Mohd. Shakeel vs State of A.P.

B.N. Agrawal and P.P. Naolekar, JJ.—Heard learned counsel for the parties.

The appellant, along with accused Mohd.Isaq and Mohd.Siraj, was tried and by judgment rendered by the trial court, while the other two accused persons were acquitted, the appellant was convicted u/s 302 of the Indian Penal Code (for short "IPC") and sentenced to undergo imprisonment for life and to pay fine of Rs.2000, in default to undergo simple imprisonment for a period of six months. Against the order of acquittal, no appeal was preferred. On appeal being preferred by the appellant, the High Court confirmed the conviction. Hence, this appeal by special leave.'

The prosecution case is supported by the evidence of PWs.2, 3 and 4 (Zubeda Bee, Zaheda Begum and Mohd.Sarwar respectively). These witnesses have consistently supported the prosecution case and their statements are corroborated by the medical evidence. Therefore, we are of the view that the prosecution has succeeded in proving its case beyond reasonable doubt.

Coming now to the nature of offence, it may be stated that the appellant is said to have inflicted only one injury and he has also received injury. In the facts and circumstances, we are of the view that the High Court was not justified in confirming conviction of the appellant u/s 302 IPC rather he should have been convicted u/s 304 Part II, IPC. It has been stated that the appellant is in custody since the year 1999. In our view, ends of justice would be met in case the appellant is awarded punishment u/s 304 Part II IPC for the period already undergone.

Accordingly, the appeal is allowed in part and conviction of the appellant u/s 302 IPC is altered into Section 304 Part II IPC and he is awarded sentence for the period already undergone. The appellant, who is in custody, is directed to be released forthwith if not required in connection with any other case.