Court No. - 50
Case :- CRIMINAL APPEAL No. - 810 of 2014 Appellant :- Mahruddin Respondent :- State Of U.P.
Counsel for Appellant :- S.K. Yadav,Arunesh Singh,K.K. Dwivedi,Nazrul Islam Jafri Counsel for Respondent :- Govt. Advocate,Imran Ullah,Raghubir Singh,Syed Suhail Asghar
Hon'ble Aniruddha Singh,J.
1. Heard Sri Shakeel Ahmad, learned Advocate holding brief of Sri Arunesh Singh, learned counsel and Sri S.K. Yadav, learned counsel for the appellant as well as Sri Pankaj Rai, learned Brief Holder and perused the record. Learned counsel for complainant is not present.
2. This criminal appeal has been preferred by appellant Mahruddin against judgment and order dated 15.2.2014 passed by learned Additional Sessions Judge, Court No.5, Agra in S.T. No. 935/2009(arising out of Case Crime No. 664/2009) and S.T. 936/2009 (arising out of Case Crime No. 686/2009), Police Station Tajganj, Agra whereby appellant Mahruddin was convicted under section 307 IPC and Section 25 of Arms Act and sentenced to ten year's rigorous imprisonment with fine of Rs.20,000/- and in default in payment of fine, additional two years imprisonment under section 307 IPC and two years' imprisonment with fine of Rs.2000/- and in default in payment of fine, three months' additional imprisonment under section 25 Arms Act; all sentences to run concurrently, period spent in jail be adjusted and amount of Rs.15000/- was directed to be paid to the complainant, if deposited.
3. In the nutshell, according to prosecution case, FIR was lodged by Shahina Bano wife of Ansar Khan alleging that she married with Ansar on her own free will and on 21.6.2009 when her husband was going to shop by motorcycle, Mahruddin(Behnoi of first informant) and his associate came behind on motorcycle and opened fire at Ansar Khan. He fell down after sustaining following injuries:-
1. Lacerated wound 4 x 0.5 cm on mid of forehead surrounded by multiple abrasions 8 x 3 cm, fresh bleeding present.
2. Gunshot wound of entry 1.5 x 1.0 cm on right posterior quadrant of skull just behind to the right mastoid process, Margins inverted, tattooing present in the area of 10 x 8 cm including right pinna.
3. Abrasion 5 x 5 cm on right side face(right maxillary process).
4. Abrasion 10 x 6 cm on dorsum of left hand extending to wrist.
5. Abrasion 7 x 5 cm on the knee front.
4. Case was registered and after investigation charge sheet was submitted. Charges were framed on 16.12.2009 under sections 307 and 120-B IPC and 25 Arms Act. Prosecution examined P.W.-1 Shahina Bano, P.W. 2 Ansar(injured), P.W.-3 Idris, P.W. 4 Constable/Clerk No. 194 Prem Chand, P.W.5 Dr. A.A. Khan, P.W.6 Sub Inspector Sri Dinesh Pal Singh, P.W.7 Constable No. 818 Hakim Singh, P.W.8 Sub Inspector Durgesh Kumar and P.W.9 Dr. Devendra Gupta. Statement of accused was recorded under Section 313 Cr.P.C. He pleaded not guilty and claimed for trial.
5. After hearing learned counsel for the appellant and Government Counsel for the State, impugned judgment and order was passed. Hence this appeal.
6. On the point of conviction, learned counsel for the appellant raised no argument and submitted that according to report of Jailer, District Jail, Agra dated 26.11.2018 in this case he was in jail since 27.6.2009 and released on 7.1.2010. Later on, since 14.2.2014 till date he is languishing in jail. Hence he has spent in jail for five years, five months and 18 days. The appellant is 37 years in age and a poor person. He has small children and nobody is there to look after them. There is no criminal history against the appellant and this is first offence. Hence, lenient view may be taken against him and he may be sentenced to imprisonment already undergone with fine only.
7. Learned AGA opposed on the point of conviction but on the point of sentence he submitted that lenient view may be taken.
8. According to FIR, one unknown person was also riding on motorcycle. Hence it is admitted fact that one unknown person was indulged in the crime. Later on, story was changed after thought with due legal consultation and the role of shooting was assigned to appellant only by P.W.1 Shahina Babo(first informant). According to statement of injured witness recorded under section 164 Cr.P.C. appellant Mahruddin opened fire at him who was sitting on pillion and his associate was driving the motorcycle.
