( 1 ) BEING aggrieved by the judgment dated 14/7/1990 passed by additional Sessions Judge, Bhopal in S. T. No. 119/85 convicting the appellants under section 307/34 IPC and directing to each of them for five years RI with fine of Rs. 2,000. 00, in default, for further six months RI the appellants have preferred this appeal under section 374 (2) of Cr. P. C. ( 2 ) THE facts giving rise to this appeal are that on dated 12/4/1985 at about 9. 30 p. m. when one of the victims Ashok Kumar was sitting in front of his shop situated near Post office at Bairagarh, the appellants came there abusing him with filthy and obscene languages appellants No. 1 Ramesh and No. 3 Ashok took out knives from their pocket while appellant No. 2 Reva Chand by means of sward assaulted the victim Ashok and caused injuries. When his brother Lachchhu came to rescue him, then he was also subjected to injury by the aforesaid means. The incident was reported to P. S. Bairagarh on registration of the offence both the injured were sent to hospital where on medical examination their MLC reports were prepared. Appellants were arrested and aforesaid implements were seized from them. On completion of the investigation the appellants were charge sheeted under Sections 307, 324 and 34 of IPC read with Section 25 of Arms Act. ( 3 ) THE case was committed to the Sessions court where charge under Section 307/34 of IPC was framed against the appellants. The same was denied by them on which the trial was held, in which the prosecution has examined as many as 8 witnesses while two witnesses were examined on behalf of the appellants in their defence. On concluding the trial the appellants were held guilty and sentenced, as said above. Hence this appeal. ( 4 ) THIS case argued twice. At the first occasion it was argued by learned counsel for the appellant Shri Satyendra Patel on 28-3-2006 then it was reserved for judgment. Subsequent to it, an application I. A. No. 3793/06 was filed on 17-4-2006 for granting permission to argue the same on some more points by Shri Manish Datta learned counsel for appellants. The same was allowed on 21/4/2006 and the counsel was permitted to advance further arguments then he took time. Subsequent to it, an application I. A. No. 3793/06 was filed on 17-4-2006 for granting permission to argue the same on some more points by Shri Manish Datta learned counsel for appellants. The same was allowed on 21/4/2006 and the counsel was permitted to advance further arguments then he took time. Thereafter on 28/6/2006 Shri S. C. Datt, the Senior Advocate advanced some arguments and again took adjournment and wind up his arguments on 2/5/2006 (sic ). ( 5 ) AFTER granting the aforesaid permission, IA No. 4276. 06 for granting permission to compromise and IA No. 3793/06 for recording compromise were submitted at the instance of victim Laxman alias Lachchhu. The same were considered vide order dated 28-4-2006 with a direction that it's impact of the same shall be considered at the time of giving findings in the judgment as the offence in which the appellants have been convicted was not compoundable. ( 6 ) SUBSEQUENT to it, I. A. No. 4408/06 for granting permission for compromise and I. A. No. 4407/06 for recording compromise were filed at the instance of the legal representatives of the victim late Ashok Ashwani. The same were also directed in the aforesaid manner. Hence during course of this judgment, these applications are to be considered. ( 7 ) THE learned Senior Counsel Shri S. C. Datt assisted by Shri Manish Datt and Shri manoj Kumar Pandey for the appellants has submitted that the alleged offence has not been proved beyond reasonable doubt against either of the appellants by any admissible and reliable evidence. The victim ashok Kumar was himself under the influence of liquor so the possibility of getting injured in some other incident could not be ruled out. The story put forth by the prosecution against the appellants has not been proved by any independent source of evidence and whosoever witnesses have been examined, their depositions are inconsistent to each other even they are not certain regarding the place of incident. Besides this there are material contradictions and omissions in between their depositions and the case diary statements. In this regard he has also referred the depositions as well as their case diary statements. According to him, these favourable material aspects to the appellants have not been considered in accordance with law and the benefit of the same was not given to the appellants. In this regard he has also referred the depositions as well as their case diary statements. According to him, these favourable material aspects to the appellants have