IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 893 of 2001 (Old No. 2450 of 2000) Surjit Singh S/o Mang Singh R/o Tamaria Dam, P.S. Ramnagar District Nainital ……….Appellant Versus State of U.P. (now State of Uttarakhand) …………Respondent Smt. Pushpa Joshi, (Amicus Curiae), Advocate and Shri Abhishek Verma, Advocate, present for the appellant. Shri Nandan Arya, A.G.A., present for the state. Hon’ble Prafulla C. Pant, J. This appeal , preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C) is directed against the judgment and order dated 29.08.2000, passed by I Additional Sessions Judge, Nainital, in Sessions Trial No. 212 of 1996, whereby said court has convicted the accused/appellant Surjit Singh under section 326 IPC, and sentenced him rigorous imprisonment 2 for a period of five years and also directed him to pay fine of ` 5,000/-. It is further directed by the trial court that in default of payment of fine convict shall undergo further imprisonment for a period of one year. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 02.10.1994, Phuman Singh (P.W.1) alongwith his wife was harvesting his paddy crop in village Bhogpur Dam within the limits of Police Station Jaspur. At about 7:00 p.m., both were called by accused/appellant Surjit Singh, and when they reached near the house of the accused he assaulted Phuman Singh with knife and caused injuries on his person. Thereafter, accused Surjit Singh escaped from the place of incident. Bagh Kaur (P.W.2) wife of the injured got lodged first information report (Ex. A1)(for short FIR) at Police Station Jaspur. The injured Phuman Singh was taken to L.D. Bhatt Hospital, Kashipur, where he was examined by Dr. J.K.Goyal (P.W.4). On the basis of FIR, crime no. 251 of 1994, was registered against the accused Surjit Singh relating to 3 offences punishable under section 324, 504 IPC and investigation was taken up by Sub-Inspector Pratap Singh (P.W.5). After interrogating the witnesses,and on completion of investigation, the Investigating Officer submitted charge Sheet (Ex. A7) against the accused Surjit Singh for his trial in respect of offences punishable under section 307 and 504 IPC. 4. The Magistrate, Kashipur, on receipt of the charge sheet,and after giving necessary copies to the accused, committed the case to the court of sessions for trial. On 28.08.2000, Ist Additional Judicial Magistrate, Nainital, framed charge of offence punishable under section 307 IPC, against the accused Surjit Singh who pleaded not guilty and claimed to be tried. On 27.07.1997, an amended charge of the same offence with more particulars was framed by the trial court to which also accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Phuman Singh (injured), P.W.2. Bagh Kaur (eye witness), P.W.3 Harnam Singh (complainant), P.W.4 Dr.J.K. Goyal (who examined injuries on the person of the injured), P.W.5 S.I. Pratap Singh 4 (who investigated the crime) and P.W.6 Dr. Yashpal Singh (who prepared supplementary report after x-ray of the injury of the injured). The oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he alleged same to be false. However, no evidence in defence was adduced. After hearing the parties, the trial court found the accused/appellant Surjit Singh guilty of charge of offence punishable under section 326 IPC, and after hearing on sentence, sentenced him to rigorous imprisonment for five years and also directed to pay fine ` 5,000/-. Aggrieved by said judgment and order dated 29.08.2000, passed in Sessions Trial No. 212 of 1996, this appeal was preferred by the convict before Allahabad High court on 28.09.2000, where it was registered on 29.09.2000. The appeal is received by this Court under section 35 of U.P. Reorganization Act, 2000 (Central Act, 29 of 2000) for its disposal. (Earlier Police Station Jaspur was part of District Nainital now part of District Udham Singh Nagar). 5. Before further discussion, this Court thinks it just and proper to mention the injury 5 found on the person of Phuman Singh by P.W.4 Dr. J.K. Goyal, at 7:30 p.m., on 03.10.1994, who prepared the injury report (Ex. A2). The only injury found on the person of Phuman Singh is recorded as under: “Stab wound 3cm X 1cm X cavity deep on front of left side of chest 5cm from left nipple at 5 O'clock position. Clotted blood present. Piece of omentum coming out of the wound.” The injured was kept under observation and x-ray was advised. P.W. 6 Dr. Yashpal Singh who prepared supplementary report (Ex. A8 ) after taking x-ray film, reported that the six rib was found fractured on the left lung. 6. P.W.1 Phuman Singh, an injured eye witness has stated on oath before the trial court that on the day of incident he was assaulted by accused Surjit Singh who gave a knife blow on his person. Testimony of this witness gets corroborated from the medical evidence already mentioned above. 7. P.W.2 Bhagh Kaur, wife of the injured, who was accompanying him at the time of 6 incident has also corroborated the prosecution story. Her presence at the place of incident is natural and evidence adduced by her is trustworthy. 8. Having reassessed the entire evidence on record, this Court concurs with the finding recorded by trial court that the prosecution has successfully proved charge of offence punishable under section 326 IPC, against accused Surjit Singh. Learned counsel for the appellant argued that the appellant had remained in jail from 05.10.1994 to 07.01.1998, and again thereafter from 07.01.2000 to 05.04.2002, in this case i.e. the period more than four years. Again he is in jail in this case since October 2010. It is further submitted that the sentence awarded by the trial court be reduced to period already undergone. 9. For the reasons as discussed above, this appeal so far as it relates to conviction of the appellant under section 326 IPC, is liable to be dismissed. Considering the facts and circumstances of the case, this Court is of the view that awarding sentence to the appellant for four 7 years imprisonment under section 326 IPC would meet ends of justice. Therefore, on the point of sentence the appeal deserves to be partly allowed. 10. Accordingly, the appeal is partly allowed. Conviction of the appellant Surjit Singh under section 326 IPC is affirmed. However, on the point of sentence appeal is allowed and sentence awarded by the trial court against the appellant is set aside and his sentence is reduced to period of imprisonment already undergone during the period of trial of appeal. With this modification in the sentence, the appeal stands disposed of. Lower court record be sent back. Since the appellant has again been taken into custody on 23.10.2010, let the copy of this judgment be sent to the Superintendent of Jail concerned with the direction that if the appellant is not required to be detained in connection with any other case, he shall be released forthwith. (Prafulla C. Pant,J.) Parul 24.02.2011