(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal has been preferred by the State for enhancement of punishment imposed upon the original accused No.1 for the offence punishable under Section 307 of IPC with 10 years' R.I., and a fine of Rs.5,000/- and one year's further S.I., for default in payment of fine. The other sentences have also been imposed upon the original accused No.1 for the offence under Sections 332, 323 of IPC and 25(1)B.A., of the Arms Act.
2. We have considered the record of evidence, which has been made available by the learned APP during the course of hearing. We have considered the reasons recorded by the learned Sessions Judge for imposition of sentence. We have also heard the learned APP for the State.
3. Be it recorded that in the present appeal, we are not required to examine as to whether conviction held of the original accused No.1 for the offence under Section 307 of IPC and other offences by the learned Sessions Judge could be maintained in the eye of law or not, since there is no conviction appeal up till now brought to our notice hence, even otherwise also that question may not arise at this stage. In the event the original accused, who has been convicted, prefers appeal against the judgement and order of conviction, such aspect may be examined by the Court at the relevant point of time.
4. In the present appeal, the only question, which may be required to be considered by us would be whether sentence imposed by the learned Sessions Judge for the offence under Sections 307, 323, 32, and 114 of IPC read with Section 25(1)B.A., of Arms Act could be said as on lower side or not and whether there is any justification for enhancing the sentence on the premise that the accused has been convicted for the charged offence or not.
5. The learned APP has mainly submitted that once the offence under Section 307 of IPC was proved and the accused No.l was convicted for the offence under punishable Section 307 of IPC, the learned Sessions Judge ought to have imposed the maximum sentence of life-imprisonment considering the facts and circumstances of the case. It was submitted that the original accused No.1 is a habitual offender and he is stated to have been involved in other theft cases. She also submitted that the firing was made, weapon was used, one of the persons got injured and one police officer also sustained injury and, therefore, in her submission, keeping in view the said facts and circumstances, it was a case calling for maximum sentence and imposition of ten years' sentence would be inappropriate.
6. The record shows that the injury sustained, though may be with the bullet, the person has remained in hospital for seven days only. It is not the case that any permanent disability has resulted on account of the injury sustained by the victim. Further, the police officer has received injury, which is abrasion and no serious injury is received. Under these circumstances, even if the gravity of the offence is to be considered, it cannot be equated with the maximum sentence as sought to be canvassed. Further, mere fact that the accused is involved in other theft cases, per se, cannot be said as a ground for imposition of maximum sentence. It is not brought to our notice that he has been convicted in similar offence under Section 307 of IPC in the past. The learned Sessions Judge, while recording the reasons for imposition of sentence, has found that since the accused had taken law in his hand and tried to overreach the law, the appropriate sentence would be ten years' R.I.
7. In our view, in any case, even if the contention of the State are considered and examined, it would not call for any sentence exceeding ten years. Hence, there is no case for enhancement of sentence and the appeal of the State is meritless and, therefore, deserves to be dismissed. We may record that we have not even examined the aspect as to whether it is appropriate to impose sentence of ten years considering the facts and circumstances of the case, but such aspect, we leave it open to be examined in the event any appeal is preferred by the convict against the conviction or imposition of sentence. In any case, since the present appeal is limited to the aspect for enhancement of sentence i.e. for the period exceeding ten years, we have restricted our judicial scrutiny to that extent only.
8. Accordingly, as the appeal is meritless, hence, the same is dismissed.
(Jayant Patel, J.) (Mohinder Pal, J.) vinod