not been considered in accordance with law and the benefit of the same was not given to the appellants. ( 8 ) HE further says that as per testimony of Ashok Kumar victim he sustained fatal injuries by the blows of knives caused by appellant No. 1 and 3 namely by Ramesh and Ashok Kumar while appellant No. 2 Reva chand came to the place of incident latter. In such circumstance. Section 34 of IPC was wrongly invoked. In fact, in the circumstance of the case common intention has not been proved as no act was committed by either of the appellant in furtherance of the act of other appellants. It was also submitted that there was enmity in between the victim ashok Kumar and the appellants regarding some money transaction the same was admitted by said victim in his deposition. So possibility regarding false implication could not be ruled out. ( 9 ) HE also assailed the judgment on account of the nature of injuries sustained by the victims. According to him, the alleged injuries or any of the injuries sustained by the victims was not sufficient to cause death in ordinary course of nature. He also referred the deposition of Doctor and concerning mlc reports and submitted that the case was not covered u/s. 307 of IPC. The case was covered only under Section 324 of IPC or in any case it was not more than u/s. 0326 of IPC and said that on holding guilty to the appellants regarding the alleged incident their conviction be modified from 307 to 324 or 326 of the IPC. By assuming the position of modification he said that appellants have already suffered the jail sentence for some days after the conviction, till passing the order for suspension of their sentences by this Court. Hence, firstly he submitted that in case the case is found u/s. 324 of IPC then compromise applications be considered and in alternate the benefit of probation of Offenders Act be extended to them as they had no criminal history or antecedents either before this case or subsequent to it. Hence, firstly he submitted that in case the case is found u/s. 324 of IPC then compromise applications be considered and in alternate the benefit of probation of Offenders Act be extended to them as they had no criminal history or antecedents either before this case or subsequent to it. Considering the present position that they have settled in their lives and they are only person in their family to look after all the affairs. In any case by adopting some lenient view, their jail sentences be reduced up to the period for which they have suffered in jail by enhancing some amount of fine as per discretion of the Court. ( 10 ) HE fairly conceded that if offence is found u/s. 307 of the IPC then as per provision of Section 320 of Cr. P. C. ,the offence cannot be compounded in any manner either with the permission of the Court or without permission. But, the factum of compromise and its impact in order to maintain the harmony in between the parties can be considered by adopting lenient view for remitting the jail sentence of the appellants instead to send them again for facing remaining sentence and prayed for lenient consideration in this regard by allowing the appeal accordingly. He also placed his reliance on some case laws the same shall be considered at the appropriate stage of the judgment. ( 11 ) WHILE on other hand learned Govt. Adv. Shri Prarnod Choubey for the State by responding the aforesaid arguments has submitted that the case of the prosecution has been proved by cogent, admissible and reliable evidence. The appellants are convicted on sound appreciation of the evidence hence the impugned judgment do not require any interference at this stage either for acquittal or for modification the offence of lesser punishment. The appellants are also not entitled for extending the benefit of Probation or reducing their jail sentence on account of any submission as advanced on behalf of appellants (sic) the compromise cannot be considered in view of the provision of section 320 of Cr. P. C. As the offence u/s. 307 IPC is not made compoundable and prayed for dismissal of this appeal. ( 12 ) HAVING heard the learned counsel I have gone through the record of the trial court. As per FIR (Ex. P. 1) the incident took place at around 9. P. C. As the offence u/s. 307 IPC is not made compoundable and prayed for dismissal of this appeal. ( 12 ) HAVING heard the learned counsel I have gone through the record of the trial court. As per FIR (Ex. P. 1) the incident took place at around 9. 30 p. m. in the night and fir was lodged by victim Ashok (P. W. 2) at 9. 