Jumeydeen And Others vs State Of U.P.
2015 Latest Caselaw 1927 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Judgment reserved on 3.8.2015
 
Judgment delivered on 21.8.2015
 

 
Case :- CRIMINAL APPEAL No. - 1429 of 2011 
 
Appellant :- Jumeydeen And Others
 
Respondent :- State Of U.P.

Counsel for Appellant :- Pankaj Bharti,B.S.Khokher,J.P.Mishra,Mukhtar Alam,Noor Mohammad,R.P.Pandey

Counsel for Respondent :- Govt. Advocate,Nazrul I.Jafri

Hon'ble Om Prakash-VII,J.

1. This criminal appeal has been preferred by the accused appellants against the judgement and order dated 4.3.2011 passed by the Additional District & Sessions Judge/ Special Judge, Muzaffarnagar in Session Trial No.453 of 2005 (State vs. Jumedin and others) convicting and sentencing the appellants for the offences punishable under Sections 147, 148, 307/149 IPC. Fine was also imposed.

2. The facts of the case, as unfolded by the informant Ishak son of Man Khan in the First Information Report (in short 'F.I.R.'), are that on 23.2.2002 at about 5.00 p.m., Jumedin and Shakir were trying to have illegal electric connection by putting cable in front of the house of complainant's nephew. Gayur, the nephew of the informant and Nasib Ali, the grand son of the informant forbade them from taking illegal electric connection, which caused great infuriation and wrath to Jumedin and Shakir. Jumedin and Shakir proceeded towards their houses threatening Gayur and Nasib Ali to face dire consequences. After a while, Jumedin & Tahir son of Umarjan, Umerjan son of Ramzan, Ismail alias Kalloo, Shakir, Shakoor son of Ayyub and Ayyub son of Ramzan equipped with country made pistol, spear and lathi assaulted Gayur and Nasib with their respective weapons. Hearing the sound of firing and also shrieks of the injured, the informant and other persons reached on the spot. Gayur and Nasib sustained fatal injuries hence both were hospitalized in the Government Hospital, Muzaffarnagar. The nephew of the informant was serious, hence could not lodge FIR in the evening itself.

3. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-6) was registered at Police Station concerned on 24.2.2002 at 8.00 a.m. mentioning all the details as had been described in Ext. Ka-.1. G.D. entry ( Ext. Ka-8) was also made at the same time.

4. Investigation in the matter was started by the Investigating Officer. He inspected the place of occurrence and prepared site plan (Ext. ka-11). The Investigating Officer also recorded statements of witnesses.

5. Injured Nasib Ali was medically examined on 23.2.2002 at 6.15 p.m. by Dr. Narendra Kumar. Following injuries were found on his body:

"Lacerated wound 5.0 cm x 0.7 cm bone deep on left torrent. Parietal region of skull, 9.0 cm above the left ear and 6.0 cm above the left eyebrow."

6. According to the doctor, the injuries were caused by blunt object.

7. Injured Gayur Ali was also medically examined on the same day at 6.30 p.m. Following injuries were found on his body:

"(i) Lacerated wound 5.2 cm x 8.5 cm x bone deep on right side of temporal region of skull, 8.5 cm above the top of right ear.

(ii) Gun shot wound of entry 5.5. cm x 2.0 cm muscle deep on right side of neck, 4.5 cm below the angle right mendobil and 4.0 cm above the middle of left clavicle.

(iii) Stab wound 2.0 cm x 0.7 cm abdomen cavity deep on right side of abdomen, not probed, 4.5 cm above the right iliac crest.

(iv) Gun shot wound of entry 0.75 cm x 0.5 cm muscle deep on postero lateral aspect of right thigh, 24.0 cm above the right pop literal tossa Margin are inside & lacerated. Bleeding on touch present.

(v) Gun shot wound of Exit 1.2 cm x 0.8 cm corresponding to injury no. (iv) i.e. wound of entry. Margins are everted & lacerated."

8. According to the doctor, injury nos. (ii), (iv) & (v) were caused by fire arm. X-ray was advised.

9. On 23.2.2002, Dr. V.P. Singh has operated the injured Gayur Ali and following injuries were found on his body:

"(i) A gutter shaped wound front of Rt. Side neck. All the tissues up to carotid artery damaged, external jugular vein bleed profusely carotid pulsation visible in the vicinity of wound. Bleeding from wound ent. very profusely , bleeds tied & wound packed as oozing from wound ent. Even after fixing the bleeding point.

