THE STATE OF UTTAR PRADESH versus TRIBHUWAN & ORS.
[2017] 11 S.C.R. 1, Supreme Court of India, 2017
Outcome: Case Partly allowed (Granted)
Segment: Ratio
[2017] l 1 S.C.R. I 
THE STATE OF UTTAR PRADESH 
v. 
TRIBHUWAN & ORS. 
(Criminal Appeal No. 2437 of2010) 
NOVEMBER 06, 2017 
(R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.( 
A 
B 
Sentence/Sentencing - Conviction under s.325 !PC - lf 
accused is held guilty of commission of offence under s.325. 
C 
imposition of jail sentence and fine on accused is mandatory -
In 
the instant case. High Court was not right in setting aside the entire 
jail sentence of respondent No. 1 while upholding his conviction 
under s.325 !PC - High Court ought to have either upheld the 
award of jail sentence offour years awarded by the Sessions Court 
D 
or reduce the jail sentence to any reasonable term bui it had no 
jurisdiction to jitlly set aside the jail sentence and substitute it by 
imposing on(v fine of Rs. I0,0001- - In view ~f time consumed in the 
litigation (37 years) coupled with the findings of two courts below 
that respondent No. I did not cause any injmy to /he deceased and 
injured (PW-2). respondent No.Is conviction under s.325 !PC is 
E 
upheld and punishment ~l imprisonment of 40 days with fine of 
Rs.10,0001- and in default of payment of fine, to undergo one month 
rigorous imprisonment is awarded - Penal Code, 1860 - s.325 -
Code of Criminal Procedure. I 973 - s.428. 
Code of Criminal Procedure, !973 - s.428 - Scope of- Held: 
s.428 provides that the period of detention spent in jail as under-
triul or as convict will be set off against his total jail sentence once 
awarded lo
him in connection with the same offence - Jn the instant 
case, the period already undergone by respondent No. I (40 days) 
while he was in detention, as under-trial and as convict. was also a 
jail sentence and could be treated as jail sentence once awarded to 
respondent no. I under s.325 !PC. and acco,·dingly its benefit by 
way of set off could be given to him under s.428 of Code - Penal 
Code. 1860 - s.325. 
F 
G 
H
2 
SUPRBME COURT REPORTS 
[2017] l l S.C.R. 
A 
Partly allowing the appeal, the Court 
B 
c 
D 
E 
F 
G 
H 
HELD: l., So far as Scction 325 IPC is concerned, its reading 
would show that once the accused is held guilty of commission of 
offence punishuble under Section 325 IPC, then imposition of jail 
sentence and fine on the accused is mandatory. ln other words, 
the award of p1unishment would include both, i.e., jail sentence 
and line. So far as jail sentence is concerned, it may extend upto 
7 years as per Court's discretion whereas so far as fine amount is 
concerned, its quantum would also depend upon the Court's 
discretion. So f$r as Section 428 of Code is concerned, it provides 
that the period of detention spent in jail as under-trial or as convict 
will be set off against his total jail sentence once awarded to him 
in connection with the same offence. [Paras 22, 23](10-C-D] 
2. The High Court was, therefore, not right in setting aside 
the entire jail sentence of respondent No.I while upholding his 
conviction under Section 325 IPC. The High Court ought to 
have either upheld the award of jail sentence of four years awarded 
by the Sessions Court or reduce the jail sentence to any 
reasonable term but it had no jurisdiction to fully set aside the 
jail sentence and substitute it by imposing only fine of Rs.I 0,000/ 
-. The period :llrcady nnclergone by respondent No.I (40 clays) 
while he was in, detention, as under-trial and as convict, was also 
a jail
sentence and could be treated as jail sentence once awarded 
to respondent !No.I under Section 325 IPC, and accordingly its 
benefit by way of set off could be given to him under Section 428 
of Code. [Paras 25, 26)(11-D-E] 
3. In vie"' of the time consumed in the litigation (37 years) 
coupled with the findings of two courts below wherein it was held 
that rcsponclenl No.I did not cause any injury to the deceased 
and injured (PW-2), respondent No.1 's conviction under Section 
325 I PC is upheld and punishment of imprisonment of 40 clays 
with fine of Rs.10,000/- and in default of payment of fine, to 
undergo one month rigorous imprisonment is awarded. Since 
respondent No.J has already undergone the jail sentence of 40 
days partly as u:nder-trial and partly as convict, he is not required 
to undergo any further jail sentence in the case at hand. [Paras 
27, 28][11-E-H]
THE STATE OF UTTAR PRADESH v. TRIBHUWAN & ORS. 
