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NON REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.   1105   of 2015

(@ SLP(Crl.) No.7451 of 2014)

Fireman Ghulam Mustafa ..   Appellant(s)  versus

State of Uttaranchal  (Now Uttarakhand)       ..   Respondent(s)

With CRIMINAL APPEAL NO. 1106  of 2015

(@ SLP(Crl.) No.6249 of 2014)

J U D G M E N T

C. NAGAPPAN, J.

1. Leave granted.  

2. These  two  appeals   are  preferred  against  the

common judgment dated 2.4.2014 of the High Court of

Uttarakhand at Nainital,  in Criminal Appeal No. 68 of

2003 and Criminal Appeal No. 96 of 2003.

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3. Both the appellants were accused nos. 1 and 2 in

S. T. No. 80 of 1998  on the file of Additional Sessions

Judge (Fast Track Court)  Almora and they were tried for

the offences under Section 307 and 452 of Indian Penal

Code.   The Trial  Court  found them guilty  of  both the

charges and sentenced them each to undergo 7 years

rigorous imprisonment and pay a fine of Rs. 5000/- and

in default to undergo imprisonment for six months for

the offence under Section 307 IPC and further sentenced

them each to undergo rigorous imprisonment for period

of  3  years  and pay  a  fine  of  Rs.  1000/-  with  default

sentence for the offence under Section 452 IPC.  

4. Aggrieved by the conviction and sentence both the

accused  preferred  independent  criminal  appeals  and

they were heard together and the High Court dismissed

both the appeals by the impugned judgment. The said

judgment is under challenge now.

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5. When  these  appeals  by  way  of  special  leave

petitions came up for preliminary hearing before us on

different dates, we issued notice to the Respondent-State

limited to the extent  that  instead of  conviction of  the

petitioners  under  Section  307  of  IPC,   whether  the

conviction would have been either under Section 323 or

under  Section  325  of  the  IPC.   We  have  accordingly

heard  learned  counsel  for  the  parties  on  that  limited

extent.   

6. Both  the  appellants  and  the  deceased  were

employed as Firemen at the Fire Station Headquarter,

Bageshwar.   PW1  Munnu  Lal,  Fire  Station  Officer,

resided at the distance of about 300 yards in a rented

accommodation   provided by his landlord PW2 Ratan

Singh.  On the occurrence night at about 1 a.m. three

accused,  who  were  Firemen,  came  to  his  residence,

knocked his door and PW1 Munnu Lal switched on the

light and opened the door and the accused barged in

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with  lathis  and indiscriminately  beat  him with  lathis.

PW1 Munnu Lal screamed and on hearing the cry PW2

Ratan Singh and another  tenant  came and witnessed

the occurrence and on their intervention the assailants

left the spot.  On the information given by PW2 Ratan

Singh, the SHO of local police station rushed there and

took PW1 Munnu Lal to the local government hospital.

PW3 Dr. N. D. Punetha examined PW1 Munnu Lal and

found 18 injuries including fractures of wrist bones in

both the hands.  He was shifted to District Headquarter

Hospital and thereafter to the Medical College Hospital,

Allahabad.   On the  complaint  of  landlord  PW2 Ratan

Singh,  F.I.R.  came  to  be  registered  and  after

investigation,  charge  sheet   was  filed  against  all  the

accused.   The  case  was  committed  to  sessions  and

during its pendency, one of the accused Hukam Singh

died and the charges  against  him stood abated.   The

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remaining two were tried and convicted for the offences

as stated supra.  

7. The  learned  senior  counsel  appearing  for  the

appellants  contended  that  the  overt  acts  of  the

appellants  were  committed  not  with  the  intention  to

cause death of the victim and it would not attract the

offence  under  Section  307 IPC and it  may fall  under

either Section 323 or Section 325 of  the Indian Penal

Code.  Per contra, the learned counsel appearing for the

respondent-State  contended  that  the  appellants  as  a

revenge for recording their absence from duty by PW1

Munnu Lal at the Fire Station, entered his house in the

midnight and attacked him with lathis with the intention

to  commit  murder  and  the  courts  below  have  rightly

convicted them for the offence under Section 307 IPC

and the conviction and the sentence are sustainable.

8. To justify a conviction under Section 307 IPC the

Court  has  to  see  whether  the  act  was  done  with  the

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intention to commit murder and it would depend upon

the facts and circumstances of the case.  Although the

nature of injuries caused may be of assistance in coming

to  a  finding  as  to  the intention of  the  accused,  such

intention may also be gathered from the circumstances

like the nature of weapons used, parts of the body where

the injuries were caused, severity of the blows given and

motive, etc.

9. Just before the occurrence PW1 Munnu Lal came

to the Fire Station for surprise check and recorded the

absence of the accused in the general diary and returned

home.   Within  few  minutes  the  appellants/accused

armed  with  lathis  went  to  his  house  and

indiscriminately beat him with lathis causing injuries in

neck, chest, hands, buttocks and thighs.  PW3 Dr. N.D.

Punetha mentioned in her report that injury nos.11, 17

and  18  are  grievous  in  nature.   In  fact  the  grievous

injuries  are  the  fractures  of  wrist  bones  in  both  the

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hands.    Though the injuries caused were 18 in number

they were not on vital parts of the body.  It is true that

the appellants had acted in a state of fury but it cannot

be  said  that  they  caused  those  injuries  with  the

intention to cause death.  The appellants are not liable

to be convicted for the offence under Section 307 IPC

and  at  the  same  time  for  having  voluntarily  caused

grievous  hurt  they  are  liable  to  be  punished  under

Section 325 of the Indian Penal Code.

10. Both  the  counsel  appearing  for  the  appellants

submitted that the occurrence had taken place in the

year 1998 when all the accused were in their mid 20s

and they have been dismissed from service and both the

appellants  have  undergone  about  17 months  rigorous

imprisonment and the sentence may be reduced.   

11. Considering  the  circumstances  of  the  case  and

keeping in view the age of the appellants, their family

strength, as also the fact the incident had taken place in

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the  year 1998,  custodial  sentence of  3  years rigorous

imprisonment  for  the  offence  under  Section  325  IPC

would meet the ends of justice.

12. In the result, the conviction and sentence imposed

on both the appellants for the offence under Section 307

IPC are set aside and instead they are convicted for the

offence under Section 325 IPC and sentenced to undergo

3 years rigorous imprisonment each and to pay a fine of

Rs.5000/-  each  and  in  default  to  undergo  rigorous

imprisonment  for  one  month.   The  conviction  and

sentence awarded to the appellants under Section 452 of

IPC shall  remain unaltered.  Both the sentences shall

run concurrently.  The appeals are allowed in part and

to the extent indicated above.   

                                                           ……………………….J. (M.Y. Eqbal)

.………………………J.     (C.Nagappan)

New Delhi; August 25, 2015