40 p. m. i. e. just after 10 minutes of the incident. As per averments of it, appellants no. 1 Ramesh and No. 3 Ashok gave to victim ashok the blows of knives while No. 2 reva Chand gave the blow of sword. So, all appellants were having deadly weapons in their hands. The intention of the appellants is apparent from the averments of FIR when appellants caused injuries to victim Ashok kumar (P. W. 2 ). On which he sustained the injuries in the left side of his abdomen with bleeding along with some other part of the body then his brother Lachchhu (P. W. 3)came to rescue him then he was also caused the blows of said implements by the appel lants, he also sustained injuries on his buttock and other part of the body. The previous enmity relating to some money transaction was also apparent. The FIR lodged without any delay mentioning the name of eye-witnesses. ( 13 ) THE version of the FIR Ex. P/l has been proved by Ashok Kumar (P. W. 2) he stated the entire story put forth in it. The fir has been proved by G. P. Shakya (P. W. 1), the scriber who recorded the same. On examining the depositions of both the witnesses i have not found any adverse things in their cross-examination to disbelieve them. ( 14 ) THE victim Ashok Kumar (P. W. 2) has categorically stated in his deposition that he was assaulted by appellants No. 1 and 3 ramesh and Ashok with the blows of knives while with sword by appellant No. 2 revachand. Resultantly he sustained injuries. On his shouting the brother Laxman @ lachchhu (P. W. 3) came to rescue him then he was also assaulted by the aforesaid means. He also sustained injuries. He also explained the part of the body where he sustained injuries. Resultantly he sustained injuries. On his shouting the brother Laxman @ lachchhu (P. W. 3) came to rescue him then he was also assaulted by the aforesaid means. He also sustained injuries. He also explained the part of the body where he sustained injuries. The other victim Laxman @ Lachchhu (P. W. 3) has supported the version of said Ashok Kumar (P. W. 1) and about his injuries. According to him, these injuries have been caused by appellants. He stated that Ashok sustained the injuries on left side of his abdomen with bleedings and this witness sustained injuries on his buttock, face and hand by the aforesaid means. On his shouting the other persons of vicinity also came there and took them to police station and hospital. The independent witnesses ramkumar (P. W. 4), and Shrichand (P. W. 5) have supported the story put forth by the said victims. Even on going through the cross-examination of the aforesaid witnesses i have not found any material circumstance on account of which either of the aforesaid witnesses can be disbelieved. I have also not found any circumstance on which it can be said that any of the witness was concocted or stated any false story. 0 ( 15 ) THE version of the aforesaid witnesses are also corroborated by the MLC reports, prepared by the Doctors, immediately after the incident on reaching the victims to the hospital which is evident by Ex. P/13 the mlc report of victim Ashok and Ex. P/12 the MLC report of victim Laxman @ lachchhu. Accordingly by corresponding injuries it has been proved. Hence, the trial court has not committed any error in holding guilty to the appellants for the aforesaid alleged incident. Hence the findings of the trial Court in this regard are hereby affirmed. ( 16 ) CORNING to the question of nature of injuries sustained by the victim Ashok was examined by Dr. S. N. Benarjee (P. W. 8) who filed his MLC report Ex. P/13. According to it, multiple incised wounds found on his person after preparing the pre MLC was referred to Dr. in the R. S. O. of such hospital. Who again examined to this victim and prepared report Ex. P. 15. According to Ex. S. N. Benarjee (P. W. 8) who filed his MLC report Ex. P/13. According to it, multiple incised wounds found on his person after preparing the pre MLC was referred to Dr. in the R. S. O. of such hospital. Who again examined to this victim and prepared report Ex. P. 15. According to Ex. P. 15, he found the following injuries on the person of Ashok : (A) One incised wound on left side of the chest below the ribs size 1" x 3/4". (B) Vertical incised wound left side above waist in abdomen. (C) One oblique incised wound on abdomen in between abdomen and chest. (D) one vertical superficial wound at centre of thigh. (E) Oblique incised wound towards back side of the ear. (F) Incised wound just below right eye 5 cm. (G) Abrasion below left eye. (H) One sharp incised wound on right side above ribs it was going towards Amlie (Doothi ). (I) One incised wound on left hand in the joint of finger. ( 17 ) THE aforesaid injuries are mentioned in Ex. P/15 and the same was stated by said doctor S. N. Benarjee (P. W. 8) as he was working with Dr. Nartan and has also referred the case to him and on