3 
State of Maharashtra & Anr. v. Najakat Alia Mubarak 
A 
Ali (2001) 6 SCC 31l : (20011 3 SCR 600 - referred 
to. 
Case Law Reference 
[2001] 3 SCR 600 
referred to 
Para 24 
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 
243 7 of20 I 0. 
From the Judgment and Order dated 10.02.2006 passed by the 
High Court of Judicature at Allahabad in Criminal Appeal No. 211 of 
1982. 
Ratnakar Dash, Sr. Adv., Ms. Alka Sinha, Abhishek, Anuvrnt 
Sharma, Advs. for the Appellant. 
Sidhaith Dave, Ms.Jemtiben A.P., Senthil Jagadeesan, Ad vs. for 
the Respondents. 
The Judgment of the Court was delivered by 
ABHAY MAN OH AR SA PRE, J. I. This appeal is filed by the 
State against the judgment and order dated I 0.02.2006 of the High Court 
of Judicature at Allahabad in Criminal Appeal No.211 of 1982 whereby 
the High Court partly allowed the appeal Ii led by the accused persons 
and while upholding the conviction of the five accused interfered in the 
sentence and its quantum awarded to the accused persons by order 
dated 22.01.1982 passed by the !Vth Additional Sessions Judge, 
· Azamgarh in Sessions Trial No.132of1981. 
2. Having regard to the short controversy. which now remains for 
decision in this appeal as a result of subsequent events occurring in the 
case after the incident in question which took place way back in the 
year 1980, it is not necessary to set out the facts in detail except those 
which are relevant for the disposal of
the appeal. 
3. Six accused persons, (I) Tribhuwan (2) Sita Ram (3) Ram 
Suresh (4) Rajendra (5) Ram Vijay and (6) Jogendra were the residents 
of a village - Secrpatti District Azamgarh (UP). One Ram Lagan 
(deceased) was also the resident of same village. The houses of accused 
persons and Ram Lagan were situated in the same cluster and were in 
the close vicinity of each other. All the accused persons, Ram Lagan 
and his family members were known to each other. 
B 
c 
D 
E 
F 
G 
H
4 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2017] l l S.C.R. 
4. On 14.06.1980 around 8.00p.m., Tribhuwan was passing in front 
of Ram Lagan's house when pet dog ofRam Lagan sitting in front of his 
house started barklng on Tribhuwan, due to which Tribhuwan got infuriated 
and started hurling filthy abuses to Shobh Nath-son of Ram Lagan, his 
family members and Ram Lagan. who were sitting on the door steps of 
their house. 
5. This inci!fent, unfortunately, aggravated and led to filthy verbal 
exchanges betwe~n Ram Lagan, Shobh Nath and Tribhuwan. Tribhuwan 
then went to his house after threatening Ram Lagan and his son that he 
would come back soon to teach them a lesson. After sometime, 
Tribhuwan came back along with five persons, namely. Sita Ram. Ram 
Surcsh, Ram Vijay, Rajcndra and Jogendra with weapons (Pistol. Farsa. 
Lathi, Spear) in their hands. This incident attracted many persons living 
in the area and who were passing on th~ road. The altercation and the 
attack by the accu$ed persons resulted in causing injuries to Ram Lagan 
and one Baij Nath (PW-2). Both injured persons were taken to nearby 
hospital for treatment. After sometime, Ram Lagan succumbed to his 
injuries in the hospital whereas Baij Nath survived. 
6. After making necessary investigation. six accused persons, 
named above, wcne apprehended and put to trial for commission of the 
offences punishable under Sections 147, 148, 302, 324/149 and 325/149 
of the Indian Penal Code, 1860
(hereinafter referred to as "IPC") in 
Session Trial No.132of1981 before the lVth Additional Sessions Judge, 
Azamgarh. 
7. The Sessions Judge, by his order 22.01.1982, acquitted one 
accuscd-Jogcndra from all the charges whereas convicted remaining 
five accused and sentenced each of them as under: 
Name of the 
conviction 
sentence 
accused 
Jogendra 
acquitted 
Ram Vijay 
UIS 302 !PC 
Life imprisonment 
Sect11 •O 
RI for four years 
325/149 !PC 
Section 148 !PC 
RI for two years
THE STATE OF UTTAR PRADESH v. TRIBHUWAN & ORS. 
5 
[ABHAY MANOHAR SAPRE. J.] 
