Full Judgment Text
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CASE NO.:
Appeal (crl.) 342 of 2009
PETITIONER:
Mohd. Maqbool Tantray
RESPONDENT:
State of J & K
DATE OF JUDGMENT: 04/02/2010
BENCH:
Harjit Singh Bedi & A.K. Patnaik
JUDGMENT:
JUDGMENT
2010 (3) SCR 589
The following Order of the Court was delivered
ORDER
1. We have heard the learned counsel for the parties at length.
2. The appellant Mohd. Maqbool Tantray along with 17 others was tried for
offences punishable under Sections 302/392/364 etc. of the Ranbir Penal
Code [for short ‘the RPC’] and Section 3(1) of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 [hereinafter referred to as ‘the TADA’]
for being involved in the abduction and murder of former MLA Mir Mustafa on
the 25th March, 1990. Eleven of the accused were discharged on the
statement made by the Public Prosecutor, three died during the pendency of
the trial and one absconded and three were brought to trial including the
appellant. In the trial three co-accused of the appellant herein were
acquitted but the court relying on the evidence of various prosecution
witnesses and in particular on the confessional statement given by the
appellant to the SSP Mr. A.K. Suri, convicted him for offences punishable
under Section 364 read with Section 120B of the RPC and sentenced him to
undergo rigorous imprisonment for five years and to pay a fine of Rs.
1000/-, in default to undergo imprisonment for six months and under Section
3(2)(ii) of TADA to undergo rigorous imprisonment for 14 years and to pay a
fine of Rs. 5000/-, in default of payment of fine to further undergo
imprisonment for a period of one year, both the sentences to run
concurrently. The present appeal has been filed impugning the judgment of
the trial court as the appeal under TADA lies directly to the Supreme
Court.
3. Mr. Agrawala, the learned counsel for the appellant has not argued the
matter on merits but has pointed out that in view of the above facts more
particularly that eleven out of 18 accused had been discharged and the two
co-accused of the appellant herein had been acquitted vide the impugned
judgment and the additional fact that the trial had continued for almost
twenty years and that the appellant had also undergone almost 11+ years of
the sentence and that he had made a confession before the SSP which showed
his remorse it was appropriate that the sentence be reduced to that already
undergone.
4. For the proposition that in a case of a confession made by a remorseful
rependant convict some leniency in the sentence was called for the learned
counsel has placed reliance on the judgment of this Court in Gurdeep Singh
alias Deep v. State (Delhi Admn.) (2000) 1 SCC 498. The learned Solicitor
General has, however, pointed out that the appellant was one of the prime
movers in the incident which had led to the death of Mir Mustafa and as
Section 2 of TADA provided for a life sentence, the appellant had already
been dealt with in a lenient way and no further latitude should be shown to
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him.
5. It is indeed true that a conviction under the TADA is a very serious
matter and calls for a deterrent punishment. At the same time, the facts of
each case cannot be ignored. We see that all the co-accused of the
appellant have either been acquitted or have not been brought to trial. We
also see from the record that the appellant has expressed his regrets for
the circumstance which had ultimately led to the murder of Mir Mustafa. The
trial court has given a positive finding that the appellant was only
involved with the abduction part and had nothing to do with the murder of
the MLA. We also see from the record that appellant has undergone more than
11+ years of the sentence after facing protracted a trial spread over
almost 20 years. We have also been told by Mr. Agrawal that he had been
released on bail for a period of 1+ years and during this period his
conduct and behaviour had remained exemplary. We also notice that in Gurdip
Singh’s case (supra) this Court observed as under:
"25. Before concluding we would like to record our conscientious
feeling for the consideration by the legislature, if it deem fit ad
proper. Punishment to an accused in criminal jurisprudence is not
merely to punish the wrongdoer but also to strike a warning to
those who are in the same sphere of crime or to those intending to
join in such crime. This punishment is also to reform such
wrongdoers not to commit such offence in future. The long procedure
and the arduous journey of the prosectuion to find the whole truth
is achieved sometimes by turning on the accused as approvers. This
is by giving incentive to an accused to speak the truth without
fear of conviction. Now turning to the confessional statement,
since it comes from the core of the heart through repentance, where
such accused is even ready to undertake the consequential
punishment under the law, it is this area which needs some
encouragement to such an accused through some respite may be by
reducing the period of punishment, such incentive would transform
more such incoming accused to confess and speak the truth. This may
help to transform an accused to reach the truth and bring to an end
successfully the prosecution of the case."
6. We find that the aforesaid observations would apply to the present case
as well.
7. We, accordingly, while dismissing the appeal, reduce the sentence from
14 years to that already undergone.
8. The appeal stands disposed of accordingly.