(ii) Exploratory laporatorix done for injury to abdomen peritoneal cavity in full of blood. Four punctured wounds in the small intestine (lower part), intestine repair done in two layer by clinching and silk. At three places mesentery also punctured which bleed profusely, mesentery repaired. Peritoneal lavage done and after putting drain in peritoneal cavity (three), abdomen closed in laxens. Hence injuries are dangerous to life."

10. After completing the investigation, charge-sheet (Ext. ka-9 and ka-10) against all the accused appellants was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by session court, was committed to the Court of sessions.

11. Accused/appellants appeared and charge under Sections 147, 148 and 307/149 IPC was framed in the trial court against them. All the accused have denied the charges framed against them and claimed their trial.

12. Trial proceeded, and on behalf of prosecution, eight witnesses were examined., wherein PW-1 Gayur Ali, the injured witness, PW-2 Ishak (informant), an eye account witness, PW-3 Abdul, PW-4 Dr. V.P. Singh, who operated Gayur. PW-5 Dr. Narendra Kumar, who medically examined injured Nasib Ali and Gayur and proved medical report (Ext. ka-3 and ka-4). PW-6 Constable Ravindra Kumar. PW-7 Sub-Inspector Yashvir Singh, who completed the investigation and filed chargesheet (Ext. ka-9 & ka-10). PW-8 S.I. Chandrasen. This witness was the Investigating Officer and has proved the site plan (Ex. ka-11).

13. After closure of prosecution evidence, statement of accused appellants under Section 313 Cr.P.C. was recorded.

14. Accused persons in their statements under Section 313 Cr.P.C. denied the allegations and stated that they have been falsely implicated due to enmity.

15. The accused appellants were afforded opportunity to adduce evidence. They had filed paper no. 137-kha and 137 kha/2 medical report of Jumedin, 138-kha /2 medical report of Tahir, chik FIR relating to crime no. 45-A of 2002 under Section 147, 148, 149, 452, 323, 324, 504, 506 IPC (Ext-kha-2), G.D. entry (Ext. kha-4), paper no. 141-kha receipt of electric bill and paper no. 142-kha copy of electric bill in their defence.

16. Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellants beyond reasonable doubt and convicted and sentenced the accused appellants, hence this appeal.

17. I have heard Shri Noor Mohammad, learned counsel for the appellants, learned AGA for the State at length, and perused the entire record carefully.

18. Castigating the impugned judgement and order, learned counsel for the appellants has submitted that accused appellants are in jail for about five years. Offence levelled against them were not proved by the prosecution beyond reasonable doubt. FIR was lodged belatedly and there is no plausible explanation for the same. There are major contradictions in the statement of fact witnesses on material points. The trial court has not taken into consideration the said contradictions and reached at a wrong conclusion. There was a cross-case. Specific plea was also taken by the accused appellants that Gayur received injuries from the buggi due to which informant side became annoyed and forming an unlawful assembly armed with deadly weapon, entered into the Gher of the accused persons and caused injuries to the accused. At this stage, learned counsel for the appellants also referred to the injury report proved as defence paper. It was further submitted that acquittal of the informant side in the cross case will not absolve the prosecution from establishing its case beyond reasonable doubt. Since prosecution has not explained the injuries sustained by the accused appellants and the accused appellants have proved that some of the accused appellants have also sustained injuries in the same course of incident, prosecution story itself becomes doubtful and on this score, accused appellants are liable to be acquitted. It was further submitted that the trial court while imposing punishment upon the accused appellants has not taken into consideration the role assigned to them and the nature of injuries sustained by Gayur and Nasib Ali. Medical evidence does not support the prosecution case.

19. In reply, the learned AGA appearing for the State has submitted that delay in lodging the FIR has been explained properly in the FIR itself. Injuries were caused to the injured Gayur and Nasib by the accused appellants with the intention to kill them. Prosecution was able to establish its case beyond reasonable doubt. Since grievous injuries were sustained by the injured, the witnesses had taken them at first for treatment. It was further submitted that the trial court has rightly convicted and sentenced the accused appellants for the offence under Section 147, 148, 307 read with 149 IPC. The accused appellants armed with deadly weapon forming an unlawful assembly had committed the present offence. Medical evidence fully supports the prosecution case. Hence, there is no illegality and infirmity in the impugned judgment and order warranting interference by this Court.

