Crl.A. 342 of 2009                                                                                                                                                                                      1

PART-II         

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 342 OF 2009

 MOHD. MAQBOOL TANTRAY ..... APPELLANT

VERSUS

STATE OF J & K ..... RESPONDENT

O R D E R

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  

Terrorists  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

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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

Crl.A. 342 of 2009                                                                                                                                                                                      3

trial  had  continued  for  almost  twenty  years  and  

that the appellant had also undergone almost 11½  

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 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

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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 11½  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  

1½ 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

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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.

    ..................J      [HARJIT SINGH BEDI]

    ..................J      [A.K. PATNAIK]

NEW DELHI

Crl.A. 342 of 2009                                                                                                                                                                                      6

FEBRUARY 04, 2010.       

Crl.A. 342 of 2009                                                                                                                                                                                      7

    IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 342 OF 2009

 MOHD. MAQBOOL TANTRAY ..... APPELLANT

VERSUS

STATE OF J & K ..... RESPONDENT

O R D E R

We have  heard the  learned counsel  for the  

parties.

Vide  our  separate  reasoned  order,  we  have  

disposed of this appeal and reduced the sentence of  

the appellant from 14 years to the period already  

undergone.  It is stated by Mr. E.C. Agrawala, the  

learned  counsel  for  the  appellant  that  the  

appellant is presently in custody.  We direct that  

the appellant shall be set at liberty forthwith if  

not required in connection with any other case.   

The reasoned order to follow.   

    ..................J      [HARJIT SINGH BEDI]

    ..................J      [A.K. PATNAIK]

Crl.A. 342 of 2009                                                                                                                                                                                      8

NEW DELHI FEBRUARY 04, 2010.