Tribhuwan 
Section 324/ 149 !PC 
RI for two years 
A 
Section 3251149 !PC 
Section 148 !PC 
RI for four years 
RI for two years 
B 
Sita Ram 
Section 324/149 !PC 
RI for two years 
Section 325/ 149 !PC 
Section 147 !PC 
RI for four years 
c 
RI for one year 
Ram Surcsh 
Section 147 !PC 
RI for one year 
Section 324/149 IPC 
D 
Section 325/.149 IPC 
RI for two years 
RI for four years 
E 
Rajendra 
Section 147 !PC 
RI for one year 
Section 324/ 149 !PC 
RI for two years 
Section 325/149 IPC 
RI for four years 
F 
. 
8. The five accused, namely, Tribhuwan, Sita Ram, Ram Suresh, 
Rajendra and Ram Vijay, who suffered conviction and sentence, filed 
G 
Criminal Appeal No.211/1982 before the High Court. So far as the 
State is concerned, they did not file any cross appeal against that part of 
the order of the Sessions Court by which one accused person-Jogendra 
was acquitted of the charges and other accused persons though convicted 
for other offences but stood acquitted of the charge of murder. As a 
H
6 
SUPREME COURT REPORTS 
(2017] l l S.C.R. 
A 
consequence, tlje order of the Sessions Judge so far as the State was 
concerned, became final. 
9. The High Court. by impugned judgment, partly allowed the 
appeal and whil~ upholding the conviction of the five accused interfered 
in the sentence and its quantum awarded to each accused persons. The 
B 
High Comt modified the sentence of the five accused as under: -
Nnn1c of the conviction 
sentence 
accused 
Ram Vijay 
Section 304 Part I RI for I 0 years 
c 
!PC 
Fine of Rs,3000/-
In 
Section 148 !PC 
default of payment of 
fine, to undergo RI for 
three months 
Section 325/149 !PC 
Fine of Rs.10,000/-
In 
default of payment of 
D 
fine, to undergo RI for 
one year 
Tribhuwan 
Section 148 !PC 
Fine of Rs,3000/-
In 
E 
default of payment of 
fine, to undergo RI for 
three months 
Section 325/ I 49 !PC 
Fine of Rs. I 0,000/-
In 
I 
default of payment of 
fine, to undergo RI for 
F 
one year 
Sita Ram 
Section 147 !PC 
Fine of Rs. I 000/-
In 
default of payment of 
fine. to undergo RI for 
G 
one month 
Section 3_J/149 !PC 
Fine of Rs.I 0.000/-
In 
default of payment of 
fine, to undergo RI for 
one year 
H
THE STATE OF UTTAR PRADESH v. TRIBHUWAN &. ORS. 
7 
(ABf!AY MANOHAR SAPRE, J.] 
RamSuresh 
Section 147 IPC 
Fine of Rs.1000/-
In 
default of payment of 
fine, to undergo RI for 
one month 
Section 325/149 !PC 
Fine of Rs.10,000/-
In 
default of payment of 
fine, to undergo RI for 
one year 
Rajendra 
Section 147 !PC 
Fine of Rs.1000/-
In 
default of payment of 
fine, to undergo RI for 
one month 
Section 325/149 !PC 
Fine of Rs.I 0,000/-
In 
default of payment of 
fine, to undergo RI for 
one year 
10. The State, however, felt aggrieved of the judgment of the 
High Court, filed this appeal by way of special leave before this Court. 
11. During pendency of this appeal, two respondents, namely, Sita 
Ram (respondent No.2) and Rajendra (respondent No.4) died. As a 
consequence thereof, the appeal against Sita Ram and Rajendra stood 
abated. Ram Suresh (respondent No.3) also died and the appeal stood 
dismissed as abated against him also by this Court's order dated 
A 
B 
c 
D 
E 
26.07.2010. 
F 
12. So far as the appeal against Ram Vijay (respondent No.5) is 
concerned, the same was also dismissed by this Court's order dated 
. 26.07.2010 for non-compliance of the orders by the appellant (State) 
qua Ram Vijay. As a consequence thereot; the appeal against Ram 
Vijay also does not survive for its consideration on merits. 
G 
13. This appeal is now survived only against Tribhuwan (respondent 
No. I) for its consideration on merits. 
14. The short question, which arises for
consideration in this appeal, 
is whether any case is made out by the State against accused person-
H
8 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
(2017] l l S.C.R. 
Tribhuwan (respon\ient No. I) seeking any kind of interference in his 
order of conviction and acquittal or in award of sentence and. if so, to 
what extent? 
