JUDGMENT 1. - This criminal appeal under Section 374 Cr.PC. is directed against the judgment and order dated 7.12.2001 passed by the learned Additional Sessions Judge, Ramganjmandi, whereby appellant Ramlal has been convicted for offence under section 307 IPC and sentenced to undergo 7 years' rigorous imprisonment with a fine of Rs. 15,000/-, in default thereof, to further undergo six months' simple imprisonment. 2. On 26.10.2000, the police recorded Parcha Bayan (Ex.P8) of injured Kailash Chand Meghwanshi in the Surgical Ward of M B.S. Hospital, Kota, wherein the injured stated that at about 7.00 AM while he, his mother and his cousin were taking tea, accused appellant came on the roof of his house and told the injured that it was twelve months festival and threw a bread packet at him and asked him to eat the bread since he had to die. On his refusal to eat bread, the accused who was armed with a gun, opened fire at the injured with an intention to kill him. The injured sustained gun shot injury on his back and as a consequence thereof, he fell down and accused escaped from the scene. The injured further stated that accused was his neighbour. He was a drunkard and used to hurl filthy abuses after consuming liquor. 3. On the basis of above Parcha Bayana, police registered a case vide FIR, Ex.R 9 and proceeded with the investigation. In the course of investigation, police prepared site plan, Ex.P1, collected the injury report, Ex.P10, X-ray report, Ex.R5 and X-ray plates Exs. P6 & P7. The accused was arrested and on his information, Ex.R26 furnished under section 27 of the Evidence Act, police recovered the gun form his possession vide memo Ex.P.27. 4. On completion of usual investigation, the police submitted a charge sheet against the appellant. The learned trial Judge, on the basis of evidence and material collected during investigation and placed before it, framed charge under section 307 IPC, to which the appellant denied and claimed trial. 5. At the conclusion of trial, the appellant was found guilty of having fired gun shot at Kailash with an intention to kill him and accordingly he was convicted and sentenced in the manner stated above. Hence the present appeal against conviction. 6. 5. At the conclusion of trial, the appellant was found guilty of having fired gun shot at Kailash with an intention to kill him and accordingly he was convicted and sentenced in the manner stated above. Hence the present appeal against conviction. 6. Learned counsel for the appellant did not challenge the conviction of the appellant and kept confined his argument only to the extent of awarding sentence. 7. PW 8 Kailash Chand, injured has deposed that accused Ramlal told him to eat popular bread, else he will have to be grieved. He had uttered these words from his roof. He further deposed that accused told him to eat popular bread, otherwise he will kill him. The accused fired gun shot from his own roof, the bullet of which hit on his back. According to the witness, his parents removed him to the hospital. The doctors took out the bullet by operation after 3 months. PW 3 Smt. Kamla Devi (mother), PW 4 Naresh (cousin), PW. 9 Laxmi (sister) and PW 10 (Sujanmal (father) have fully supported the statement of injured Kailash Chand. 8. The injured remained under treatment in the hospital for considerably long period. The trial Judge has noticed the condition of the injured at the time of recording his statement. PW 11 Dr. PK. Tiwari had examined the injured and prepared injury report, Ex.PIO, which indicates that the injury was dangerous to life. The C.T. scan of the injured was done on 28.10.2000. The C.T. scan report, Ex.P.24 indicates that there was evidence of posterior arch fracture at D6. Vertebral body fracture was also seen at D7, D8 and D9 level. Bone and metallic fragments and air were seen in the spinal canal. The contrast filled seen at all Scan No. 34 at D9-D10 level showed that there was extradural compression of spinal theca. PW 11 Dr. RK. Tiwari has deposed that there was punctured wound of the size of 1.5x1 cm at the back of chest. According to him, this injury was caused by fire arm. The doctor stated that at the time of examination of the patient, the patient was not able to move his legs. On the basis of Surgeon note and X-ray report, the Doctor stated that there were multiple fractures in thorasic vertibras 6 to 9 and, therefore, injury No. 1 was dangerous to life. The doctor stated that at the time of examination of the patient, the patient was not able to move his legs. On the basis of Surgeon note and X-ray report, the Doctor stated that there were multiple fractures in thorasic vertibras 6 to 9 and, therefore, injury No. 1 was dangerous to life. According to him, the injuries described in injury report, Ex.PIO were caused from the back side. 9. Having gone through the judgment under appeal, it appears that the learned trial Judge after elaborate discussion of the evidence of eye witnesses including the evidence of injured himself and having found their evidence in corroboration with medical evidence has recorded a finding of guilt against the appellant, which in my considered view should not be interfered with. In my considered view that prosecution has been able to prove beyond doubt that on 26.10.2000 at about 7.00 AM the accused fire gun shot at Kailash Chand with an intention to kill. In this view of the matter, the counsel for the appellant was right in challenging the conviction of the appellant. 10. On the question of sentence, learned counsel for the appellant has argued that the accused is not a habitual offender. He is a poor farmer and it was his first offence. He has already undergone more than 2 years and 7 months of imprisonment. In this back ground, learned counsel submitted that it would be in the interest of justice that the sentence of 7 years as awarded by the trial court is reduced to the period already undergone by him. 11. I have considered the above argument. It should be kept in mind that conviction should be followed by an appropriate sentence within the period stipulated in law and discretion in this regard is not absolute or whimsical. It is controlled by law and to some extent by judicial discretion, to be exercised in the facts and circumstances of the case. In the case at hand, the trial Judge while convicting the appellant under Section 307 IPC has awarded sentence to the term of 7 years. The accused appellant has remained in custody for about 2 years and 7 months. He is a poor villager and it was his first offence. In the case at hand, the trial Judge while convicting the appellant under Section 307 IPC has awarded sentence to the term of 7 years. The accused appellant has remained in custody for about 2 years and 7 months. He is a poor villager and it was his first offence. But the fact remains that the accused, without any rhyme or reason fired gun shot at Kailash and caused gun shot injury, for which he remained hospitalized for more than three months and that injury has resulted in his permanent disablement. In this view of the matter, I feel that sentence awarded to the appellant should commensurate with the offence committed by him. Therefore, the ends of justice would be met if the sentence of 7 years awarded by the trial court is reduced to 5 years. 12. In the result, this appeal is partly allowed. While maintaining conviction of appellant Ramlal under Section 307 IPC, the sentence of 7 years awarded to him is reduced to the term of 5 years. The remaining part of the judgment of the trial, court shall remain intact. *******