AHSANversusSTATE OF U.P.

                           [2017] 7 S.C.R. 658



A                                AHSAN

                                    v.

                             STATE OF U.P.

B                  ·(Criminal Appeal No. 1525 of2017)

                            AUGUST29,2017

       fR.K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.J

C        Penal Code, 1860- ss.452, 307134, 504, 316134 -Prosecution
  case was that complainant witnessed that appellant and other
  accused armed with the country made pistols entered the house of
  his uncle and abused members of family including his pregnant
  niece and shot fire from their respective pistols with intention of
  killing them - Conviction ulss.452, 307134, 504, 316134 by trial
D
  court and life imprisonment - High Court affirmed the same -
  Conviction upheld by Supreme Court - instant appeal challenging
  correctness of quantum of sentence - Held: The gunshot injury
  caused by the appellant to the victim was grievous in nature, the
  bullet injury was caused in the head which was the most delicate
E and vital part of the body; the facts of the case satisfied the
  ingredients of the first part of s.307, namely, all the three accused
   which included the appellant had gone lo the house of victim with a
  common intention to kill the members of.family and in order to
  accomplish the intention, each accused targeted one member of the
F family present in the room which resulted in death of a stillborn
  child of niece, who was hit by gunshot in her abdomen and other
   two members suffered serious gunshot injuries though both survived
  - 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,
G the motive behind the commission of the offence, nature of injuries
   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 - Considering these
  factors, no case made out for interference with quantum of
H punishment in the instant case.
                                    658
                    AHSAN     v. STATE OF U.P.                          659


      Dismissing the appeal, the Court                                  A
       HELD: 1. 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 B
"such punishment, which is prescribed in first part" and the third
class of cases is when any person offending under Section ~07
IPC is under sentence of imprisonment for life, causes hurt,. be
punished with "death". 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 c
any circumstances, caused death. 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. The instant case covers class of
cases falling under part one and two. (Paras 19, 20, 22, 23( (663- D
G, H; 664-A-CI
        2. 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. It is for the
  reasons that firstly, the facts of the case squarely fall in the second
                                                                          E
  part of Section 307 IPC; secondly, gunshot injury caused by the
  appellant to the victim-S was grievous in nature, thirdly, the bullet
  injury was caused in the head which was the most delicate and
  vital part of 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 F
  of victim-S 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 victim-R, who was hit by gunshot in
. her abdomen and other two members suffered serious gunshot
                                                                          G
  injuries though both survived. (Paras 23, 241 (664-D-F]
         3. 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 sustained by the victim, whether the · H
660            SUPREME COURT REPORTS                          [2017) 7 S.C.R.



A     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 SCOJ>e to interfere in
      quantum of punishment. Such is the case here. There is no
      ground to alter the punishment awarded by the Sessions Court,
B
      which on the facts found proved, was rightly affirmed by the High
      Court. [Paras 25, 27] [664-G-H; 665-BI
            Sanjay v. State of Uttar Pradesh 2016 (3) SCC 62 - .
            distinguished.

 c                             Case Law Reference
             2016 (3) sec 62            distinguished          Para 26


           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
 D    No.1525 of2017.
            From the impugned final Judgment and Order dated 21.04.2015
      passed by the High Court of Judicature at Allahabad in Criminal Appeal
      No. 615 of2008.
          Ajit Singh Pundir, Arijeet Singh, Anvita Aparajita, Bhupendra
 E    Kumar Bhardwaj, Advs. for the Appellant.
            Ashutosh Kr. Sharma, Tanmay Agarwal, Sudeep Kumar and Ravi
      Prakash Mehrotra, Advs. for the Respondent.
            The Judgment of the Court was delivered by
 p          ABAHY MANOHAR SAPRE, J. 1. Leave granted.
            2. This appeal is filed by one out of three accused against the final
      judgment and order dated 21.04.2015 passed by the High Court of
      Judicature at Allahabad in Criminal Appeal No.615 of2008 whereby the
      High Court dismissed the appeal filed by the accused-appellant herein
 G    and affirmed the judgment 11.12.2007 of the Additional Sessions Judge,
      Muzaffar Nagar in Sessions Trial No. 746 of2005 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,
 H
                     AHSAN v. STATE OF U.P.                                     661
                   [ABHAY MANOHAR SAPRE, J.]

