FIREMAN GHULAM MUSTAFA Vs. STATE OF UTTARANCHAL(NOW UTTARAKHAND)

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1105 of 2015, Judgment Date: Aug 25, 2015

                                                   NON REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NO.   1105   of 2015
                        (@ SLP(Crl.) No.7451 of 2014)

Fireman Ghulam Mustafa                                     ..   Appellant(s)

                                   versus

State of Uttaranchal
 (Now Uttarakhand)                                        ..   Respondent(s)
                                    With

                      CRIMINAL APPEAL NO. 1106  of 2015
                        (@ SLP(Crl.) No.6249 of 2014)


                               J U D G M E N T

C. NAGAPPAN, J.



Leave granted.

These two appeals  are preferred against the common judgment dated  2.4.2014
of the High Court of Uttarakhand at Nainital, in Criminal Appeal No.  68  of
2003 and Criminal Appeal No. 96 of 2003.

Both the appellants were accused nos. 1 and 2 in S. T. No. 80  of  1998   on
the file of Additional Sessions Judge (Fast Track Court)   Almora  and  they
were tried for the offences under Section 307 and 452 of Indian Penal  Code.
 The Trial Court found them guilty of both the  charges and  sentenced  them
each to undergo 7 years rigorous imprisonment and pay a fine of  Rs.  5000/-
and in default to undergo imprisonment for six months for the offence  under
Section 307  IPC  and  further  sentenced  them  each  to  undergo  rigorous
imprisonment for period of 3 years  and  pay  a  fine  of  Rs.  1000/-  with
default sentence for the offence under Section 452 IPC.

Aggrieved  by  the  conviction  and  sentence  both  the  accused  preferred
independent criminal appeals and they  were  heard  together  and  the  High
Court dismissed  both  the  appeals  by  the  impugned  judgment.  The  said
judgment is under challenge now.

When  these  appeals  by  way  of  special  leave  petitions  came  up   for
preliminary hearing before us on different dates, we issued  notice  to  the
Respondent-State limited to the extent that instead  of  conviction  of  the
petitioners under Section 307 of IPC,  whether  the  conviction  would  have
been either under Section 323 or under Section 325  of  the  IPC.   We  have
accordingly heard learned counsel for the parties on that limited extent.

Both the appellants and the deceased were employed as Firemen  at  the  Fire
Station Headquarter,  Bageshwar.   PW1  Munnu  Lal,  Fire  Station  Officer,
resided at the distance  of  about  300  yards  in  a  rented  accommodation
provided by his landlord PW2 Ratan Singh.  On the occurrence night at  about
1 a.m. three accused, who were Firemen, came to his residence,  knocked  his
door and PW1 Munnu Lal switched on the light and opened  the  door  and  the
accused barged in with lathis and indiscriminately  beat  him  with  lathis.
PW1 Munnu Lal screamed and on hearing the cry PW2 Ratan  Singh  and  another
tenant came and witnessed the  occurrence  and  on  their  intervention  the
assailants left the spot.  On the information given by PW2 Ratan Singh,  the
SHO of local police station rushed there and  took  PW1  Munnu  Lal  to  the
local government hospital.  PW3 Dr. N. D. Punetha  examined  PW1  Munnu  Lal
and found 18 injuries including fractures of wrist bones in both the  hands.
 He was shifted to District  Headquarter  Hospital  and  thereafter  to  the
Medical College Hospital, Allahabad.   On  the  complaint  of  landlord  PW2
Ratan Singh, F.I.R. came to be registered and  after  investigation,  charge
sheet  was filed against  all  the  accused.   The  case  was  committed  to
sessions and during its pendency, one of the accused Hukam  Singh  died  and
the charges against him stood abated.  The  remaining  two  were  tried  and
convicted for the offences as stated supra.

The learned senior counsel appearing for the appellants contended  that  the
overt acts of the appellants were committed not with the intention to  cause
death of the victim and it would not attract the offence under  Section  307
IPC and it may fall under either Section 323 or Section 325  of  the  Indian
Penal Code.  Per contra, the learned counsel appearing for  the  respondent-
State contended that  the  appellants  as  a  revenge  for  recording  their
absence from duty by PW1 Munnu Lal at the Fire Station,  entered  his  house
in the midnight and attacked him with lathis with the  intention  to  commit
murder and the courts below have rightly  convicted  them  for  the  offence
under Section 307 IPC and the conviction and the sentence are sustainable.

To justify a conviction under Section 307 IPC the Court has to  see  whether
the act was done with the intention to commit murder  and  it  would  depend
upon the facts and circumstances  of  the  case.   Although  the  nature  of
injuries caused may be of assistance in  coming  to  a  finding  as  to  the
intention of the accused, such intention  may  also  be  gathered  from  the
circumstances like the nature of weapons used, parts of the body  where  the
injuries were caused, severity of the blows given and motive, etc.

Just before the occurrence PW1 Munnu  Lal  came  to  the  Fire  Station  for
surprise check and recorded the absence of the accused in the general  diary
and returned home.  Within few minutes  the  appellants/accused  armed  with
lathis went to his house and indiscriminately beat him with  lathis  causing
injuries in     neck, chest, hands,  buttocks  and  thighs.   PW3  Dr.  N.D.
Punetha mentioned in her report that injury nos.11, 17 and 18  are  grievous
in nature.  In fact the grievous injuries are the fractures of  wrist  bones
in both the hands.    Though the injuries caused  were  18  in  number  they
were not on vital parts of the body.  It is true  that  the  appellants  had
acted in a state of fury but it  cannot  be  said  that  they  caused  those
injuries with the intention to cause death.  The appellants are  not  liable
to be convicted for the offence under Section 307 IPC and at the  same  time
for having voluntarily caused grievous hurt they are liable to  be  punished
under Section 325 of the Indian Penal Code.

Both the counsel appearing for the appellants submitted that the  occurrence
had taken place in the year 1998 when all the accused were in their mid  20s
and they have been dismissed from  service  and  both  the  appellants  have
undergone about 17 months rigorous imprisonment  and  the  sentence  may  be
reduced.

Considering the circumstances of the case and keeping in  view  the  age  of
the appellants, their family strength, as also the  fact  the  incident  had
taken place in the  year  1998,  custodial  sentence  of  3  years  rigorous
imprisonment for the offence under Section 325 IPC would meet  the  ends  of
justice.

In the result, the conviction and sentence imposed on  both  the  appellants
for the offence under Section 307 IPC are set aside  and  instead  they  are
convicted for the offence under Section 325 IPC and sentenced to  undergo  3
years rigorous imprisonment each and to pay a fine of Rs.5000/- each and  in
default to undergo rigorous imprisonment for one month.  The conviction  and
sentence awarded to the appellants under Section 452  of  IPC  shall  remain
unaltered.  Both the sentences shall  run  concurrently.   The  appeals  are
allowed in part and to the extent indicated above.

                                                                ……………………….J.
                                                                (M.Y. Eqbal)

                                                                .………………………J.
                                                                (C.Nagappan)
New Delhi;
August 25, 2015