JUDGMENT

1. Today, this appeal listed for consideration of I.A. No.410/2021, which an application under section 389 of CrPC for suspension of sentence and grant of bail. Since the record has been received, therefore, with the consent of parties, the appeal is heard finally.

2. The appellant has filed the present appeal under section 374 of CrPC against the judgment dated 30.4.2019 passed by Second Additional Sessions Judge, Garoth, District Mandsaur whereby he has been convicted for the offence punishable under 307 of IPC and under section 25(1-B) (B)/4 of Arms Act and sentenced to undergo 5 years R.I. and 6 months R.I. with a fine of Rs.5,000/- and Rs. 100/- with default stipulation.

3. As per the prosecution story, the marriage of the appellant took place with Sunita/injured ( wife of the appellant) 14-15 years back from the date of commission on 18.7.2017. After the marriage, Sunita was residing with the appellant, father-in-law and mother-in-law. The appellant was earning by selling breakfast in the morning. They were residing in the rented house. On 18.7.2017, near about 12:50 pm, the complainant Mahesh got heard the screaming voice of his sister Sunita. He immediately reached her house along with her father, mother and neighbours and saw that Sunita was bleeding from hand, and throat and this appellant was running outside from the house. The Sunita told them that they went to sleep at 10:00 pm after taking dinner. The appellant set on her and tried to cut her neck by knife. She could save her but sustained cut injuries on her finger and throat. The police have registered the case under sections 323, 324, 506 of I.P.C. and he was arrested. Later on, under sections 307, 498-A of I.P.C. and section 25 of Arms act were added. The trial was committed to the Sessions Court.

4. The prosecution examined as many as 9 witnesses and in defence, the appellant has examined Dr. Ansul Vijay (DW-1).

5. After appreciation of the evidence came on record, the learned trial Court Additional Sessions Judge has convicted and sentenced the appellant as mentioned in above para 2 of this Judgment. Hence, this appeal before this Court.

6. The appellant is in jail since 20.7.2017. He was not released on bail during the trial as well as during pendency of this appeal.

7. Learned counsel for the appellant submits that vide order dated 11.2.2020, the first application for suspension of sentence and grant of bail was dismissed. Thereafter, a second application for suspension of sentence and grant of bail was also dismissed on 13.8.2020. The appellant is in jail since 20.7.2017, therefore out of five years, he has already been completed 3 years, 9 months and 15 days of his jail sentence (without remission). The appellant is not willing to assail the findings of conviction on merit but he is praying for a reduction of a sentence from five years to the period of custody already undergone. He further submits that his actual custody is 3 years, 9 months and 15 days but after including the remission period, he would be completed four years and six months i.e. short by six months from five years. He is the first offender. He caused the injury in a sudden spur of movement and for that, he has regrets. The appellant is having three children aged about 13, 9 and 8 years respectively and no one in his family to look after them. After release from jail, he will take care of them and shall not repeat the offence, therefore, the period of sentence may kindly be reduced.

8. Learned advocate appearing for the State opposes the aforesaid prayer by submitting that the appellant did try to kill his wife by cutting her throat by means of a knife, therefore, a minimum sentence of five years has been imposed upon him. Although, he is the first offender and not a hard-core criminal and there is no complaint against him during the period of incarnation in the jail.

9. I have heard learned counsel for the parties and perused the record of the trial Court.

10. It is correct that