Mohd.Maqbool Tantray vs State Of J & K

PART-II

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 342 OF 2009

MOHD. MAQBOOL TANTRAY ..... APPELLANT

VERSUS

STATE OF J & K ..... RESPONDENT

O R D E R

1. We have heard the learned counsel for the

parties at length.

2. The appellant Mohd. Maqbool Tantray along

with 17 others was tried for offences punishable

under Sections 302/392/364 etc. of the Ranbir Penal

Code [for short 'the RPC'] and Section 3(1) of the

Terrorists and Disruptive Activities (Prevention)

Act, 1987 [hereinafter referred to as 'the TADA']

for being involved in the abduction and murder of

former MLA Mir Mustafa on the 25th March, 1990.

Eleven of the accused were discharged on the

statement made by the Public Prosecutor, three died

during the pendency of the trial and one absconded

and three were brought to trial including the

appellant. In the trial three co-accused of the Crl.A. 342 of 2009 2

appellant herein were acquitted but the court

relying on the evidence of various prosecution

witnesses and in particular on the confessional

statement given by the appellant to the SSP Mr.

A.K. Suri, convicted him for offences punishable

under Section 364 read with Section 120B of the RPC

and sentenced him to undergo rigorous imprisonment

for five years and to pay a fine of Rs. 1000/-, in

default to undergo imprisonment for six months and

under Section 3(2)(ii) of TADA to undergo rigorous

imprisonment for 14 years and to pay a fine of Rs.

5000/-, in default of payment of fine to further

undergo imprisonment for a period of one year, both

the sentences to run concurrently. The present

appeal has been filed impugning the judgment of

the trial court as the appeal under TADA lies

directly to the Supreme Court.

3. Mr. Agrawala, the learned counsel for the

appellant has not argued the matter on merits but

has pointed out that in view of the above facts

more particularly that eleven out of 18 accused had

been discharged and the two co-accused of the

appellant herein had been acquitted vide the

impugned judgment and the additional fact that the Crl.A. 342 of 2009 3

trial had continued for almost twenty years and

that the appellant had also undergone almost 11=

years of the sentence and that he had made a

confession before the SSP which showed his remorse

it was appropriate that the sentence be reduced to

that already undergone.

4. For the proposition that in a case of a

confession made by a remorseful rependant convict

some leniency in the sentence was called for the

learned counsel has placed reliance on the judgment

of this Court in Gurdeep Singh alias Deep v. State

(Delhi Admn.) (2000) 1 SCC 498. The learned

Solicitor General has, however, pointed out that

the appellant was one of the prime movers in the

incident which had led to the death of Mir Mustafa

and as Section 2 of TADA provided for a life

sentence, the appellant had already been dealt with

in a lenient way and no further latitude should be

shown to him.

5. It is indeed true that a conviction under the

TADA is a very serious matter and calls for a

deterrent punishment. At the same time, the facts

of each case cannot be ignored. We see that all Crl.A. 342 of 2009 4

the co-accused of the appellant have either been

acquitted or have not been brought to trial. We

also see from the record that the appellant has

expressed his regrets for the circumstance which

had ultimately led to the murder of Mir Mustafa.

The trial court has given a positive finding that

the appellant was only involved with the abduction

part and had nothing to do with the murder of the

MLA. We also see from the record that appellant

has undergone more than 11= years of the sentence

after facing protracted a trial spread over almost

20 years. We have also been told by Mr. Agrawal

that he had been released on bail for a period of

1= years and during this period his conduct and

behaviour had remained exemplary. We also notice

that in Gurdip Singh's case (supra) this Court

observed as under:

"25. Before concluding we would like to record our conscientious feeling for the consideration by the legislature, if it deem fit ad proper. Punishment to an accused in criminal jurisprudence is not merely to punish the wrongdoer but also to strike a warning to those who are in the same sphere of crime or to those intending to join in such crime. This punishment is also to reform such wrongdoers not to commit such offence in future. The long procedure and the arduous journey of the prosectuion to find the whole truth is achieved sometimes by turning on the accused as Crl.A. 342 of 2009 5

approvers. This is by giving incentive to an accused to speak the truth without fear of conviction. Now turning to the confessional statement, since it comes from the core of the heart through repentance, where such accused is even ready to undertake the consequential punishment under the law, it is this area which needs some encouragement to such an accused through some respite may be by reducing the period of punishment, such incentive would transform more such incoming accused to confess and speak the truth. This may help to transform an accused to reach the truth and bring to an end successfully the prosecution of the case."

6. We find that the aforesaid observations would

apply to the present case as well.

7. We, accordingly, while dismissing the appeal,

reduce the sentence from 14 years to that already

undergone.

8. The appeal stands disposed of accordingly.

..................J [HARJIT SINGH BEDI]

..................J [A.K. PATNAIK]

NEW DELHI Crl.A. 342 of 2009 6

FEBRUARY 04, 2010.

Crl.A. 342 of 2009 7

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 342 OF 2009

MOHD. MAQBOOL TANTRAY ..... APPELLANT

VERSUS

STATE OF J & K ..... RESPONDENT

O R D E R

We have heard the learned counsel for the

parties.

Vide our separate reasoned order, we have

disposed of this appeal and reduced the sentence of

the appellant from 14 years to the period already

undergone. It is stated by Mr. E.C. Agrawala, the

learned counsel for the appellant that the

appellant is presently in custody. We direct that

the appellant shall be set at liberty forthwith if

not required in connection with any other case.

The reasoned order to follow.

..................J [HARJIT SINGH BEDI]

..................J [A.K. PATNAIK] Crl.A. 342 of 2009 8

NEW DELHI FEBRUARY 04, 2010.