15. Heard Mr. Ratnakar Dash. learned senior counsel for the 
appellant-Stale and Mr. Sidharth Dave. learned counsel for the 
respondent. 
16. Learned ~ounsel for the appellant (State) has argued only one 
legal point in support of the appeal. According to learned counsel, the 
Sessions Judge righttly convicted respondent No. I (Tribhuwan) for an 
offence punishable under Section 325 read with Section 149 IPC and, 
accordingly, award¢d rigorous imprisonment of four years to him but the 
High Court though was right in upholding the conviction fell in error in 
setting aside the jail,sentencc of four years awarded to him by the Sessions 
Court and substituting the same by imposing only a fine of Rs. I 0,000/-. 
17. Learned counsel urged that imposition of jail sentence and 
fine both is mandatory once the accused is held guilty for the offence 
punishable under Section 325 !PC which may extend upto 7 years. 
Learned counsel urged that the High Court, in its discretion, could reduce 
the award of jail sentence to any period less than four years but, in no 
case, it could set aside the entire jail sentence and substitute it by awarding 
a sentence of fine qfRs.10.000/-. It is not permissible in law and hence 
to this extent, the judgment of the High Court
deserves to be set aside 
and the order of the Sessions Judge be restored. 
18. in reply, the submission of learned counsel for respondent 
No. I (accused-Tribhuwan) was that admittedly respondent No. I has 
undergone 40 da)<S' jail sentence partly as under-trial prisoner and 
remaining after suffering tl1e conviction from the Sessions Court. It 
was, therefore, his submission that such imprisonment can be taken as 
imposingjail sentence of 40 days to respondent No. I under Section 325 
!PC. In other words, his submission was that though the High Court 
instead of awardinf any jail sentence awarded only the fine of Rs. I 0.000/ 
- but since respondent No.1 has, in the meantime, already undergone 40 
days' jail sentence partly after his arrest pending investigation, inquiry 
and then partly during pendency of trial and appeal, he should be held to 
have been awarded jail sentence for 40 days for an offence punishable 
under Section 325 IPC. Learned counsel urged that respondent No. I 
would thus be enti'tled to take benefit of set off of the period as already
THE STATE OF UTTAR PRADESH v. TRIBHUWAN & ORS. 
[ABHAY MANOHAR SAPRE, J.] 
undergone by him under Section 428 of the Code of Criminal Procedure, 
1973 (hereinafter referred to as "the Code") once he is awarded jail 
sentence to that extent on his ·conviction. 
19. Learned counsel further pointed out that this Court should 
also take into consideration the two circumstances appearing in the case, 
namely, the incident in question occurred in 1980 and in the meantime, 
37 years has passed in prosecuting this litigation, and second, both the 
Courts below, on appreciation of evidence, have come to a conclusion 
that no injury was caused by respondent No. I to the deceased and to 
injured Baij Nath (PW-2). It was, therefore, his submission that the 
interest of justice would, accordingly, be met, if respondent No. I's 
conviction under Section 325 !PC is maintained by awarding him jail 
sentence of what he has already undergone, i.e., 40 days with fine amount 
of Rs. I 0,000/- which has already been awarded by the High Court. 
Such order of conviction would be in conformity with the requirement of 
Section 325 of the IPC. 
20. Having heard learned counsel for the parties and on perusal 
of the· record of the case, we find force in the submission of the learned 
counsel for the appellant and also of respondent No. I (Tribliuwan). 
21. Section 325 oflPC and Section 428 of the Code are relevant 
for deciding the appeal. These Sections read as under: 
Section 325 of IPC 
"325.
Punishment for voluntarily causing grievous hurt.-
Whoever, except in the case provided for by section 33S, 
voluntarily causes grievous hurt, shall be punished with 
imprisonment of either description for a term which may 
extend to seven years, and shall also be liabie to fine." 
Section 428 of Cr.PC 
"428. Period of detention undergone by the accused to be 
9 
A 
B 
c 
D 
E 
F 
set off against the sentence of imprisonment.-Whcrc an. 
accused person has, on conviction, 'been sentenced to 
G 
imprisonment for a term, not being imprisonment in default 
of payment of fine, the period of detention, if any, undergone 
by him during the investigation, inquiry or trial of the same 
case and before the date of such conviction, shall be set off 
against the term of imprisonment imposed on him on such 
H
IO 
A 
B 
c 
D 
E 
F 
SUPRlME COURT REPORTS 
[2017 j I! S.C.R. 
conviction, and the liability of such person to undergo 
imprisonment on such conviction shall be restricted to the 
remainder, if any, of the term of imprisonment imposed on 
him: 
Provided that in cases referred to in section 433A, 
such period of detention shall be set off against the period 
of fourteen years referred to in that section." 