20. I have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence.

21. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. [vide: Sahib Singh Vs. State of Haryana, AIR 1997 SC 3247].

22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Chandrapal Singh & Ors. Vs. Maharaj Singh & Anr., AIR 1982 SC 1238; State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604; G. Sagar Suri & Anr. Vs. State of U.P. & Ors., AIR 2000 SC 754; and Gorige Pentaiah Vs. State of A.P. & Ors., (2008) 12 SCC 531).

23. In the present matter, offence is said to have been committed on 23.2.2002 at 5.00 p.m. in the village in question, situated 7 kilometre away from the police station concerned. Prosecution case is that in the evening itself, injured were taken to the hospital for treatment. Injury reports in respect of injured Gayur and Nasib Ali also indicate that both the injured were medically examined in the evening itself at District Hospital, Muzaffarnagar. If the explanation given by the prosecution witnesses in the FIR and the statement made before the Court are compared with the submissions made by the learned counsel for the parties and the finding recorded by the trial court, it is clear that the delay in lodging the FIR was properly explained by the prosecution. The submission made by the learned counsel for the accused appellants in this regard has no force and is liable to be discarded. There is no illegality in the finding recorded by the trial court on this score and no interference is required by this Court.

24. So far the submission regarding motive is concerned, although I am oblivious of the fact that motive relegates into the back ground in a case of direct ocular testimony and is not of much significance, but where the motive is false and cooked up, then it assumes importance to test the veracity or other wise of the prosecution witnesses. Clear case of the prosecution is that accused appellants Jumedin and Shakir had come to the house of the injured to connect illegal electric connection from the roof of the injured and when both the injured objected them, accused appellants Jumedin and Shakir threatened them for dire consequences and went from there. After a short while, all the accused appellants returned at the Gher of the injured and committed the present offence. Defence case is that injured Gayur received injuries from the buggi of accused appellants Jumedin and Tahir, therefore, informant side forming unlawful assembly came at the Gher of the accused appellants and committed the offence in which Jumedin and Tahir received injuries. The trial court after analysing the entire evidence available on record, came to the conclusion that the motive attributed to the accused appellants in the FIR and as stated by the prosecution witnesses appear more probable than the defence taken by the accused appellants.

25. I have re-appreciated the entire evidence on the point of motive as also the finding recorded by the trial court on this score. In my view, the finding of the trial court on this point is in accordance with the evidence available on record as there is only suggestion of the accused appellants from the prosecution witnesses though the FIR and injury reports about cross case were proved but to substantiate that the injuries sustained by Gayur are the result of dashing from buggi were not proved by the defence. The FIR and the injury report filed by the appellants are not sufficient to discard the testimony of the prosecution witnesses. There is no illegality in the finding recorded by the trial court on this score and the same does not require interference.

26. Now the question is as to whether the incident took place in the Gher of the injured Gayur or in the Gher of accused appellant Jumedin. The Investigating Officer has shown the place of occurrence in the site plan (Ext. ka-11) at the outside of the Gher of injured Gayur. PW-1, PW-2 and PW-3 have clearly and consistently stated that the present incident occurred inside the Gher of the injured Gayur. The Investigating Officer has also investigated this case as also the cross-case of this case. Since accused appellants have not adduced any evidence to establish that the incident took place inside the Gher of the accused appellant Jumedin and there is only suggestion and the FIR of the cross case, these documents cannot be taken as substantive piece of evidence to discard the testimony of the prosecution witnesses on this point. There is no contradiction in the statement of PW-1, PW-2 and PW-3 on the point of place of occurrence. Thus, I am of the opinion that merely showing the place of occurrence outside the Gher of the injured Gayur by the Investigating Officer, the statement of the prosecution witnesses cannot be disbelieved on this point, especially when the testimony is supported from medical evidence. Thus, the finding recorded by the trial court on this point is also not liable to the interfered with.

27. As far as time of the incident is concerned, since this point has not been raised by the learned counsel for the appellants, it is not necessary to discuss the finding recorded by the trial court on this score.

