Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1525 of 2017 (Arising out of S.L.P.(Crl.)No. 5004 of 2015)

Ahsan         ……..Appellant(s)

VERSUS

State of U.P.         .……Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2)      This appeal is filed by one out of three accused

against  the  final  judgment  and  order  dated

21.04.2015 passed by the High Court of Judicature

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at  Allahabad  in  Criminal  Appeal  No.615  of  2008

whereby the High Court dismissed the appeal filed

by the  accused-appellant  herein  and affirmed the

judgment  11.12.2007  of  the  Additional  Sessions

Judge, Muzaffar Nagar in Sessions Trial No.746 of

2005 by which the appellant was convicted for the

offences  punishable  under  Sections  452,  307/34,

316/34 and 504 of  the  Indian  Penal  Code,  1860

(hereinafter referred to as “IPC”) and sentenced to

seven  years’  rigorous  imprisonment  with  fine  of

Rs.5000/-  under  Section  452  IPC,  in  default  of

payment of fine, to further undergo three months’

simple  imprisonment,   imprisonment  for  life  with

fine of  Rs.10,000/- under Section 307/34 IPC, in

default  of  payment of  fine,  to  further undergo six

months’  simple  imprisonment,  rigorous

imprisonment of  ten years with fine  of  Rs.5000/-

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under Section 316/34, in default of payment of fine,

to  further  undergo simple  imprisonment  for  three

months and two years rigorous imprisonment with

fine of Rs.1000/- under Section 504 IPC, in default,

to  further  undergo  simple  imprisonment  for  one

month.  All the sentences would run concurrently.    

3) Brief facts:

The  case  of  the  prosecution  is  that  on

08.10.2004  at  about  7.30  p.m.,  when  Iliyas-the

Complainant,  after having meal,  reached near the

house of Naseem-his paternal uncle, he heard noise

coming out from that house.  When Illiyas entered

the house, he saw Manshad, Kamil and Ahsan(the

appellant),  all  from the  same locality,  armed with

country  made pistols  in  their  hands,  abusing  his

cousin Istekhar @ Dholoo, Shahzad (son-in-law) and

Rukhsana, his niece with filthy language and they

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made  fires  from  their  respective  pistols  with  the

intention  of  killing  them.   The  bullet  fired  by

Manshad injured Istekhar, the bullet fired by Kamil

caused injury to Rukhsana on her abdomen, who

was  pregnant  and  the  bullet  fired  by

Ahsan(appellant)  injured Shahzad in his head.  All

of  them were in critical state.   The incidence was

witnessed  by  Khurshid,  Shamshad,  Ikram  etc.

Illiyas  had  given  the  ‘written  report’  at  Police

Station,  Shamli  after  getting  it  written  by

Bhupendra Singh.

4) On the basis of the written report submitted by

Illiyas  on  08.10.2004  at  20.45  hrs.,  F.I.R.  case

Crime  No.  313  of  2004  was  registered  under

Sections  452,  307  and  504 IPC at  Police  Station

Shamli, District Muzaffar Nagar.  On the same day,

the  investigation  was  conducted  by  sub-Inspector

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Vijendra Singh.  The site plan was prepared and the

statements  of  the  witnesses  were  recorded  under

Section  161  of  the  Code  of  Criminal  Procedure,

1973 (hereinafter  referred to  as “the  Code”).   The

charge-sheet was filed against Manshad and Ahsan

for  the  offences  punishable  under  Sections  452,

307, 316 and 504 IPC.  The case was committed to

the Court of Sessions for trial on 18.05.2005.  

5) The  trial  was  proceeded  as  S.T.  No.  746  of

2005  in  the  Court  of  Additional  Sessions  Judge,

Mazaffar  Nagar.   During  the  pendency  of  the

investigation,  Kamil  died  and  Manshad  was

declared as ‘juvenile’ to be tried separately.  Ahsan

(appellant  herein)  was  charged  for  the  offences

under  Sections  452,  307/34,  504 and  316/34 of

IPC.

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6) By judgment dated 11.12.2007, the Trial Court

convicted the appellant for the offences punishable

under Sections 452, 307/34, 316/34 and 504 IPC

and  sentenced  him  seven  years’  rigorous

imprisonment with fine of Rs.5000/- under Section

452 IPC, in default  of  payment of  fine,  to further

undergo  three  months’  simple  imprisonment,

imprisonment for life with fine of Rs.10,000/- under

Section 307/34 IPC, in default of payment of fine, to

further undergo six months’ simple imprisonment,

ten  years’  rigorous  imprisonment  with  fine  of

Rs.5000/- under Section 316/34 IPC, in default of

payment  of  fine,  to  further  undergo  simple

imprisonment  for  three  months  and  two  years’

rigorous imprisonment with fine of Rs.1000/- under

Section 504 IPC, in default of  payment of  fine, to

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further  undergo  simple  imprisonment  for  one

month.  All the sentences would run concurrently.   

7) Aggrieved by the judgment of the Trial Court,

the accused filed an appeal being Criminal Appeal

No.615 of 2008 before the High Court.   

8) By judgment dated 21.04.2015, the High Court

dismissed  the  appeal  filed  by  the  accused  and

upheld  the  judgment  of  conviction  and  sentence

passed by the Trial Court.

9) Against  the  said  judgment,  the  accused  has

filed this appeal by way of special leave before this

Court.

10)    This  Court,  on  09.07.2005,  issued  limited

notice on the SLP as well as on the prayer for bail

with respect to quantum of sentence.  

