MAQSOOD Vs STATE OF U.P.
Bench: RANJAN GOGOI,N.V. RAMANA
Case number: Crl.A. No.-000207-000207 / 2011
Diary number: 21606 / 2010
Advocates: AFTAB ALI KHAN Vs
ABHISTH KUMAR
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 207 OF 2011
Maqsood & Ors. ... Appellant (s)
Versus
State of U.P. ... Respondent(s)
WITH
CRIMINAL APPEAL NO.208 OF 2011
J U D G M E N T
RANJAN GOGOI, J.
Criminal Appeal No.207 of 2011 1. Out of the 8 appellants who have filed this appeal
challenging their conviction, inter alia, under Section 325 IPC
as made by the High Court by the impugned judgment and
order dated 21.05.2010, the appellant Nos.2 and 6 (Shakeel
and Haneef) have died during the pendency of the present
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appeal. We will, therefore, be concerned with the case of the
remaining appellants before us.
2. The learned trial court had convicted the appellants
under different provisions of the Indian Penal Code including
Section 308 thereof and sentenced the accused appellants to
undergo RI for a period of 4 years under the aforesaid section
of the Code. In appeal, the High Court while maintaining the
conviction and sentence awarded for the lesser offences altered
the conviction under Section 308/149 IPC to Section 325/149
IPC. The sentence of four years RI was also reduced to a period
of one year. It is against the aforesaid order of the High Court
that the appellants have filed the present appeal.
3. We have heard Shri Siddhartha Dave learned counsel for
the appellants and Shri Ratnakar Dash, learned senior
counsel for the respondent.
4. Learned counsel for the appellants has vehemently
argued that the acts committed by the accused appellants
were in the exercise of their right of self defence inasmuch as
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the complainant party which had comprised of as many as 8
persons had come to assert their right over the Gher (open
area of land), ownership and possession of which was disputed
between the parties. On the said basis it is contended that no
offence can be attributed to the accused on account of the
overt acts committed by them, the same being in exercise of
their right of self defence. Alternatively, it is argued that if this
Court is to hold that the accused appellants are guilty of
commission of the offences in question the said offences may
be compounded and the accused may be directed to pay
compensation to the injured. Additionally, it is urged that the
provisions of Section 360 of the Cr. P.C. may be invoked and
while maintaining the conviction the accused may be released
on probation of good conduct.
5. The arguments advanced on behalf of the appellants have
been resisted by the learned counsel appearing for the State
who contends that the benefit of right of private defence would
not be available to the accused inasmuch as both parties had
come to the disputed Gher and there was a mutual altercation
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leading to a free fight between the two groups. The above is a
finding of fact recorded by the learned trial court and affirmed
by the High Court. Learned counsel for the respondent has
urged that the offence under Section 325 IPC being grave and
the sentence imposed (one year RI) by the High Court being
sufficiently lenient, in the facts of the present case, the
provisions of neither Section 320 or Section 360 Cr. P.C. ought
to be invoked.
6. We have considered the submissions advanced on behalf
of the parties. We have also looked into the evidence and
materials on record. The trial court and the High Court have
concurrently held that the injuries sustained by P.W.2
Musharraf and P.W.1 Ameer Ahmed have been caused by the
accused in the course of a mutual fight. The said finding of
fact is supported by the evidence and materials on record. This
Court, therefore, will have no occasion to arrive at any
contrary finding. What would follow from the above is that the
accused persons must be held liable for the acts committed
and the consequential injuries suffered by P.W.2. Musharraf
and P.W.1 Ameer Ahmed.
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7. We have considered the medical evidence on record
which shows that P.W.2 Musharraf, had suffered a fracture
injury which would bring the same within the expression
“grievous hurt” as appearing in Section 320 of the IPC.
Punishment for the said offence would therefore be covered by
Section 325 IPC which contemplates a period of imprisonment
upto 7 years alongwith fine. Having regard to the above, the
punishment of imprisonment of one year imposed by the High
Court, in our view, is lenient enough and, therefore, will not
justify our interference. The injured Musharraf (P.W.2) and
Ameer Ahmed (P.W.1) who are represented in the connected
appeal (Criminal Appeal No.208 of 2011) are not willing to
compound the offence in question. It is also our considered
view that the present case is devoid of any special
circumstance which would justify invocation of the provisions
of Section 320 of the Criminal Procedure Code or the release of
accused appellants on probation by invoking the provisions of
Section 360 Cr. P.C.
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8. For the aforesaid reasons, we find no merit in this
appeal. Consequently the same is dismissed and the order of
the High Court is affirmed.
Criminal Appeal No.208 of 2011 –
9. This appeal is filed by the State against the alteration of
the conviction of the accused respondents under Section
302/149 IPC to Section 304 Part II read with Section 149 IPC
as well as the reduction of the sentence of life imprisonment to
the period of custody undergone by the accused which is
about 2 ½ years. There are certain other offences under the
Code for which the accused respondents have been found
guilty and have been accordingly convicted and sentenced.
However, the same would not be very significant and it is the
conviction under Section 304 Part II and the sentence imposed
which may be treated as the principal offence.
10. Shri Ratnakar Dash, learned Counsel for the appellant,
has argued that the State would truncate the scope of the
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present appeal and not question the correctness of the
alteration of the conviction from Section 302 IPC read with
Section 149 to Section 304 Part II/149 of the IPC. It is urged
that the only question, therefore, would be the correctness of
the sentence imposed on the accused respondents (period
already undergone) following the alteration of their conviction
to Section 304 Part II of the IPC. Shri Dash has submitted
that the accused respondent had undergone custody for a
period of about 2 ½ years and as the maximum sentence
imposable under Section 304 Part II is 10 years the sentence
awarded in the present case is grossly inadequate.
11. For the purpose of deciding the above contention
advanced on behalf of the State it is not necessary for us to
enter into a detailed discussion on the nature of the
sentencing power and the principles governing its exercise as
also the parameters for interference in the case of
inappropriate sentencing. All that would be required to be
noticed is that, though not specifically mentioned in the order
of the High Court, the incident had occurred in the year 1997
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and that death had occurred in the course of a mutual fight.
The party of the complainant had also been tried for injuries
caused to some of the present accused and have been found
guilty and convicted under Section 325 IPC which conviction
and the sentence imposed (One year RI) has been challenged
in the connected appeal (Criminal Appeal No.207 of 2011).
Taking into account all the said facts and the long efflux of
time that has occurred, we are of the view that no interference
with the sentence imposed by the High Court would be
justified. Accordingly, we dismiss this appeal and affirm the
order of the High Court.
..……..……......................J. (RANJAN GOGOI)
….……..…….....................J. (N.V. RAMANA)
NEW DELHI OCTOBER 9, 2015.