28. One feature / circumstance in the present matter is also that the accused appellants have taken plea that Jumedin and Tahir both have received injuries in the same course of incident but the prosecution has not explained the same and the injuries are not simple in nature. The finding of the trial court is that although the injuries are said to have been received by Jumedin and Tahir but they were medically examined on 27.2.2002. Prosecution case from its beginning is that they have not caused any injuries to the accused appellants. Trial court finding is that injuries said to have been sustained by the accused appellants appear not to have been sustained in the same course of incident. On close scrutiny of the entire evidence and suggestion, I am of the opinion that the accused appellants could not establish that accused appellants Jumedin and Tahir have sustained injuries in the same course of the incident. If this fact has not been established, though the same required to be established, I am of the opinion that there was no occasion or burden upon the prosecution to explain the injuries said to have been sustained by the accused appellants. It is worthy to note that prosecution from very beginning has denied that no injury was caused to the accused appellants in the same course of incident. Thus, on this score, the prosecution case cannot be disbelieved. There is no illegality or perversity in the finding recorded by the trial court and the same is not liable to be interfered with.

29. Let us take up the submission regarding medical evidence, presence of witnesses, manner of the incident, contradictions in the statement of witnesses and participation of the accused appellants in the present offence.

30. Both the injured Gayur and Nasib Ali were medically examined on 23.2.2002 in the evening at 6.15 p.m. and 6.30 p.m. at District Hospital, Muzaffarnagar. There is one lacerated wound on the body of the injured Nasib Ali, which, in the opinion of the doctor, was caused by blunt object, i.e. lathi. Similarly, injured Gayur received five injuries. First injury is lacerated wound, which was also caused by blunt object. Injury nos. 2,4 and 5 are gun shot wound. Injury nos. 4 and 5 are entry and exit wound corresponding to each other. Meaning thereby there were only two gun shot injuries. Injury no.2 is on the neck and injury no.4 is on the thigh. Injury no.3 is stab wound on abdomen. In the opinion of the doctor, it could be caused with the weapon ballam. An operation of injured Gayur was done by the Surgeon for injury nos. 2 and 3 and in the opinion of the doctor, both the injuries were dangerous to life. If the injury report prepared in respect of injured Gayur is taken into consideration in light of the statement made by the doctor, it is clear that all the injuries were kept under observation and duration was fresh. Prosecution case is that accused appellants Jumedin, Tahir and Shakoor were armed with country made pistol, accused appellant Umerjan was armed with Ballam, accused appellants Sabir and Ismail and one Ayyub, who was acquitted by the trial court, were armed with lathi. Since appeal against acquittal of Ayyub has not been filed, it is not necessary to discuss his role in this appeal. As far as the injuries are concerned, PW-1 Gayur, who is injured, has stated that fire made by Jumedin hit him in abdomen, two fires were made by accused appellant Tahir, which hit him on leg and neck. Stab wound was caused by accused appellant Umerjan. Other accused appellants caused injuries by lathi. One injury said to have been caused by lathi was found on the body of Nasib Ali and one to the injured Gayur. PW-2 Ishaq has stated that when accused appellants entered into the Gher of Gayur, he also entered into the Gher behind them and saw the entire incident. Fire made by Jumedin hit to Gayur in his abdomen, fire made by Tahir hit to the injured Gayur in his leg, fire made by Shakoor hit to the injured on his neck. He has also stated that stab wound was caused by Umerjan. Other accused appellants caused blunt object injuries. PW-3, who also claims to be an eye witness of the incident has stated that fires made by accused appellants Shakoor, Jumedin and Tahir hit to the injured Gayur on his leg, abdomen and neck. He has also stated that he reached on the spot after hearing the noise.

31. There is only two fire arm injuries. The weapon fire arm (country made postol) is assigned to three accused, namely, Jumedin, Tahir and Shakoor. PW-1 Gayur has not assigned role of firing to accused appellant Shakoor in examination in chief but in cross-examination, he has stated that fire made by Shakoor hit him on his neck.