22. So far as Section 325 IPC is concerned. its reading would 
show that once the accused is held guilty of commission of offence 
punishable under Section 325 IPC. then imposition of jail sentence and 
fine on the accused is mandatory. In other words, the award of 
punishment wo4ld include both. i.e., jail sentence and fine. So faras jail 
sentence is concerned, it may extend upto 7 years as per Court's discretion 
whereas so far as fine amount is concerned, its quantum would also 
depend upon the Court's discretion. 
23. So far as Section 428 of Code is concerned, it provides that 
the period of detention spent in jail as under-trial oras convict will be set 
off against his total jail sentence once awarded to him in connection with 
the same offence. 
24. This ~ourt {Three Judge Bench) had the occasion to interpret 
Section 428 of the Code in the case of State of Maharashtra & Anr. 
vs. NajakatAlia Mubarak Ali, (2001) 6 SCC 311 wherein this Court 
speaking through Justice K.T. Thomas representing m<tjority view held 
as under: 
"15 ............ We may now decipher the
two requisites 
postulated in Section 428 of the Code: 
(/) During the stage of investigation, enquiry or trial of a 
particul41r case the prisoner should have been in jail at least 
for a certain period. 
(2) He should have been sentenced to a term of 
G 
imprisonment in that case. 
H 
H!. If the above two conditions are satisfied then the 
operative part of the provision comes into play i.e. if the 
sentence of imprisonment awarded is longer than the period 
of detention undergone by him during the stages of
THE STATE OF UTTAR PRADESH v. TRIBHUWAN & ORS. 
(ABHAY MANOHAR SAPRE, J.] 
investigation, enquiry or trial, the convicted person need 
undergo only the balance perio
0d of imprisonment after 
deducting the earlier period from the total period of 
imprisonment awarded. The words ''if any" in the section 
amplify that if there is no balance period left after such 
deduction the convict will be entitled to be set free from 
jail, unless he is required in any other case. In other words, 
if the convict was in prison, for whatever reason, during 
the stages of investigation, egquiry or trial of a particular 
case and was later convicted and sentenced to any term of 
imprisonment in that case the earlier period of detention 
undergone by him should be counted as part of the sentence 
imposed on him." 
11 
A 
B 
c 
25. In our considered opinion, the High Cou11 was, therefore,not 
right in setting aside the entire jail sentence of respondent No. I while 
upholding his conviction under Section 325 !PC. The High Court. in our 
view, ought to have either upheld the award of jail sentence of four 
D 
years awarded by the Sessions Court or reduce the jail sentence to any 
reasonable term but it had no jurisdiction to fully set aside the jail sentence 
and.substitute it hy imposing only fine of Rs. !0,000/-. 
26. As rightly argued by the learned counsel for respondent No. I, 
the period already undergone by respondent No.I (40 days) while 
E 
respondent No. I was in detention, as
under-trial and as convict, was 
also a jail sentence and could be treated as jail sentence once awarded 
to respondent No.I under Section 3251PC, and accordingly its benefit 
by way of set off could be given to hi.m under Section 428 of Code. 
27. In our considered opinion, having regard to the time consumed 
F 
in the litigation (37 years) coupled with the findings of two Courts below 
wherein it was held that respondent No.I did not cause any injury to the 
· deceased and injured Baij Nath (PW-2), we arc inclined to uphold 
respondent No.l's conviction under Section 325 !PC and award to 
respondent No. I's punishment of imprisonment of 40 days with fine of 
Rs.10,000/- and in default of payment of fine, to undergo one month 
G 
rigorous imprisonment. 
28. Since respondent No. I has already undergone the jail sentence 
of 40 days partly as under-trial and partly as convict, he is not required 
to undergo any further jail sentence in the case at hand. 
H

12 
SUPRfME COURT REPORTS 
[2017] l l S.C.R. 
A 
29. Respondent No.I, however, claims to have deposited a fine 
amount ofRs. l 0,000/- imposed by the High Court. If that be so then he 
· need not undergo any more jail sentence. However, this fact must be 
verified by the Sessions Court on receipt of this judgment. 
30. The appeal thus is allowed in part. The impugned judgment is 
B 
modified to the ~xtent indicated above. 
Devika Gujral 
Appeal partly allowt·d.