Ahsan vs The State Of Uttar Pradesh

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)

JUDGMENT

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 Signature Not Verified Digitally signed by ANITA MALHOTRA 21.04.2015 passed by the High Court of Judicature Date: 2017.08.29 16:53:44 IST Reason: 1 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/-

2 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

3 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

4 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.

5

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

6 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.

7

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

8 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.

9

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

10 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.

11

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

12 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

13 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

14 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

15