non-availability of the dr. Nartan, the same Ex. P/15 was proved by him. He also opined that the injury No. 1 being incised wound was fatal in nature, the same was operated and the spleen of the victim was removed. It is notable that the rupture of spleen or it's removal is sufficient to cause; the death of the victim in ordinary course of the nature. ( 18 ) SO far injuries sustained by Laxman is concerned, he was initially examined by said Dr. S. N. Banarjee and Ex. P/12 MLC was prepared thereafter by Ex. P/12 he was referred to Dr. Anil Nartan RSO of such hamidiya Hospital who prepared his report ex. P/14 the same was proved by Dr. S. N. Benarjee (P. W. 8) as Dr. Anil Nartan was not available at trial as said above. According to it the following injuries were found by him on the person of Laxman : (A) One incised wound size 1/2 cm. x 1 cm. x skin deep on right buttock. (B) One incised wound 6 cm. x 1 cm. on left buttock. Anil Nartan was not available at trial as said above. According to it the following injuries were found by him on the person of Laxman : (A) One incised wound size 1/2 cm. x 1 cm. x skin deep on right buttock. (B) One incised wound 6 cm. x 1 cm. on left buttock. (C) One oblique wound on the left hand on surface of ulna size 6 cm. x 1 cm. (D) Incised wound oblique below 6 cm. from left rib and also below the abdomen size 1 cm. x 1/2 cm. (E) Incised wound on left side forehead size 1/2 cm. x 1/4 cm. (F) Incised wound horizontal 2 cm. x 1 cm. on Jaw. (G) horizontal incised injury 2 cm. x 1 cm. just left side below 2 cm. from the jaw. (H) vertical incised wound on left eye brow at the centre of head towards 5 cm. As per opinion all injuries were simple in nature caused by hard and sharp object within 24 hrs. from the examination. ( 19 ) LEARNED counsel for the appellants took an objection that MLC report Ex. P/14 and P/15 prepared by Dr. Anil Nortan could not be considered for any purpose on account of his non-examination as prosecution witness. It is true that Dr. Nartan was not examined but on going through the proceedings it appears that long back he had left Bhopal hence at the stage of recording evidence he could not be examined by the prosecution but such reports were proved by Dr. S. N. Benarjee who was working with him and referred the victims to him after preparing the pre MLC report Ex. P/12 and ex. P/13, he was acquainted with the signature and handwriting of said Dr. Nartan and on his non-availability by sufficient explanation the aforesaid reports have been proved. Even In cross-examination of Doctor banarjee the version stated by him as per his MLC reports Ex. P/12 and Ex. P/13, have not been challenged and in the circumstances it is apparent that the version of Ex. P/14 and Ex. P/15 have also not been challenged on behalf of the appellants. Besides this on comparing the injuries sustained by the victims from Ex. P/12 and Ex. P/13 with ex. P/14 and Ex. P/15 it appears that Ex. P/14 and Ex. P/15 were prepared in continuation pre MLC report. P/14 and Ex. P/15 have also not been challenged on behalf of the appellants. Besides this on comparing the injuries sustained by the victims from Ex. P/12 and Ex. P/13 with ex. P/14 and Ex. P/15 it appears that Ex. P/14 and Ex. P/15 were prepared in continuation pre MLC report. Hence, the trial court has not committed any error in relying such report prepared by Dr. Morten and even on non-examination of Dr. Mortin does not give any benefit to the appellants. ( 20 ) ON going through the entire evidence i have not found any fact on record showing that Dr. Nartan had any enmity with the appellants so he could have prepared the false report. In the absence of any enmity of the Doctor with the appellants his report remains reliable and admissible. Soinjuries sustained by the aforesaid victims have been proved beyond reasonable doubt by medical evidence also. ( 21 ) NOW, the Court will have to consider the nature of injuries in view of deposition of Doctor and aforesaid medical reports. It has been held in foregoing paras that injury no. 1 sustained by the victim Ashok Kumar in abdomen for which he was operated and his spleen was found injured due to this it was removed. Except this injury all other injuries sustained by this victim were simple in nature. ( 22 ) AS per counsel for the appellants Dr. Nartan has opined as per Ex. P/15, that the injury of spleen was dangerous to life so it cannot be treated as fatal or sufficient to cause death of the victim in ordinary course of nature and the case was fully covered under S. 326 of the IPC. According to him even on removing the spleen, person cannot die he also placed his reliance on a decided case in the matter of Nahadariva v. State of