The court has the discretion to modify a sentence based on mitigating circumstances and offers of compensation, even when affirming the conviction.

S.P. Garg, J. (Oral)

1. Kayyum (the appellant) impugns the legality and correctness of a judgment dated 18.11.2010 in Sessions Case No.43/09 arising out of FIR No.425/2002 registered at Police Station New Seelam Pur by which he was held guilty for committing offence under Section 307 IPC and 25 Arms Act. By an order on sentence dated 19.11.2010, he was awarded RI for seven years with fine Rs.5,000/- under Section 307 IPC and RI for one year with fine Rs.1,000/- under Section 25 Arms Act.

2. Allegations against the appellant were that on 08.12.2002 at 02.45 p.m. in front of MCD office near Pragati Library, Double Storey, Seelam Pur, he inflicted injuries to Mohd.Firoz Khan by firing at him with a country made pistol in an attempt to murder him. On 04.01.2003, the appellant was found in possession of a desi katta in contravention of the notification and provisions of Arms Act. During investigation, statements of witnesses conversant with the facts were recorded. The exhibits were sent to Forensic Science Laboratory for examination. After police investigation, a charge-sheet was filed in the court against the appellant; he was duly charged; and brought to trial. The prosecution examined 17 witnesses to prove his complicity in the crime. In 313 statement, he denied the incriminating circumstances and pleaded false implication. He did not prefer to lead any evidence in defence. The trial resulted in his conviction as aforesaid. Being aggrieved and dissatisfied, the appellant has preferred the appeal.

3. During the course of hearing of the appeal, appellant’s counsel on instructions stated at Bar that the appellant has opted not to challenge the findings of the trial court on conviction and has opted to accept it voluntarily. He, however, prayed to modify the sentence order as the appellant has remained in custody for about four and a half years. He is not a previous convict and has six children to take care of them. He offered to pay reasonable compensation to the complainant. Learned APP has no objection to it.

4. Since the appellant has given up challenge to the findings on conviction recorded by the trial court and has accepted it voluntarily in view of the overwhelming evidence in the statement of the complainant coupled with medical evidence, his conviction under Section 307 IPC and 25 Arms Act is affirmed. Nominal roll dated 17.06.2013 reveals that he was under detention for the last two years, seven months and nineteen days besides remission for eleven months and nineteen days as on 01.07.2013. He was granted interim bail on three occasions and there are no allegations of its misuse. The fine has since been deposited. The appellant is not a previous convict and is not involved in any criminal case. His overall jail conduct is satisfactory. He has suffered ordeal of trial/appeal for about ten years. At the same time the record reveals that the injuries were inflicted to the complainant by an unauthorised fire arm on the vital organ. The nature of injuries was opined as ‘dangerous’ by the examining doctor. The appellant did not give plausible explanation for inflicting injuries to the complainant who was acquainted with him prior to the incident. It was a narrow escape for the victim.

5. The prison term for seven years awarded by the trial court cannot be termed excessive. However, considering the mitigating circumstances and the offer for payment of reasonable compensation, the sentence is modified and the substantive sentence of RI for seven years is reduced to RI for six years. Other terms of the sentence order are left undisturbed. The appellant shall deposit Rs.25,000/- within four weeks in the trial court to be paid as compensation to the victim- Mohd.Firoz Khan. The trial court shall release the compensation amount after due notice to the victim.

6. The appeal stands disposed of in the above terms. Trial Court record along with a copy of this order be sent back forthwith. A copy of the order be sent to Jail Superint