Kuka S/o Bhamra @ Bhanwar lal vs State of Rajasthan

The present criminal appeal has been filed by the appellant under Section 374(2) Cr.P.C. against the judgment dated 19.09.2017 passed by learned

Addl. Sessions Judge No.5, Udaipur in Sessions Case No. 43/2016 by which the learned Judge convicted the appellant as under :-

Under Section 307 IPC = Seven years R.I. alongwith fine of Rs. 5000/-, in default of fine to undergo one month S.I.

Under Section 324 IPC = Three years S.I and fine of Rs. 1000/-, in default of fine to further undergo 10 days S.I.

Under Section 341 IPC = One month S.I and fine of Rs. 200/-, in default of payment of fine, to undergo 5 days S.I.

Brief facts of the case are that the complainant Bhurilal (PW/2) filed a written report before the Police Station Gogunda on 19.09.2013 which is

marked as Ex.P/2 in which he mentioned that his brother Kuka after consuming liquor used to daily abuse him and his family. On the previous day, he

went to take water from Kolo Bawji, at that time, accused appellant Kuka stopped him and inflicted axe blow on his left shoulder and back side and

ran away.

On this report, the police registered a case for offence under Section 341, 323 IPC and started investigation. After investigation, the police filed

challan against the present appellant for offence under Section 307, 324, 341 IPC before the court of Civil Judge (JD) and Judicial Magistrate,

Gogunda. Thereafter, the case was transferred for trial before the court of Additional Sessions Judge No.5, udaipur where the charges were framed

for the offence under Section 307, 324 and 341 IPC.

During the course of trial, the prosecution examined 14 witnesses and various documents were also exhibited. Thereafter, statement of appellant

under section 313 Cr.P.C was recorded. No witness was examined on the defence side.

Upon conclusion of the trial, the learned trial court vide impugned judgment dated 19.09.2017 convicted the appellant for the offences mentioned

earlier.

Learned counsel for the appellant at the threshold submits that he does not challenge the finding of conviction but since the accused appellant is behind

the bars from 10.12.2013 and thus remained in custody for almost five years, therefore, it is prayed that the substantive sentence awarded to the

appellant for the aforesaid offences may be reduced to the period already undergone by him.

On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the appellant. The learned PP submitted

that there is neither any occasion to interfere with the sentence awarded to the accused appellant nor any compassion or sympathy is called for in the

said case.

I have perused the evidence of the prosecution as well as defence and the judgment passed by the trial court regarding conviction of the accused-

appellant. The occurrence relates back to the year 2013 and undisputedly, the appellant has so far undergone a period of about 05 years in custody so

also suffered the agony and trauma of protracted trial. On perusal of the injury report, it is evident that the complainant received only two injuries out

of which one injury was found to be grievous in nature and further the complainant as well as accused are brothers. Thus, looking to the over-all

circumstances and the fact that the appellant has remained behind the bars for about 05 years, it will be just and proper if the sentence awarded by the

trial court for offence under Section 307, 324, 341 IPC is reduced to the period already undergone by him.

Accordingly, the appeal is partly allowed. While maintaining the appellant’s conviction and sentence for offence under Sections 307, 324, 341 IPC,

the sentence awarded to him is reduced to the period already undergone, however, the fine imposed by the learned trial court is kept intact with

default stipulation.