M. P. reported in 1980 JLJ 501 : (1979 Cri LJ NOC 19 (MP)) and submitted that in the absence of the statement of Doctor martin no inference regarding nature of injuries could be drawn. On perusing such case, this Court has no dispute regarding principle laid down in it but in the present case Dr. S. N. Benarjee (P. W. 8) has proved all medical reports and nature of injuries sustained by the victim hence this citation is not helping to the appellants. On perusing such case, this Court has no dispute regarding principle laid down in it but in the present case Dr. S. N. Benarjee (P. W. 8) has proved all medical reports and nature of injuries sustained by the victim hence this citation is not helping to the appellants. ( 23 ) I am of the considered view that the spleen is a vital and important organ of the body and if it is ruptured or damaged then it is sufficient to cause death of victim in the ordinary course of nature. The same is covered by earlier part of Section 300 of IPC and, therefore, the trial Court has not committed any error in holding guilty to the appellants under S. 307 of the IPC as the victim was survived on account of treatment within time. Hence, findings of trial Court in this regard are hereby affirmed. ( 24 ) SO far invoking the Section 34 of IPC is concerned, it is apparent that appellant no. 1 Ramesh and appellant No. 3-Ashok went to the spot with knives while appellant no. 2 Revachand with sword the deadly weapons and having their intention to cause fatal injuries to the victim therefore common intention of the appellants have been established on record. Therefore on sustaining fatal injury to the Ashok (P. W. 2) (sic ). All the appellants are liable for such offence as it was committed in furtherance of their common intention. Thus, the trial Court has not committed any error in holding the same, hence the same is hereby affirmed. ( 25 ) COMING to the question of extending the benefit of Probation of Offenders Act the legislature has prescribed life imprisonment as maximum punishment for the offence u/ s. 307 of IPC. Hence as per provisions relating to Probation of Offenders Act such benefit could not be extended to them as they have been found guilty u/s. 307/34 of ipc. Even otherwise the alleged offence was committed by the appellants against State and the manner in which it was committed in open market, they cannot be extended such benefit otherwise it will give a wrong message to the society at large hence submission of the appellants' counsel in this regard is hereby failed. Even otherwise the alleged offence was committed by the appellants against State and the manner in which it was committed in open market, they cannot be extended such benefit otherwise it will give a wrong message to the society at large hence submission of the appellants' counsel in this regard is hereby failed. ( 26 ) COMING to the question of consideration the impact of IA No. 4276/06, IA No. 4277/06, IA No. 4407/06 and I. A. No. 4408/ 06 the applications either for permission to compound the offence or recording the compromise. That earlier two applications were verified by the victim Laxman on dated 24/ 4/2006 and he voluntarily accepted the averments of compromise mentioned in it. While other two applications were filed on behalf of three legal representatives of deceased victim Ashok, namely Smt. Madhu Devi ashwani, his wife and, Sanjay Ashwani and deepak Ashwani, his sons but on 2/5/2006 on verification his wife Smt. Madhu Devi and younger son Deepak Ashwani were not present so it was verified from only Sanjay who accepted the aforesaid averments of i. As. So far other two legal representatives are concerned, they have not come to Court for giving their consent for compromise hence all the legal representatives of the deceased Ashok for whose fatal injuries the appellants were found guilty have not consented the alleged compromise. Therefore firstly this compromise in the absence of all legal representatives of victim Ashok cannot be considered by adopting the lenient view. Even otherwise as per table A and B of section 320, Cr. P. C. the offence u/s. 307 of ipc is not made compoundable either with the permission or without permission and repeatedly Apex Court has given the verdict when the matter was not compoundable under the law then the same cannot be compounded. ( 27 ) ALTHOUGH on behalf of the appellants decided case of the Apex Court in the matter of Mahesh Chand v. State of Rajasthan, reported in AIR 1988 SC 2111 : (1989 Cri lj 121) was cited in which in the peculiar facts and circumstances considering the factum of compromise in a counter case. The special permission was granted and the compromise was accepted on certain terms and