9. According to FIR and statement of witnesses, role of appellant is covered under Section 120-B IPC or Section 307/34 IPC. In these, circumstances, lenient view may be taken to meet the ends of justice.
10. Learned counsel for the appellant placed reliance upon judgment of this High Court passed in Criminal Appeal No. 4283 of 2012 (Ved Pal vs. State of U.P.) decided on 27.9.2016 wherein appeal has been partly allowed on the quantum of sentence reducing from seven years' R.I to six and half years under section 307 IPC. He further placed reliance upon judgment of this High Court passed in Jail Appeal No. 4570 of 2011(Haroon vs. State) wherein the appellant was sentenced with period of detention undergone by him under sections 366 and 376 IPC and amount of fine imposed by the Trial Court under both sections. In default of payment of fine, two-two months additional imprisonment under sections 366 and 376 IPC.
11. This Court in the case of Sukhbir and others vs. State of U.P. in Criminal Appeal No. 2905 of 1980 decided on 16.9.1999 and Supreme Court in Narayansingh Nathusingh vs. Natvarlal Hiralal Thakkar and another, (1981) 4 SCC 507 have reduced the sentence to the imprisonment already undergone with fine.
12. In the case of Ved Ram and others vs. State of U.P., 2010(68) ACC 182 wherein appellants have already remained in jail for almost eight months and on being satisfied with the period of incarceration, the Court imposed additional fine of Rs.1000/- and altered conviction from under Section 307 IPC to under section 324/149 IPC.
13. Hon'ble Apex Court in the case of State of Karnataka vs. Kaisarbaig and others, (2018) 4 SCC 403 sentenced the appellants to the period of imprisonment already undergone with fine of Rs.50,000/- in addition to what has already been paid to the victim under Section 148/324/149 IPC.
14. The Division Bench of Hon'ble Supreme Court in the case of Raman Kalia and another vs. State of Gujarat, AIR 1979 SC 1261 has held that "we would, therefore, while upholding the conviction of Raman Kalia under Section 323 I.P.C. reduce the sentence to the period already served, which we understand is about a month and a half."
15. Principal of reformative theory is applicable in India. The appellant has no criminal history and has spent in jail for about 5 ½ years. Hence considering the period of detention, it would serve the justice if the appellant is sentenced to imprisonment already undergone with fine awarded by the trial Court under Section 307 IPC.
16. In above backdrop, the appeal is partly allowed on the quantum of sentence. The conviction recorded against the appellant Mahruddin vide order dated 15.2.2014 is hereby maintained and affirmed. The sentence of imprisonment awarded to the appellant Mahruddin is reduced to the period already undergone in place of 10 years' R.I. with the fine of Rs.20,000/- and in default to deposit fine, he shall undergo additional two years imprisonment under section 307 IPC. Fine shall be deposited within two months from today. Other sentences awarded by the trial Court are confirmed. No interference is being made with the sentences for rest of the offence. The sentence of imprisonment awarded for different offences shall run concurrently. The appellant shall be entitled to the benefit of Section 428 Cr.P.C.
17. Office is directed to transmit copy of this order alongwith record of lower Court to the Court below immediately. Compliance report be submitted within three months which shall be kept on record.
Order Date :- 22.1.2019 P.P.
Court No. - 50
Case :- CRIMINAL APPEAL No. - 810 of 2014 Appellant :- Mahruddin Respondent :- State Of U.P.
Counsel for Appellant :- S.K. Yadav,Arunesh Singh,K.K. Dwivedi,Nazrul Islam Jafri Counsel for Respondent :- Govt. Advocate,Imran Ullah,Raghubir Singh,Syed Suhail Asghar
Hon'ble Aniruddha Singh,J.
Second Bail Application No. 71777 of 2017 Heard Sri Shakeel Ahmad, learned Advocate holding brief of Sri Arunesh Singh, learned counsel and Sri S.K. Yadav, learned counsel for the appellant as well as Sri Pankaj Rai, learned Brief Holder and perused the record.
Learned counsel for the appellant submitted that appellant has spent about 5 ½ years and is languishing in jail.
First bail application was rejected on merit by Hon'ble Ramesh Sinha, J. vide order dated 15.10.2015. There is no fresh ground made out in this second bail application. Paper book is ready. Learned counsel for the appellant, learned AGA and this Court are ready to hear the appeal on merit.
Considering the submission of learned counsel for the parties, nature of allegation, period of custody, gravity of offence, without expressing any opinion on the merits of the appeal, the Court is of the opinion that it is not a fit case for bail. Hence, the second bail application is hereby rejected.
Order Date :- 22.1.2019 P.P.