JUDGMENT :

Ajit Singh, J.

This criminal appeal has been filed against the judgment and order dated 26.3.1985 passed by the Session Judge, Mainpuri in S.T. No. 196 of 1984, under Section 307 I.P.C., Police Station-Kotwali, District-Mainpuri, whereby learned Judge convicted and sentenced the appellant to 05 years rigorous imprisonment under Section 307 I.PC.

2. The prosecution story in brief is that the present accused Shiv Singh entered into the house of complainant and enquired about the mother and father of the complainant and after 2-4 minutes hit his mother by country made pistol on account of which her mother shrieked and became unconscious. She was taken to District Hospital, Mainpuri where she regained consciousness and was medically examined by Dr. M.L. Gupta, PW-3. Her statement was also recorded by Tehsildar which is Ext. Ka-1. A written report (Ext. Ka-2) was filed at police station Kotwali Mainpuri by the complainant, Brijendra Singh. Thereafter, a chick report was prepared which is Ext. Ka-5 and entry was made in the General Diary at serial No. 23, an extract of which is Ext. Ka-14. Thereafter, Sub-Inspector, Maharaj Singh, PW-4 investigated the matter and recorded statement of complainant, his mother and other certain witnesses. As the accused applicant was not traceable, proceedings under Section 82/83 Cr.P.C. was initiated. On 22.12.1983, the Investigating Officer submitted the charge-sheet (Ext. Ka-13) against the accused in his abscondance. The trial court after taking cognizance against the accused framed charges against the accused. The accused-appellant pleaded not guilty.

3. The trial Court after examining the prosecution witnesses and hearing the accused under Section 313 Cr.P.C., convicted and sentenced the accused-appellant to undergo five years rigorous imprisonment under Section 307 I.P.C.

4. Feeling aggrieved from the judgment and order dated 26.3.1985 passed by Session Judge, Mainpuri, this criminal appeal has been filed.

5. At the very outset, learned counsel for the appellant, on instructions, stated that he does not propose to challenge the impugned judgment and order on its merits. He, however, prayed for modification of the order of the sentence for the period already undergone by the appellant.

6. In furtherance to his submission, the learned counsel for the accused-appellant submits that the appellant was of tender age at the time of incident. The incident had taken place in the year 1983 and the accused was convicted in the year 1985 and since then the appellant has suffered physical and mental agony of conviction. At present the appellant is aged about 57 years and he is having a family to support. The appellant had been in jail for a period of eight months during trial and after conviction. Further submission is that it was the first offence of the accused and after conviction the accused had not indulged in any other criminal activity. He next submits that although the trial Court has convicted the present accused while the appellant is absolutely innocent and has been falsely implicated in this case with the ulterior intention of harassing him. Further submission is that there is no bread earner in the family of the appellant. He also submits that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking lenient view considering the age of the accused and his age related ailments.

7. Learned A.G.A. has vehemently opposed the submission made by learned counsel for the appellant and submitted that there is ample evidence against the appellant and there is no reason to disbelieve the prosecution story as the accused-appellant is distant relative of the complainant family and why the accused will be falsely implicated in this matter. He has further submitted that the injured has specifically nominated the accused in her statement and doctor has specifically corroborated the injuries of the injured and the oral evi