32. If the medical evidence is compared with the statement of the injured witness and the eye witnesses, it is clear that only two fir arm injuries were sustained to the injured. There are contradictions in the statement of PW-1, PW-2 and PW3 on the point of causing of fire arm injuries by the accused appellant Shakoor. Medical evidence also discloses only two fire arm injuries. Thus, from the above, it emerges that only two persons have caused fire arm injuries. PW-1 is injured. Other prosecution witnesses have reached the spot later on. The Trial court in considering the role assigned to the accused appellant Shakoor, in my opinion, has committed error. No injury said to have been caused by the accused appellant Shakoor is found on the body of injured Gayur or Nasib Ali. Participation of the accused appellant Shakoor in commission of the present offence for the reason discussed above appears to be doubtful. Since statement of prosecution witnesses regarding participation of the accused appellants Jumedin and Tahir causing fire arm injuries is supported from medical evidence, therefore, finding recorded by the trial court about participation of these two appellants in commission of the present offence is not liable to be interfered with, as there is clear and consistent case of the prosecution that both these appellants i.e. Jumedin and Tahir have caused fire arm injuries to Gayur and Nasib Ali with intention to kill them.

33. So far as participation of accused appellant Umerjan in commission of the present offence is concerned, medical evidence clearly discloses one stab wound injury on the abdomen of injured Gayur. Prosecution witnesses PW-1, PW-2 and PW-3 have also clearly and consistently stated that accused appellant Umerjan caused ballam injuries to injured Gayur. Thus, the finding recorded by the trial court in regard to participation of accused appellant Umerjan in causing stab injury by ballam is also not liable to be interfered with. Injury was caused on abdomen, which was later on operated and doctor has clearly opined that this injury was also dangerous to life. Prosecution case is also that accused appellants have caused injuries to injured Gayur and Nasib Ali with intention to kill them.

34. Now the role / participation of two accused appellants i.e. Sabir and Ismail remains to be discussed.

35. Both these appellants have been assigned weapon lathi. Prosecution witnesses have stated that they had also caused injuries to the injured by lathi. In the opinion of doctor, injuries found on the body of injured Nasib Ali was caused by blunt object i.e. lathi. One injury is also found on the body of injured Gayur caused by blunt object i.e. lathi. Thus, the testimony of PW-1, PW-2 and PW-3 on the point of participation of these two appellants also finds support from medical evidence and participation of these two appellants in commission of the present offence is found fully established by the prosecution beyond reasonable doubt. The finding recorded by the trial court regarding participation of these two accused appellants is also in accordance with the evidence available on record and does not require any interference.

36. So far as the question as to whether the accused appellants have formed unlawful assembly and caused injuries to the injured in furtherance of common object to kill them is concerned, it is clear from the discussions made here-in-above that though the participation of accused appellant Shakoor in committing the present offence is not found established yet the prosecution has been able to establish beyond reasonable doubt the participation of five accused appellants in commission of the present offence. Medical evidence also supports the oral testimony of the injured and eye witnesses. Non-examination of injured Nasib Ali is not fatal to the prosecution case as one of the injured Gayur was examined by the prosecution and he has supported the prosecution case. Statement of the witnesses is also clear and consistent that accused appellants forming unlawful assembly have committed the present offence. Intention of the accused appellants was to kill the injured and they have caused the injuries in furtherance of their common object of unlawful assembly. Hence, the trial court has rightly convicted the accused appellants Jumedin, Tahir, Sabir, Umerjan and Ismail for the offence under Section 307/149 IPC. Though in the present matter, role of the accused appellants Jumedin, Tahir and Umerjan have been specified by the prosecution witnesses, role of these three accused appellants can be taken individually as simplicitor act but all these accused appellants were also the member of unlawful assembly, therefore, I do not find it necessary to interfere with the conviction of all five accused appellants, namely, Jumedin, Tahir, Sabir, Umerjan and Ismail under Sections 307/149 IPC.

37. In the present matter, accused appellants Jumedin, Tahir and Umerjan were armed with deadly weapon i.e. country made pistol and ballam. Accused appellants Sabir and Ismail were armed with Lathi, though in all circumstances lathi cannot be taken as deadly weapon. Therefore, in my view, conviction of accused appellants Jumedin, Tahir and Umerjan is sustainable only under Section 148 IPC. Since their conviction under Section 148 IPC is found legal, they cannot be punished at the same time for the offence under Section 147 IPC. Conviction and sentence of accused appellants Jumedin, Tahir and Umerjan recorded by the trial court for the offence under Section 147 IPC is liable to be set-aside but conviction and sentence of these accused appellants for the offence under Section 148 IPC for committing riot is liable to be affirmed. It may be noted that Section 147 IPC and Section 148 IPC both are related to forming of an unlawful assembly. As far as conviction of accused appellants Sabir and Ismail for the offence under Section 148 IPC is concerned, lathi has been used in the present matter by them as weapon but in all circumstances, lathi has not been recognized as deadly weapon, therefore, conviction of these two appellants as member of unlawful assembly for committing riot under Section 147 IPC is found sustainable and conviction under Section 148 IPC of these appellants is liable to be set-aside.

