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2019 DIGILAW 10 (ALL)

Mahboob v. State of U. P.

2019-01-02

PRITINKER DIWAKER, RAJ BEER SINGH

body2019
JUDGMENT : Pritinker Diwaker, J. As these three appeals arise out of a common judgment dated 10.08.2007 passed by Additional Sessions Judge, Court No. 7, Muzaffarnagar in Sessions Trial No. 282 of 2005, they are being disposed of by this common judgment. 2. As per prosecution case, in the night intervening 13/14.08.1999, victim Rafat Saleem was called by main accused Mahboob, who took him to his house where the other accused persons were also present. It is said that the victim was taken on the first floor and then accused persons, namely accused no. 1-Rafeeque, accused no.2-Sayeed, accused no.4-Rahees, accused no.5-Nawab and accused no.6-Naushad caught hold the victim and thereafter main accused Mahboob chopped the penis of the victim. Immediately after sustaining the injury, victim became unconscious. FIR Ex. Ka.6 was lodged by (PW-1) Mohd. Naim, father of the victim, on 14.8.1999 at 05:20 pm against all the six accused persons. Based on which offence under Sections 307, 326 of IPC was registered. The victim was medically examined on 14.8.1999 vide Ex.Ka.2 by (PW-5) Dr. B.S. Singh. 3. While framing charge, the trial Judge has framed the charge against the accused persons under Sections 307 read with Section 149 of IPC, Section 326 read with Sections 149 and 201 of IPC. 4. So as to hold the accused persons guilty, prosecution has examined seven witnesses. Statements of the accused persons were also recorded under Section 313 Cr.P.C in which they pleaded their innocence and false implication. 5. By the impugned judgment, the trial Judge has convicted the accused appellants under Section 326 read with Section 149 of IPC and sentenced them to undergo imprisonment for life. The trial Judge has further convicted them under Section 201 of IPC and sentenced them to undergo two years' rigorous imprisonment each but has acquitted all the accused persons under Section 307/149 of IPC. Hence this appeal. 6. The accused-appellant Rafeeque has expired during the pendency of these appeals and hence, appeal in his respect, stands abated. 7. Learned counsel for the appellants submits that they are not pressing these appeals, so far as their conviction is concerned, and they would confine their arguments only to sentencing part thereof. Hence this appeal. 6. The accused-appellant Rafeeque has expired during the pendency of these appeals and hence, appeal in his respect, stands abated. 7. Learned counsel for the appellants submits that they are not pressing these appeals, so far as their conviction is concerned, and they would confine their arguments only to sentencing part thereof. It has been argued that the accused no.2 Sayeed, accused no.4 Rahees, accused no.5 Nawab and accused no.6 Naushad have remained in jail for five months and twenty days whereas the main accused Mahboob is still in custody since last 12 years. Offence is said to have taken place about 19 years back. The accused appellants have already remained in jail for sufficient time. Accused-appellants Sayeed, Rahees, Nawab and Naushad are on bail during the pendency of these appeals and during trial also, and now sending them behind the bar would be too harsh for them. For main accused no.3 Mahboob, it has been argued that he is still in custody since last 12 years. 8. Learned counsel for the appellants submits that the appellants are willing to compensate the victim by paying suitable compensation. In support of their arguments, they have placed reliance on a decision of the Supreme Court in Central Bureau of Investigation Vs. Kishore Singh and other, 2011 1 AllJIC 359. 9. On the other hand, supporting the impugned judgment, it has been argued by learned State counsel that the conviction and sentence awarded to the appellants by the trial court is appropriate and calls for no interference. 10. We have heard counsel for the parties and perused the record. 11. (Pw-2) Refat Saleem is a victim. In his statement, he stated that in the night intervening 13/14.08.1999, he was called by the main accused Mahboob, who took him to his house where the other accused persons were also present. He was taken on the first floor and then the accused persons, namely accused no. 1-Rafeeque, accused no.2-Sayeed, accused no.4-Rahees, accused no.5-Nawab and accused no.6-Naushad caught hold him and thereafter main accused Mahboob chopped his penis. Immediately after sustaining the injury, he became unconscious. 12. (Pw-5) Dr. B.S. Singh has stated that victim was treated by Dr. S.K. Bhargava and when he was admitted in the Hospital, his private part was found to be chopped. He states that as Dr. Immediately after sustaining the injury, he became unconscious. 12. (Pw-5) Dr. B.S. Singh has stated that victim was treated by Dr. S.K. Bhargava and when he was admitted in the Hospital, his private part was found to be chopped. He states that as Dr. S.K. Bhargava, treating Doctor, has expired, he is appearing in the court as a witness and he has duly certified the medical report of the victim. 13. (Pw-1) Mohd. Naim is a father of the victim, who lodged the F.I.R., has duly supported the prosecution case. 14. (Pw-3) Ajai Kumar Sharma, Chief Pharmacist of the Hospital, has proved the handwriting of Dr. A.K. Yadav, who prepared the injury report vide Ex.Ka.2. 15. (Pw-7) Vijai Bahadur Singh is the Investigating Officer, who has duly supported the prosecution case. 16. Close scrutiny of the evidence makes it clear that in the night intervening 13/14.08.1999, victim was called by the main accused Mahboob to his house and there all other accused persons caught hold the victim and then Mahboob chopped the private part of the victim. PW-2, the victim, has duly supported the prosecution case, which has been duly proved by his medical report. Immediately after the incident, FIR was lodged by PW-1, father of the victim. 17. Considering the evidence available on record, complicity of the accused persons in commission of offence has been duly proved by the prosecution and we have no reason to disbelieve the statements of the witnesses. Further, considering the entire evidence and the material available on record, the trial court was fully justified in convicting the accused appellants under Sections 326/149 and 201/149 of IPC. The conviction of the appellants under both the Sections is hereby maintained. 18. The only question, which arises for consideration of this Court, is as to what would be the appropriate sentence to be imposed upon the appellants. The incident occurred about 19 years back. The accused-appellants, namely, Sayeed, Rahees, Nawab and Naushad have remained in jail for five months and twenty days, whereas the main accused Mahboob is still in jail since last 12 years. 19. Considering all the facts and circumstances of the case and the role attributed to the accused appellants, we are of the view that the jail period spent by the accused persons, is sufficient. 19. Considering all the facts and circumstances of the case and the role attributed to the accused appellants, we are of the view that the jail period spent by the accused persons, is sufficient. However, considering the law laid down by the Apex Court in Ankush Shivaji Gaikwad vs. State of Maharashtra, (2013) 6 SCC 770 , we are of the view that victim deserves suitable compensation under Section 357 of Cr.P.C. 20. Looking to the heinous act of the accused persons, nature of injury sustained by the victim, and the role attributed to them, we are of the view that the sentence served by the accused-appellant Mahboob, which comes to 12 years, is sufficient, but he is liable to pay compensation of Rs. 2 lakhs to the victim. So far as other accused-appellants are concerned, they are also liable to pay compensation of Rs. 75,000/- each. 21. The accused-appellants are directed to deposit the total amount, which comes to Rs.5 lakhs, within a period of 3 months from today before the trial court and, in turn, the trial court shall disburse the said amount to the victim. In case, the appellants fail to comply with this order, they shall undergo the additional jail sentence of three years each. 22. The appeals are partly allowed.