shows that intention of the accused with some overt act is the prime consideration and causing of bodily injury is not always essential. Long back in : [1962]2SCR254 , Om Parkash v. State of Punjab, the Supreme Court held that a person commits an offence under Section 307 of IPC when he has an intention to commit murder and in pursuance of that intention does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. In the aforesaid decision referred to by Mr. Bhattacharya namely, State of Maharashtra v. Balram Bama Patil (supra) the Supreme Court held that it is not necessary that a bodily injury capable of causing death should have been inflicted. It is not correct to acquit an accused of the charge under Section 307 of IPC merely because the injuries inflicted on the victim were in the nature of simple hurt. In this case before us the bomb hurled by Moslem Sk. caused injury on the person of injured Najibur Rahaman and his life could be saved after number of operations at Burdwan Hospital and bone on his armpit had to be transplanted. The entire gamut of the case including the evidence, nature of injury and the circumstances clearly establish element of Section 307 of IPC in the case.
31. Mr. Bhattacharya for the appellant placed reliance on Lallan Rai (supra) concerning element of Section 34 of IPC and submitted that Meeting Sk. cannot be held guilty under Section 307/34 well as under Section 326/34 of IPC. We are unable to agree with the views of Mr. Bhattacharya as in Lallan Rai (supra) the Supreme Court held that the essence of Section 34 is simultaneous consciousness of the mind of person participating in the criminal action to bring about a particular result. Such conscience can be developed at the spot. The requirement of the statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor. In Krishnan v. State reported in : 2003CriLJ3705 it was held by the Supreme Court that-
The dominant feature of Section 34 is the element of participation in actions. This participation need not in all cases be by physical presence. Common intention implies acting in concert. There is a pre-arranged plan which is proved either from conduct or from circumstances or from incrimination facts. The principle of joint liability in the doing of a criminal act is embodied in Section 34 of the IPC. The existence of common intention is to be the basis of liability. That is why, the prior concert and the prearranged plan is the foundation of common intention to establish liability and guilt.
32. On consideration of the entire evidence and circumstances we find that Meeting Sk. was found inside the boundary wall of the house of P.W. 3 and he was trying to break open the padlock. Then entry in the house of P.W. 3 at such dead hours of night is itself indication of their common intention and thereafter hurling of bomb by Moslem Sk. establishes that in furtherance of their common intention they injured P.W. 3. We find joint liability, preconcert mind of both the appellants and evidence and circumstances clearly prove the common intention of the appellants to cause grievous injury to P.W. 3. Merely non-participation by Meeting Sk. in hurling bomb is not a ground to lead to the conclusion that elements of Section 34 of the IPC is not attributable to him. Both the appellants in this case are guilty under Section 307/34 of IPC. We are unable to maintain the conviction and sentence of the appellants under Section 326/34 of IPC as in our opinion offence under Section 307 of IPC covers elements of Section 326 of IPC and Section 326 of IPC merges with Section 307 of IPC and no separate conviction and sentence is required under Section 326 IPC when an accused has been found guilty under Section 307 of IPC. Accordingly, we set aside the conviction and sentence of the appellants for the offence under Section 326/34 of IPC.
33. The third charge against the appellants was for committing offence under Section 458 of IPC. In order to attract elements of Section 458 of IPC there should be some evidence of lurking house-trespass as defined in Section 443 of the IPC. Section 443 of IPC prescribes as follows:
443. Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit 'lurking house-trespass'.
34. In this case from evidence we find that the boundary wall P.W. 3 was pucca and by scaling the boundary wall the accused Meeting Sk. entered inside the wall and was found standing on the area of courtyard by the side of boundary wall and the accused Moslem Sk. was standing on the sunshade near door at wall. It was not the house of the accused persons and they had no right to enter that house without the permission of house owner namely P.W. 3. At dead hours of night the accused persons entered into the house of P.W. 3 by scaling the boundary wall and thereafter one of them namely. Moslem Sk. hurled bomb against P.W. 3 resulting in his serious injury. The evidence, materials on record and circumstances clearly prove that the accused persons committed lurking house-trespass by night and also caused grievous hurt to P.W. 3 and thereby committed offence under Section 458 of IPC.
35. We are not convinced with the submission of Mr. Bhattacharya that sentence may be reduced to the period already undergone as we cannot remain oblivious of the fact that at dead hours of night these two appellants made entry into house of P.W. 3 illegally which attracted offence of lurking house-trespass by night. The appellants also caused serious injury to P.W. 3 by hurling bomb on him. The alleged offence committed by them cannot be lightly taken into consideration and sentence cannot be reduced to the period already undergone when find that Meeting Sk. was in custody for only five months.
36. The Trial Court sentenced both the appellants to suffer R.I. for eight years and to pay a fine of Rs. 2000/- each in default further R.I. for three months each for offence under Section 307/34 of IPC and sentenced them to suffer R.I. for eight years each and to pay a fine of Rs. 2000/- each in default to suffer R.I. for three months each for the offence under Section 458 of IPC. In our opinion, the sentence was harsh and we propose to reduce the sentence of the appellants. Meeting Sk. though found guilty under Section 307/34 of IPC did not throw any bomb and accordingly we reduce his sentence from eight years to three years R.I. and fine of Rs. 500/- i.d. to suffer R.I. for one month for the offence under Section 307/34 of IPC. Moslem Sk. hurled the bomb and caused severe injury to P.W. 3 and we impose sentence of R.I. for five years on him and to pay a fine of Rs. 1000/- in default R.I. for two months for the offence under Section 307/34 of IPC. In our opinion, it would meet the ends of justice if we reduce the sentence of the appellants from eight years to R.I. for two years each and the fine of Rs. 2000/- each to a fine Rs. 500/- each in default to suffer R.I. for one month each for the offence under Section 458 of IPC. Both the sentences will run concurrently. As indicated above the conviction and sentence of the appellants under Section 326/34 of IPC are set aside.
37. In view of the discussion made above the appeal succeeds in part and is allowed accordingly in part so far as it relates to sentence. In view of our discussion the appeal is disposed of as indicated above and the appellants would serve out the sentence as we have indicated in the previous paragraph.
38. The appellants who were enlarged on bail during pendency of the appeal are directed to surrender before the Trial Court within 30 days from the date of this order to serve out the sentence failing which the learned Trial Court shall take steps in accordance with law for securing their attendance before him to serve out the sentence.
39. Send down the Lower Court records along with copy of Judgment and order to the Trial Court for information and necessary action.
Later:
40. Let xerox certified copy of this order be given to the parties within two weeks from the date of making such application on payment of proper fees and charges.
P.S. Datta, J.
41. I agree