  to further undergo three months' simple imprisonment, imprisonment A
  for life with fine of Rs. l 0,000/- under Section 307 /34 IPC, in default of
  payment of fine, to further undergo six months' simple imprisonment,
  rigorous imprisonment often years with fine ofRs.5000/- under Section
· 316/34, in default of payment of fine, to further undergo simple
  imprisonment for three months and two years rigorous imprisonment B
  with fine ofRs. l 000/- 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     c
  p.m., when Iliyas-the Complainant, after having meal, reached near the
  house ofNaseem-his paternal uncle, he heard noise coming out from
  that house. When llliyas entered the house, he saw Manshad, Kami!
  andAhsan(the appellant), all from the same locality, armed with country
  made pistols in their hands, abusing his cousin lstekhar@Dholoo, Shahzad
  (son-in-law) and Rukhsana, his niece with filthy language and they made       D
  fires from their respective pistols with the intention of killing them. The
  bullet fired by Manshad injured lstekhar, the bullet fired by Kami! 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,         E
  lkram etc. llliyas 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 llliyas on
 08.10.2004 at 20.45 hrs., F.l.R. case Crime No. 313 of 2004 was
 registered under Sections 452, 307 and 504 TPC at Police Station Shamli,       F
 District Muzaffar Nagar. On the same day, the investigation was
 conducted by sub-Inspector 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, 3 16 and 504 TPC. The         G
 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, Kami! died and Manshad was declared as 'juvenile' to
                                                                                H
662            SUPREME COURT REPORTS                           [2017] 7 S.C.R.


A     be tried separately. Ahsan (appellant herein) was charged for the
      offences under Sections 452, 307/34, 504 and 316/34 of !PC.
              6. By judgment dated 11.12.2007, the. Trial Court convicted the
      appellant forthe offences punishable under Sections 452, 307/34, 316/
      34 and 504 IPC and sentenced him seven years' rigorous imprisonment
B     with fine ofRs.5000/-under Section 452 IPC, in default of payment of
      fine, to further undergo three months' simple imprisonment, imprisonment
      for life with fine ofRs.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 fmther undergo simple
c     imprisonment for three months and two years' rigorous imprisonment
      with fine of Rs. I0001- under Section 504 IPC, in default of payment of
      fine, to 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
 D an appeal being Criminal Appeal No.615 of2008 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.
 E         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.
             11. In the light oflimited notice issued, the only question which is
 F    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.
 G          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
 H
                     AHSAN v. STATE OF U.P.                                      663
                   [ABHAY MANOHAR SAPRE, J.]

 contended that both the Courts below erred in awarding "life                    A
 imprisonment" to the appellant insofar as it relates to an offence punishable
 under Section 307 of !PC.
          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          B
. sentence in the first part of Section 307 IPC, which could extend only up
  to I 0 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        c
 already undergone and he be set at liberty by upholding his conviction.
      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 pernsal
 of the record of the case and the written submissions filed by the learned      D
 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:
                                                                                 E
        "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              F
        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 sentence of imprisonment for life, he
        may, if hurt is caused, be punished with death."                         G
       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,
                                                                                 H
664            SUPREME COURT REPORTS                             [2017] 7 S.C.R.



A     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
B     is concerned, it applies to the cases where a person does any act with an
      intention or knowledge and under any circumstances, caused death.
              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.
 c          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.
D
             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 the body; fourthly, the facts of the case satisfied
 E    the ingredients of the first part of Section 307 IPC, namely, all the three
      accused which included the appellant had gone to the house ofvictim-
      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
 F
      members suffered serious gunshot injuries though both survived.
             25. In our opinion, while sentencing the accused, the Court is
 H/   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 ~ehind the commission of the offence, nature of
 G
      injuries 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
      in!erfere in quantum of punishment. Such is the case here.
 H
                   AHSAN v. STATE OF U.P.                                    665
                 [ABHAY MANOHAR SAPRE, J.]

       26. Learned counsel for the appellant placed reliance on the          A
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 !PC to 304 Part I !PC. Such is not the case
here.
                                                                             B
      27. We thus find no good ground to alter the punishment awarded
by the Sessions Court, which 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.                        c

Devika Gujral                                            Appeal dismissed.