IMPORTANT POINT
The main legal point established in the judgment is the consideration of mitigating circumstances in modifying the sentence, based on the appellant's age, time spent in custody, and lack of criminal antecedents.

JUDGMENT :

DEEPAK ROSHAN, J.

1. Heard learned counsel for the parties.

2. This appeal is directed against the judgment of conviction and order of sentence dated 04.08.2004, passed by the learned Additional Sessions Judge-cum-Fast Track Court-IV, Garhwa, in Sessions Trial No. 343 of 1998, whereby the appellant was convicted for the offences punishable under sections 341 IPC and sentenced to undergo Simple Imprisonment for 6 months, under Section 354 IPC for one year R.I. under section 307 IPC to undergo R.I. for 7 years and to pay a fine of Rs. 1000/- and in default, to suffer S.I. for one year and under section 27 of the Arms Act for 3 year R.I. and to pay a fine of Rs. 500/- and in default to suffer S.I. for six months, all the sentences shall run concurrently.

3. The prosecution case in brief is that on 18.9.97 at 2 P.M. the informant along with his wife had gone to Garda Jungle where Krishna Baitha came armed with Bhartuwa gun and asked them as to why did they cut forest wood without permission whereupon wife of the informant begged and apologized for the fault upon which Krishna Baitha asked the informant’s wife to have sexual intercourse with him, otherwise he would shoot both of them. In the meantime one co-villager namely, Sohar Mahra arrived, who after, learning the entire story asked the informant’s wife to go to home with the woods and thereafter he along with informant went to the jungle and while they were returning with the bundle of woods, when they reached near, Ladduwa river, Krishna Baitha wrongfully restrained them and threatened to shoot, whereupon the informant fled away. When the wife of informant reached her house she complained that, while she was crossing the Ladduwa river Krishna Baitha molested her, whereupon hearing her hulla shepherds came there, seeing which Krishna Baitha fled away.

Thereafter, it is alleged that on 19.9.97 while the informant was returning with his bundle of woods Krishna Baitha fired upon him with his Bhartuwa gun, which caused injury near abdomen and left elbow, then the informant brought Krishna Baitha to village Mimiya and narrated the story to Gul Mohamad (P.W7- tendered), Muneshwar Chowdary (not examined) and Munshi Mahra (acquitted) then Munshi Mahra took Krishna Baitha along with his gun and assured to produce the same before the administration, but the informant latter came to know that the said Munshi Mahra has released Krishna Baitha but retained his gun.

4. Learned senior counsel for the appellant submits that the I.O. has not been examined in this case. He further submits that out of 7 PWs. examined, 2 are informant and his wife who are highly interested witnesses. So far PW-2 is concerned he has not stated about firing although he claims to be an eye witness. He further submits that the seizure witnesses have turned hostile whereas independent witnesses i.e. PW-7 has been tendered. As a matter of fact, except the informant, none of the witnesses have stated about firing. He submits that no TIP done even though the witnesses have claimed to identify upon seeing. He submits that the Doctor who examined injured has found simple injury and there is no any ballistic report/sergeant major report with regard to the working/non-working condition of the alleged weapon. He lastly submits that co-accused Munshi Mahra has been acquitted.

Learned Counsel, after the aforesaid argument made an alternative prayer on the question of sentence and submits that the incident is of the year 1997 and the appellant has suffered the mental agony due to ongoing litigation and looking to the overall facts and circumstances of the case, this Court may kindly, at least, modify the sentence for the period already undergone as appellant is middle aged person and he also remained in custody for 755 days and never misused the privilege of bail and further the appellant is having no criminal antecedent.

5. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committe