JUDGMENT Anil Kumar Sharma, J. Challenge in this appeal is to the judgment and order dated 30.1.2010 passed by Sri M. S. Verma, the then Addl. Sessions Judge, Court no. 9, Fatehpur in S.T. no. 557 of 2005 (State Vs. Ajay Kumar Shukla) arising out of Case crime no. 140 of 2005 u/s 304 IPC, whereby the appellant had been convicted for the offence punishable u/s 304-II IPC and sentenced to undergo 8-years' rigorous imprisonment and fine of Rs. 5,000/- with default stipulation. 2. Shorn of details, the prosecution story was that on 4.7.2005 at 2: 15 a.m. a written report was lodged by complainant Triloki Nath alleging that on 3.7.2005 at about 8: 00 p.m. while he was at home, Rajjan Nai came to take medicines from his brother Dhirendra Kumar Shukla and as them came out of the room, accused Chhottan Shukla armed with lathi came there and started assaulting his brother saying that why is he helping his father? His shrieks attracted nephew Sudhir (s/o Dhirendra) and Prem Dutt Shukla. This incident was seen in the lantern light and Rajjan Nai had a torch and all of them saved the injured. After about 1½ hour, the injured stopped speaking. After arranging vehicle the injured was taken to the police station and thereafter, he was sent for medical examination. On the basis of written report case at crime no. 140/05 u/s 308, 504, 506 IPC was registered against the accused-appellant, investigation whereof was taken up by S.O. Purshottam Yadav. Dr. Surendra Pratap conducted medical examination of Dhirendra Kumar Shukla on 4.7.2005 at 4.40 A. M. and he found following injuries on his person: 1. Abrasion 2 cm x 1 cm on the front of the head; 2. Contusion 11 cm x 2 cm on the left scapula; 3. Contusion with swelling 6 cm x 4 cm on the 2 cm below the right knee joint; 4. Abrasion 2 cm x 1 cm at the upper part of right tibia situated 5 cm below the right knew joint; 5. Lacerated wound 2.5 cm x 0.5 cm x deep to skin and deep muscle on the 8 cm above the left ankle joint; 6. Contusion 7 cm x 4 cm on the 11 cm below the left knee joint. The doctor kept injuries no. 1 and 6 under observation and x-ray was advised. Lacerated wound 2.5 cm x 0.5 cm x deep to skin and deep muscle on the 8 cm above the left ankle joint; 6. Contusion 7 cm x 4 cm on the 11 cm below the left knee joint. The doctor kept injuries no. 1 and 6 under observation and x-ray was advised. Rest injuries were simple, caused by blunt object and duration was about 24-hours. At about 11.45 a.m. on 4.7.2005 information regarding death of injured was received and then the case was converted into section 304 IPC. The autopsy on the cadaver of the deceased was conducted on 4.7.2005 at 3.00 p.m. The doctor has noted that the deceased has suffered death at 8.20 A.M. on the same day in the hospital due to coma as a result of ante-mortem head injury. The investigation ended into charge-sheet against the accused. 3. After committal of the case to the Court of Session charge u/s 304 IPC was framed against the appellant, who abjured the guilt and claimed trial. 4. In support of the charge the prosecution had examined complainant Triloki Nath Shukla PW-1, Prem Dutt PW-2, Jagdish Prasad Tripathi PW-3, SI Purshottam Singh Yadav PW-4, SI Rajendra Prasad PW-5, Dr. N. K. Saxena PW-6, SI Shri Prakash Singh PW-7 and Dr. Surendra Pratap PW-8. 5. The accused in his statement u/s 313 Cr. P. C. had again denied the entire prosecution story and claimed false implication on the ground that the deceased was a drunkard, he used to eve tease the ladies of the village and was beaten by the people. The complainant wanted to have his land very cheap, which he declined so he falsely implicated him. However, he has not produced any evidence in defence. 6. The learned trial Court after hearing the parties' counsel, has convicted and sentenced the accused-appellant as indicated in para-1 of the judgment above. 7. I have heard the learned counsel for the parties and perused the original record of the trial Court. 8. During the course of hearing, learned counsel for the appellant has not pressed the appeal with regard to the conviction of the appellant for the offence punishable u/s 304-II IPC. However, he has vehemently argued that custodial sentence of 8-years', is quite harsh and excessive, because the accused neither had any intention to kill the deceased or knowledge that he would be killed. However, he has vehemently argued that custodial sentence of 8-years', is quite harsh and excessive, because the accused neither had any intention to kill the deceased or knowledge that he would be killed. His further submission is that during trial the accused had been in jail for about seven months and now he is in prison since 30.1.2010 i. e. from the date of his conviction by the learned trial Court. Thus, the accused has suffered imprisonment for about 4 years and 10 months, has argued the learned counsel. It is lastly submitted that the accused appellant be sentenced to imprisonment for the period already undergone by him. The learned AGA has however, opposed the prayer made by the counsel for the appellant. 9. Initially, the case was registered u/s 308, 504 and 506 IPC, however, after the death of Dhirendra Kumar Shukla, it was converted into section 304 IPC and the learned trial Court has found him guilty u/s 304 Part-II IPC. The State has not filed any appeal for conversion of the conviction of the appellant into Part-I section 304 IPC or for enhancement of the sentence. Not pressing a criminal appeal after the conviction of the accused by the Court below, is like the confession of the offence by the accused. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence. 10 In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu AIR 1991 SC 1463 , the Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under: "Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc." 11. In the case of State of M. P. Vs. Ghanshyam Singh (2003) 8 SCC 13 : 2003 Crl. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc." 11. In the case of State of M. P. Vs. Ghanshyam Singh (2003) 8 SCC 13 : 2003 Crl. LJ 4339 a division bench of the M. P. High Court converted the conviction of Ghanshyam Singh from 302 IPC to 304, Part-I IPC and awarded custodial sentence of 2 years. It was observed by the Apex Court that lesser sentence should not be imposed merely on the ground of long pendency of matter. In that case, it was further observed that two years' custodial sentence for the offence under Section 304, Part-I, IPC was not proper and the sentence was enhanced to six years. 12. In the case of Dhananjoy Chatterjee Vs. State of W. B. [1994] 2 SCC 220, this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance. 13. In a case of assault between two groups in regard to the right to bid for certain shamlat land, consequent to which two persons died due to the injuries suffered in the attack, the trial Court held that sentence of 8 years with a fine of Rs. 1,000 each would serve the ends of justice. This sentence was reduced by the High Court to a period of 5 years. The Supreme Court held that the setence awarded by the High Court was reasonable. [Vide - Tarsem Singh Vs. State AIR 2002 SC 760 ] 14. Thus considering the law laid down by the Apex Court in the above mentioned cases, in the facts and circumstances of the case, in my opinion, the ends of justice would be met if the custodial sentence of 8 years is reduced to 5-years' rigorous imprisonment without reducing the amount of fine imposed by the trial Court against the accused-appellant. 15. In view of the afore stated reasons, the appeal is partly allowed. The conviction of the appellant u/s 304 Part-II IPC is confirmed and rigorous imprisonment of 8-years is reduced to 5-years and sentence of fine of Rs. 5,000/- with default stipulation as awarded by the trial Court is maintained. The appellant is in jail and would serve out the remainder of his sentence if not already completed. 16. Let certified copy of the judgment be sent to the concerned Court immediately for sending modified conviction warrant of the accused-appellant to the concerned prison.