(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA) 1. Learned counsel Mr.R.D.Makwana appears for the appellant, by way of legal aid, and the appellant is kept personally present in the Court. It was submitted, on instructions of the appellant, that the appellant having already undergone more than six years of imprisonment and even otherwise the appeal was sought to be pressed only for reduction of sentence in view of special facts and circumstances of the case.
2. The appellant is convicted for the offences punishable under Sections 307 and 504 of the Indian Penal Code and under Section 135 of the Bombay Police Act and sentenced to overall ten years of rigorous imprisonment with fine of Rs.5,000/, Rs.1,000/ and Rs.500/ for three offences, in terms of the impugned judgment and order dated 18.1.2006 of learned Additional Sessions Judge, Patan, in Sessions Case No.551 of 2002. The incident of assault by the appellant had taken place on 26.7.1996 at 12:30 in the night, wherein the victim was injured by the appellant out of a petty quarrel over playing cards in a public place among several residents of the same area. According to the medical certificate at Exh.31, following injuries were found on the body of the victim.
“(1) oblique incised wound over dorsum of (lh)hand from medial end of (lh) wrist to proximal interphalangel joint of (lh) index finger size – 20 cm X 1 cm X bone deep.
(2) Incised wound over post aspect of (lh) forearm length ¼ oblique in direction 4 cm X ½ cm X bone deep.
(3) Transverse incised wound over post aspect of (lh) forearm at the junction of lower ¼ and upper ¾. 3 cm X ½ cm X bone deep.
(4) CLW over posterolateral aspect of (lh) forearm at the junction of upper 2/3 and lower 1/3. Size 1.5 cm X ½ cm bone deep.
(5) Incised wound over (rh) frontal region anteropost indirection extending from a point 6 cm above lateral angle of (rt) eye.
(6) Transverse incised wound over post aspect of (lh) elbow. 5 cm X ½ cm X bone deep.
(7) Incised wound over post aspect of (rh) arm. 1 cm X ½ cm X muscle deep.
(8) Incised wound over (rh) parietal prominence semi lunar in shape concavity locally. 5 cm X ½ cm X bone deep.
Refd. To C.4 Ahmedabad. Report awaited. Injuries can be caused by No.4 – HBS No.(1) to (3) & (5) to (8) sharp cutting object.
Probable period of recovery within days/weeks/months, if no complication occurs.
can be ascertained on the basis of expert opinion.”
“INJURY CERTIFICATE ........................................
Description of injuries. Assaulted injury.
Stitched wound of size 10 cms on (rt) side front parietal region. X ray shall show liner – minimal depression in (rt) frontal bone.
CLW of size : 10 cms X 3 cms on dorsal aspect of wrist (lt) side (tendon deep) 2 small CLW on (lt) forearm of size 1 cm X 0.5 cm. An incised wound of size 3 cms X 1 cm at (lt) elbow.
A CLW of size 2 cm X 1 cm at (rt) side arm lower part.
(Rt) Humerus, 3rd, 4th, 5th metacarpal bones, Radiusulna (lt) side.”
3. It was submitted by learned counsel, Mr.Makwana, that the victim was required to take treatment for 18 days for the above injuries, as against which the appellant was undergoing rigorous imprisonment since last six years and no untoward incident has been reported against the appellant during the period while he was on bail or thereafter when he was released on temporary bail pending appeal or on furlough leave. Learned APP fairly conceded, on the basis of the jail report, that it was true that no adverse remark was found in the jail record against the appellant and he had regularly returned to jail in time, whenever he was released on temporary bail or furlough. It was further submitted and conceded by learned APP that the appellant was reported to have no criminal antecedent and he appears to be regretful for the incident in which the victim of the offence was seriously injured. It was also submitted that the case of the prosecution could not clearly establish an intention to kill the victim on the part of the appellant and the incident appears to have arisen out of sudden rage or quarrel on a petty matter of sitting or playing cards in the public place. Learned counsel, Mr.Makwana, also submitted that real punishment was actually suffered by two young children of the appellant, who had already lost their mother, and therefore, a lenient view was required to be taken in the peculiar facts of the case.
4. Having regard to the facts and circumstances and seriousness of the injuries inflicted by the appellant on the victim, the appellant appears to have behaved in an unduly harsh manner and that could not be viewed lightly. However, the term of imprisonment having been intended for reforming a person and that purpose having appeared to have already been served, the appeal is required to be partly allowed so as to reduce the term of sentence to seven and a half years. Accordingly, the impugned judgment and order are modified, while confirming the conviction, with the order that the appellant shall undergo rigorous imprisonment for a period of seven years and six months for the offence punishable under Section 307 of the Indian Penal Code and shall pay fine of Rs.100/ and in default undergo further simple imprisonment for a period of 15 days. He is sentenced to suffer six months of rigorous imprisonment for the offence punishable under Section 504 of the Indian Penal Code and sentenced to rigorous imprisonment for three months for the offence punishable under Section 135 of the Bombay Police Act and shall pay fine of Rs.100/ and in default undergo further imprisonment for a period of 15 days. All the sentences are ordered to run concurrently and the appellant shall be entitled to remission and other reliefs in accordance with law. As soon as the term of imprisonment is undergone, after deduction of period of remission, the appellant shall be set at liberty, if not required in connection with any other case. The appeal is accordingly partly allowed.
(D.H.Waghela, J.) *malek (N.V.Anjaria, J.)