Hari Kishan vs State of U.P.

Akhtar Husain Khan, J.—Present appeal has been filed by accused appellant Hari Kishan under section 374(2) Cr.P.C. against judgement and order dated 7.7.2008 passed by learned Session Judge, Auraiya in S.T. No. 178 of 2001 (State Vs.Hari kishan) arising out of Crime No. 19 of 2000, under sections 307 I.P.C. and 3(2)(5) S.T./S.T. Act, Police Station Phaphoond, District Auraiya, whereby learned Session Judge, Auraiya has convicted accused appellant for offence punishable under sections 307 I.P.C. and has sentenced him thereunder to rigorous imprisonment for ten years and fine of Rs. 2000/-. Learned Session Judge, Auraiya has further ordered that in default of payment of fine accused appellant shall under go further imprisonment for six months. Shri Satya Dheer Singh Jadaun appeared for accused appellant. Shri Jai Krishna Upadhyaya, learned A.G.A. appeared for State of U.P.

I have heard learned counsel the parties and have gone through records of the case.

In brief prosecution case is that on 23.1.2000 at about 9.00 A.M. accused appellant Hari Kishan went to the house of Ramlal nephew of complainant Nand Ram. He called Ram Lal and took him to his house. Thereafter having entered into his house he fired at Ramlal which caused injury in stomach of Ramlal. Ramlal raised alarm, whereupon complainant Nand Ram, Shiv Prasad, wife of Ramlal, wife of Tej Singh and several other persons of village rushed to spot and tried to catch accused Hari Kishan but showing Tamancha he ran away.

According to F.I.R. Exhibit Ka.1 accused Hari Kishan has caused fire arm injury to Ramlal with intention to kill him due to enmity.

F.I.R. Exhibit Ka.1 was lodged on the same day at 9.45 A.M. in Police Station Phaphoond by complainant Nand Ram whereupon Crime No. 19 of 2000, under sections 307 I.P.C. and 3(2)(5) S.T./S.T. Act was registered against accused applicant Hari Kishan and injured Ram Lal was sent for medical examination. Investigation was done by police and after having completed investigation police submitted charge sheet against accused appellant for offences punishable under sections 307 I.P.C. and 3(2)(5) S.T./S.T. Act.

Learned Magistrate took cognizance and after compliance of Section 207 Cr.P.C. committed the case to the court of session for trial, whereupon S.T. No. 178 of 2001 (State Vs.Hari kishan) was registered in session court of District Auraiya. Thereafter learned Session Judge, Auraiya framed charges against accused appellant for offences punishable under sections 307 I.P.C. and 3(2)(5) S.T./S.T. Act

Accused appellant pleaded not guilty and claimed to be tried.

Prosecution examined P.W.1 injured Ram Lal, P.W.2 Shiv Prasad, P.W.3 Vinod Kumar, P.W.4 Constable Shiva Nand, P.W.5 Dr. S.P. Singh, P.W.6 retired C.O. Ajay Singh and P.W.7 Deputy S.P. Shrawan Kumar Singh.

After prosecution evidence statement of accused was recorded under section 313 Cr.P.C. Accused appellant has stated in his statement under section 313 Cr.P.C. that he has been falsely implicated. He has further stated that injured Ramlal himself has cutta in his waist and due to sudden fire he has sustained injury.

No evidence was adduced on behalf of accused appellant in defence.

Learned Session Judge, Auraiya heard arguments of the parties and passed impugned judgement and order dated 7.7.2008 whereby he has convicted and sentenced accused appellant as mentioned above.

Learned counsel for accused appellant contended that he is not challenging conviction recorded by trial court. He is contesting appeal on the point of sentence only.

Learned counsel for accused appellant contended that sentence awarded by trial court is excessive because accused appellant has no previous criminal history. A lenient view should be taken for awarding sentence.

Learned counsel for accused appellant contended that benefit of mandatory provision of Section 428 Cr.P.C. should be given to accused appellant.

Learned A.G.A. contended that sentence awarded by trial court to accused appellant is appropriate but he conceded that accused appellant should be given benefit of Section 428 Cr.P.C.

I have considered the submissions made by learned counsel for the parties.

After having considered contentions raised by learned counsel for accused appellant as well as evidence on record conviction recorded by trial court against accused appellant for offence punishable under section 307 I.P.C. is upheld.

Neither previous conviction nor previous criminal history of accused appellant has been reported by prosecution.

Considering whole facts and circumstances of the case as well as nature of offence, I am of the view that sentence of rigorous imprisonment awarded by trial court to accused appellant should be reduced to seven years rigorous imprisonment and benefit of Section 428 Cr.P.C. should be given to accused appellant.

In view of above, appeal is allowed partly on point of sentence and sentence awarded by trial court is modified to the extent that accused appellant Hari Kishan is sentenced to rigorous imprisonment for seven years with fine of Rs. 2000/- for offence under section 307 I.P.C. Period of detention already undergone by accused appellant in this crime shall be set off against term of imprisonment awarded to accused appellant as provided by Section 428 Cr.P.C. Remaining part of sentence awarded by trial court is upheld.

Let copy of judgement be sent to trial court for sending revised conviction warrant.

Lower court record shall be returned to the concerned court immediately.