conditions which are not the situation here in the case at hand. The special permission was granted and the compromise was accepted on certain terms and conditions which are not the situation here in the case at hand. ( 28 ) THE offences in which the compromise with or without permission of the Court are not provided under the law. In such matter the compromise cannot be accepted or allowed such principle was laid down in the matter of Bankat v. State of Maharashtra, reported in (2005) 1 SCC 343 : (2005 Cri LJ 646) in which it is held as under :"11. In our view, the submission of the learned counsel for the respondent requires o be accepted. For compounding of the offences punishable under IPC, a complete scheme is provided under Section 320 of the code. Sub-section (1) of Section 320 provides that the offences mentioned in the tablt provided thereunder can be compounded by the persons mentioned in column 3 of the said table. Further, sub-section (2) provides that the offences mentioned in the table could be compounded by the victim with the permission of the Court. As against this sub-section (9) specifically provides that "no offence shall be compounded except as provided by this section". In view of the aforesaid legislative mandate, only the offences which are covered by Table 1 or table 2 as stated above can be compounded and the rest of the offences punishable under ipc could not be compounded. "in the aforesaid circumstances in the lack of any provision under the law this Court has no option except to dismiss the aforesaid all applications. Hence the same are hereby dismissed. ( 29 ) THE learned counsel for the appellants have also cited a case law for adopting the lenient view in giving the sentence to the appellants. He has cited a case law in the matter of Jai Narain Mishra v. The State of Bihar, reported in AIR 1972 SC 1764 : (1972 Cri LJ 469 ). Considering the nature of injury the case was converted from Section 307, ipc to Section 326 of IPC but in the present case, looking to the nature of injuries the same is not applicable. Considering the nature of injury the case was converted from Section 307, ipc to Section 326 of IPC but in the present case, looking to the nature of injuries the same is not applicable. He also cited a decision of the Apex Court in the matter of Parshora Singh v. State of Punjab, reported in AIR 1993 SC 1256 : (1993 Cri lj 1053) which was related to the head injury in which no vital organ was removed from the body on account of injuries and on such consideration the connection was converted from 307 to 326 of IPC. But in the present circumstances the same is not applicable. He also cited an unreported case of the Apex Court in the matter of Ganga singh v. State of Madhya Pradesh decided in Criminal Appeal No. 80 of 1986 In SLP no. 3160/85 that case was also decided on section 326 of IPC, not u/s. 307 of IPC thus the same is also not applicable to the case at hand. Although, so far the principles laid down in the aforesaid cases are concerned this Court has no dispute if the matter and conviction is related to Section 326 of IPC. ( 30 ) IN view of the aforesaid, I have not found any perversity, illegality infirmity or inconsistency either in appreciation of the evidence or in applying the legal propositions in the judgment of the trial Court hence the same is hereby affirmed. ( 31 ) IN view of the aforesaid premises this appeal has no merits resulting the same is dismissed. ( 32 ) HOWEVER considering the circumstances that appellants had faced the trial and facing mental and physical pain since last 21 years therefore considering the prayer of the appellants for reducing their jail sentence till some extent I deem fit to reduce their jail sentence by enhancing some amount of fine with provision to give some part of it to family of deceased victim Ashok. Hence the jail sentence of the appellants is hereby reduced from. 5 years RI to two years ri by enhancing the fine from Rs. 2000. 00 to rs. 7,000. 00 against each of the appellants in default the appellants have or concerning appellant has to suffer further Six months RI. On depositing such fine amount out of it Rs. 10,000. Hence the jail sentence of the appellants is hereby reduced from. 5 years RI to two years ri by enhancing the fine from Rs. 2000. 00 to rs. 7,000. 00 against each of the appellants in default the appellants have or concerning appellant has to suffer further Six months RI. On depositing such fine amount out of it Rs. 10,000. 00 be given to the legal representatives of victim Ashok by calling them through summons. Appellants are directed to surrender themselves within 30 days from today for facing the aforesaid jail sentence. Appeal is dismissed. .