38. Now the Court comes to the quantum of punishment awarded to the accused appellants.

39. The trial court has awarded to all the accused appellants 10 years rigorous imprisonment and Rs. 5,000/- as fine to each of the accused appellants for the offence under Section 307/149 IPC. Further, in default of payment of fine, 6 months simple imprisonment in addition has also been awarded.

40. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, it is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

41. In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that the punishment should be proportionate to the gravity of the offence.

42. In the present matter, as mentioned above, accused appellants have been sentenced for the offence under Section 307/149 IPC for 10 years rigorous imprisonment and Rs. 5,000/- as fine. They are in jail from the date of judgment of the trial court i.e. 4.3.2011. Accused appellants Jumedin and Tahir had threatened the injured for dire consequences and had caused fire arm injuries to the injured Gayur and the injuries were found dangerous to life, therefore, I am of the opinion that purpose of imposing proportionate punishment to deter the criminal would be sub-served if these two appellants, namely, Jumedin and Tahir are punished for the offence under Section 307/149 IPC for seven years rigorous imprisonment and also a fine of Rs. 5,000/- instead of ten years rigorous imprisonment. Similarly, injury caused by accused appellant Umerjan was on the abdomen of the injured Gayur and the same was also dangerous to life, therefore, I am of the opinion that he may also be punished for the offence under Section 307/149 IPC for seven years rigorous imprisonment with a fine of Rs. 5,000/- instead of ten years rigorous imprisonment.

43. As far as the punishment imposed upon accused appellants Sabir and Ismail is concerned, although two blunt object injuries were found on the body of injured Gayur and Nasib Ali yet it is not clear from the prosecution evidence as to which accused caused injuries to which injured. Hence, considering the facts and circumstances of the case and role played by these two appellants, I am of the opinion that purpose of imposing proportionate punishment to deter the criminal would be sub-served if these two appellants, namely, Sabir and Ismail are punished for the offence under Section 307/149 IPC for five years rigorous imprisonment and also a fine of Rs. 5,000/- instead of ten years rigorous imprisonment.

44. The punishment imposed by the trial court upon the appellants Jumedin, Tahir and Umerjan for the offence under Section 148 IPC is affirmed. Further, punishment imposed by the trial court upon the appellants Sabir and Ismail for the offence under Section 147 IPC is also affirmed.

45. In view of the foregoing discussions, I am of the opinion that the appeal having some merits is liable to be partly allowed and the impugned judgment and order dated 4.3.2011 is liable to be modified to the extent as discussed above.

46. Accordingly, the appeal is partly allowed. The impugned judgment and order dated 4.3.2011 is modified as under :

47. Applying rule of caution, accused appellant Shakoor is not found guilty for the offence under Sections 147, 148, 307/149 IPC and he is acquitted from the said charges. If he is not involved/ wanted in some other case, he shall be released forthwith.

48. Sentence of accused appellants Jumedin and Tahir for the offence under Section 307/149 IPC is reduced to seven years rigorous imprisonment and also a fine of Rs. 5,000/- instead of ten years rigorous imprisonment.

49. Sentence of accused appellant Umerjan for the offence under Section 307/149 IPC is reduced to seven years rigorous imprisonment with a fine of Rs. 5,000/- instead of ten years rigorous imprisonment.

50. Sentence of accused appellants Sabir and Ismail for the offence under Section 307/149 IPC is reduced to five years rigorous imprisonment and also a fine of Rs. 5,000/- instead of ten years rigorous imprisonment.

51. Additional imprisonment in default of payment of fine by the accused appellants Jumedin, Tahir, Umerjan, Sabir and Ismail would be the same as has been ordered by the trial court in the impugned judgment and order.

52. Accused appellants Jumedin, Tahir and Umerjan are acquitted for the offence under Section 147 IPC and accused appellants Sabir and Ismail are acquitted for the offence under Section 148 IPC.

53. Let a copy of this judgement along with lower court record be sent immediately to the Sessions Judge, Muzaffarnagar for compliance. A compliance report be sent to this Court.

Order date: 21.8.2015

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