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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.