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Sunday, October 11, 2015

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.Shri Ratnakar Dash, learned Counsel for the appellant, has argued that the State would truncate the scope of the 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.. 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 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.

                                 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

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  appeal.
We will, therefore, be concerned with the case of the  remaining  appellants
before us.

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.


We have heard Shri Siddhartha Dave learned counsel for  the  appellants  and
Shri Ratnakar Dash, learned senior counsel for the respondent.

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 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.


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 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.

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.

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.

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  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 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.

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