Jitendra vs State of U.P.

Shri Kant Tripathi,J.

The appellant Jitendra has preferred this appeal against the judgment and order dated 26.7.2006 passed by the Additional Sessions Judge, Fast Track Court No.1, Kannauj, in S.T. No. 15 of 2001, State versus Jitendra, whereby the learned Additional Sessions Judge has convicted and sentenced the appellant under section 307 IPC to under go rigorous imprisonment of 7 years and also to pay a fine of Rs. 5,000/ and in default of payment of fine to undergo additional simple imprisonment of six months.

It is alleged that on 6.5.2000, at about 4.30 PM, the appellant Jitendra shot a fire on the injured Madan Singh. Consequently the injured sustained a serious fire arm injury. Witnesses Balak Ram and Ram Bharose arrived at the scene of occurrence and witnessed the occurrence. The injured was initially taken to Vinod Dikshit Chikitsalaya, Kannauj for treatment and after that he was referred to the Medical College, Kanpur. The FIR was lodged at the police station Kannauj on which basis the police investigated the case and submitted a charge sheet against the appellant. On medical examination, PW6 Dr. Vinay Krishna found an injury on left side of the chest of the injured, which had also caused an injury in the left lung. The injured was admitted in the Medical College, Kanpur for treatment. According to the aforesaid doctor, the injury was serious and dangerous to life and was caused with a fire arm.

The appellant was charged under section 307 IPC. He denied the charge and claimed to be tried.

The prosecution examined as many as six witnesses in support of its case. PW1 Ram Bharose and PW2 Balak Ram are eye witnesses but they have not supported the prosecution story. PW3 Madan Singh is the injured witness, who has supported the prosecution story in the witness box. PW6 Dr. Vinay Krishna has proved the aforesaid fire arm injury sustained by the injured PW3 Madan Singh. Other witnesses namely, PW4 Raj Narayan and PW5 J.B. Lal are formal witnesses.

The defence of the appellant was that the murder of his father Ram Adhar was committed by the injured and he was an eye witness of that occurrence. The instant case has been concocted by way of retaliation.

The learned Additional Sessions Judge found the charge under section 307 IPC proved beyond all reasonable doubts against the appellant and accordingly convicted and sentenced him.. The charge under section 506 IPC was however not found proved and the appellant was accordingly acquitted of the charge under section 506 IPC.

The learned counsel for the appellant has not pressed the appeal on merit and conceded that the finding of guilt recorded by the Additional Sessions Judge is perfectly correct and is based on proper appraisal of the evidence on record. The occurrence in question took place in the broad day light and the appellant had a motive to attack on the injured because the appellant''s father was allegedly murdered by the injured. The testimony of the injured (PW3 Madan Singh) could not be shaken despite lengthy cross examination. There does not appear to be any reason for him to exonerate the real assailant and implicate the appellant if he had not assaulted him. In view of the fact that the occurrence took place in the broad day light, there was no question of any mistake in identifying the appellant. More so, the statement of the injured has been corroborated by the medical evidence of PW6 Dr. Vinay Krishna, therefore, the finding of the learned Additional Sessions Judge that the charge under section 307 IPC was proved beyond all reasonable doubts, is perfectly correct and requires no interference.

In regard to the quantum of sentence, the learned counsel for the appellant submitted that the sentence recorded by the Additional Sessions Judge in view of the facts and circumstances of the case is very excessive. More so, the appellant is presently in jail from 2006. He had been in jail earlier before being released on bail. It may be mentioned that the appellant was a young person of 22 years at the time of the occurrence and had no criminal antecedents. It appears that he assaulted the injured by way of retaliation of the murder of his father. In view of facts and circumstances of the case in which the crime was committed, a lenient view seems to be taken in regard to the sentence. In my view it is just and expedient to reduce the sentence from seven years to five years.

The appeal is partly allowed. The conviction of the appellant Jitendra under section 307 IPC is upheld but the sentence of imprisonment is reduced from seven years to five years. The appellant shall be extended the benefit of section 428 CrPC, while calculating the period of sentence.

Let a copy of this judgment along with the lower court record be transmitted to the learned Additional Sessions Judge, Kannauj for compliance.