IMPORTANT POINT
When the court below has already shown leniency in sentencing, the sentence should not be further reduced.

Judgment

Ranjan Gogoi, J.

Criminal Appeal No.207 of 2011

1. Out of the 8 appellants who have filed this appeal challenging their conviction, inter alia, under Section 325 IPC as made by the High Court by the impugned judgment and order dated 21.05.2010, the appellant Nos.2 and 6 (Shakeel and Haneef) have died during the pendency of the present appeal. We will, therefore, be concerned with the case of the remaining appellants before us.

2. The learned trial court had convicted the appellants under different provisions of the Indian Penal Code including Section 308 thereof and sentenced the accused appellants to undergo RI for a period of 4 years under the aforesaid section of the Code. In appeal, the High Court while maintaining the conviction and sentence awarded for the lesser offences altered the conviction under Section 308/149 IPC to Section 325/149 IPC. The sentence of four years RI was also reduced to a period of one year. It is against the aforesaid order of the High Court that the appellants have filed the present appeal.

3. We have heard Shri Siddhartha Dave learned counsel for the appellants and Shri Ratnakar Dash, learned senior counsel for the respondent.

4. Learned counsel for the appellants has vehemently argued that the acts committed by the accused appellants were in the exercise of their right of self defence inasmuch as the complainant party which had comprised of as many as 8 persons had come to assert their right over the Gher (open area of land), ownership and possession of which was disputed between the parties. On the said basis it is contended that no offence can be attributed to the accused on account of the overt acts committed by them, the same being in exercise of their right of self defence. Alternatively, it is argued that if this Court is to hold that the accused appellants are guilty of commission of the offences in question the said offences may be compounded and the accused may be directed to pay compensation to the injured. Additionally, it is urged that the provisions of Section 360 of the Cr. P.C. may be invoked and while maintaining the conviction the accused may be released on probation of good conduct.

5. The arguments advanced on behalf of the appellants have been resisted by the learned counsel appearing for the State who contends that the benefit of right of private defence would not be available to the accused inasmuch as both parties had come to the disputed Gher and there was a mutual altercation leading to a free fight between the two groups. The above is a finding of fact recorded by the learned trial court and affirmed by the High Court. Learned counsel for the respondent has urged that the offence under Section 325 IPC being grave and the sentence imposed (one year RI) by the High Court being sufficiently lenient, in the facts of the present case, the provisions of neither Section 320 or Section 360 Cr. P.C. ought to be invoked.

6. We have considered the submissions advanced on behalf of the parties. We have also looked into the evidence and materials on record. The trial court and the High Court have concurrently held that the injuries sustained by P.W.2 Musharraf and P.W.1 Ameer Ahmed have been caused by the accused in the course of a mutual fight. The said finding of fact is supported by the evidence and materials on record. This Court, therefore, will have no occasion to arrive at any contrary finding. What would follow from the above is that the accused persons must be held liable for the acts committed and the consequential injuries suffered by P.W.2. Musharraf and P.W.1 Ameer Ahmed.

7. We have considered the medical evidence on record which shows that P.W.2 Musharraf, had suffered a fracture injury which would bring the same within the expression “grievous hurt” as appearing in Section 320 of the IPC. Punishment for the said offence would therefore be covered by Section 325 IPC which contemplates a period of imprisonment upto 7 years alongwith fine. Having regard to the above, th