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11) In the light of limited notice issued, the only

question which is involved in this appeal is whether

any  case  for  interference  in  the  quantum  of

sentence awarded to the appellant is made out.  So

far as the merits of the case is concerned, it is not

necessary for us to examine because the conviction

of  the  appellant  in  relation  to  all  the  offences

detailed  in  para  2  are  already  affirmed  by  this

Court’s order dated 09.07.2005.  

12) Heard Mr. Ajit Singh Pundir, learned counsel

for  the  appellant  (accused)  and  Mr.  Ashutosh

Kumar  Sharma,  learned  counsel  for  the

respondent-State.

13) Learned Counsel  for  the  appellant  (accused),

while confining his submission to the legality and

correctness of the quantum of sentence contended

that both the Courts below erred in awarding “life

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imprisonment" to the appellant insofar as it relates

to an offence punishable under Section 307 of IPC.  

14) It was his submission that the fact that victim-

Shahjad, to whom the appellant caused the injury

by  gunshot  having  survived,  the  Courts  below

should  have  taken  into  account  this  fact  and

awarded  the  sentence  in  the  first  part  of  Section

307 IPC, which could extend only up to 10 years

and fine.  

15) It  was  also  urged  that  the  appellant  has

already undergone custody around 10 to 12 years

till date and hence it would be just and proper and

in the interest of  justice to reduce the appellant’s

sentence already undergone and he be set at liberty

by upholding his conviction.  

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16) In  reply,  learned  counsel  for  the  respondent

supported the impugned order and contended that

it does not call for any interference.

17) Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case and

the written submissions filed by the learned counsel

for  the  appellant,  we  are  inclined  to  dismiss  the

appeal finding no merit therein.     

18) Section 307 IPC with which we are concerned

in this matter reads as under:

“307.  Attempt to murder- Whoever does any act  with  such  intention  or  knowledge,  and under such circumstances that, if he by that act  caused  death,  he  would  be  guilty  of murder, shall be punished with imprisonment of  either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

Attempts  by  life  convicts-When  any  person offending  under  this  section  is  under

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sentence of imprisonment for life, he may, if hurt is caused, be punished with death.”

19) Section  307  provides  three  punishments  for

three classes of  nature of  the cases. One class of

cases,  which  falls  in  first  part  of  the  Section,

prescribes a term “which may extend to ten years

and fine”, second class of cases, which falls in the

second  part  of  the  Section,  prescribes  either

“imprisonment for life" or "such punishment, which

is  prescribed in  first  part"  and the  third  class  of

cases is when any person offending under Section

307 IPC is under sentence of imprisonment for life,

causes hurt, be punished with “death”.

20) So far  as the punishment prescribed in first

part of  the Section is concerned, it  applies to the

cases where a person does any act with an intention

or knowledge and under any circumstances, caused

death.  

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21) So far as the punishment prescribed in second

part is concerned, it applies to the cases where the

person while committing the act falling in first part,

causes "hurt" to any person.  

22) Here,  we  are  concerned  with  class  of  cases

falling under part one and two.   

23) In  our  view,  the  two  Courts  below  did  not

commit  any  error  in  exercising  their  judicial

discretion in the light of  facts found proved while

awarding life imprisonment to the appellant.  

24) It is for the reasons that firstly, the facts of the

case squarely fall in the second part of Section 307

IPC;   secondly,  gunshot  injury  caused  by  the

appellant  to  the  victim-Shahjad  was  grievous   in

nature, thirdly, the bullet injury was caused in the

head which was the  most delicate and vital part of

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the body; fourthly, the facts of the case satisfied the

ingredients  of  the  first  part  of  Section  307  IPC,

namely,  all  the three accused which included the

appellant had gone to the house of victim-Shahjad

with  a  common  intention  to  kill  the  members  of

family  and  in  order  to  accomplish  the  intention,

each  accused  targeted  one  member  of  the  family

present in the room which resulted in death of  a

stillborn child of Rukhsana, who was hit by gunshot

in  her  abdomen and other  two members  suffered

serious gunshot injuries though both survived.

25) In our opinion, while sentencing the accused,

the Court is required to take into account several

factors arising in the case,  such as the nature of

offence  committed,  the  manner  in  which  it  was

committed,  its  gravity,  the  motive  behind  the

commission  of  the  offence,  nature  of  injuries

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sustained  by  the  victim,  whether  the  injuries

sustained  were  simple  or  grievous  in  nature,

weapons used for  commission of  offence  and any

other extenuating circumstances if any.  Once these

factors are considered while imposing the sentence,

there remains little scope to interfere in quantum of

punishment.  Such is the case here.

26) Learned  counsel  for  the  appellant  placed

reliance on the decision of this Court in Sanjay vs.

State of Uttar Pradesh, 2016(3) SCC 62. On going

through the same, we find it distinguishable on the

facts.  In that case on appreciating the findings, this

Court altered the conviction from Section 302 IPC to

304 Part I IPC. Such is not the case here.

27) We  thus  find  no  good  ground  to  alter  the

punishment awarded by the Sessions Court, which

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on the facts found proved, was rightly affirmed by

the High Court.

28) In the light of foregoing discussion, we find no

merit  in  the  appeal  which  thus  fails  and  is

accordingly dismissed.      

………..................................J.           [R.K. AGRAWAL]

                                .……...................................J.           [ABHAY MANOHAR SAPRE]

New Delhi, August 29, 2017

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