JUDGMENT : Hon'ble Ramesh Sinha,J. 1. The learned AGA has filed a counter affidavit, which is taken on record. 2. Heard Sri Rajeev Sahani, leaned counsel for the appellant and Sri Awadesh Kumar Saxena, learned AGA appearing for the State and perused the record. 3. At the very outset, learned counsel for the appellant submits that the first bail application of the appellant was rejected by another Bench of this Court on 20.09.2012. He submitted that the maximum sentence awarded to the appellant is seven years R.I. under Section 307 IPC, out of which he has already served out almost four years in jail, hence he filed a second bail application no. 142448 of 2014, relying on the judgment of Apex Court in the cases of Kamal v. State of Haryana, 2004 (13) SCC 526 ; Akhtari Bi v. State of Madhya Pradesh, 2001 AIR SC 1528 and Takht Singh v. State of Madhya Pradesh, 2001 (10) SCC 463 ; wherein the Apex Court has held that in case the accused has undergone substantial period of detention and there is no prospect of the appeal being heard in the neat future, accused is entitled to be released on bail. He suggested that as the appellant has already served out substantial period of sentence in jail and the appeal is listed for final hearing also, hence alternatively the appeal be decided on the question of sentence only and his second bail application be dismissed as not pressed, hence the Court proceed to hear and decide the appeal on behalf of the appellant on the question of sentence only. 4. With the consent of learned counsel for the parties, the appeal is being heard and disposed of finally at this stage, when the matter is listed 'For Orders', for disposal of the second bail application of the appelant. 5. That present criminal appeal has been filed against the judgment and order dated 07.08.2012 passed by the Additional Sessions Judge, Court No.10, Bijnor, in Session Trial No. 743 of 2010, convicting and sentence the appellant to under go seven years R.I. and a fine of Rs. 2,000/- under Section 307 IPC and in default of payment of fine appellant shall further under go three months additional simple imprisonment. 6. 2,000/- under Section 307 IPC and in default of payment of fine appellant shall further under go three months additional simple imprisonment. 6. The prosecution case in brief is that a first information report was lodged by informant Zakir Husain stating that on 02.06.2010 the accused Amzad has abused and indulged in marpeet with the younger brother of the informant namely Mahendi Hasan who was mentally weak, for which his younger brother Chhotey had gone to complain to Amzad, who was present at his barber shop at 7.30 p.m. On complaint being made by Chhotey, the accused Amzad has abused him and with an intention to kill him has assaulted him with sharp edged weapon on his head, on account of which his brother Chhotey has received injuries and was found in a pool of blood. On the alarm raised by him, the informant, eye witness Dilshad son of Hasan Ali and other persons of the village have arrived at the place of occurrence. The accused Amzad fled away from his barber shop. He took his brother in a serious condition to Chandpur Hospital, where he was given first aid and medical treatment and thereafter he was referred to Bijnor District Hospital, where he was admitted. He has also submitted his medical report, X-ray report, X-ray plate and supplementary report at the concerned police station and made a request for lodging a first information report against the accused Amzad. 7. On the basis of the written report submitted by the informant on 08.06.2010 at about 14.45 p.m. a first information report was registered against accused Amzad for an offence under Sections 307, 504, 323 IPC, as Ex. Ka-7. An information about the registration of the first information report was also mentioned in the G.D. of the concerned police station. A carbon copy of the same has been marked as Ex. Ka-8. 8. The informant had got his brother Chhotey medically examined on the date of incident i.e. on 02.06.2010 at about 8.30 p.m. at Primary Health Centre, Shyau, which was marked as Ex. Ka-2. A supplementary report of the injured Chhotey was also prepared, which was marked as Ex. Ka-3, and X-ray was also performed, which is also marked as Ex. Ka.-4. 9. Ka-2. A supplementary report of the injured Chhotey was also prepared, which was marked as Ex. Ka-3, and X-ray was also performed, which is also marked as Ex. Ka.-4. 9. The medical examination of the injured Chhotey was conducted at Primary Health Centre, Shyau on 02.06.2010 at 8.30 p.m. and following injuries was found on his person:- Injury Nos. 1. Incised wound size 10 cm x 1 cm x bone deep, front of head transversely placed 12 cm above root of nose, bleeding present, kept under observation. 2. Lacerated wound 2 cm x ½ cm x muscle deep, right forearm interior aspect placed 9 cm above wrist, bleeding present. 3. Lacerated wound 1 cm x 1 cm x muscle deep terminal phalanx of left little toe with loss of nail, bleeding present. 4. General condition: poor, patient drowsy, pulse 84/mi, BP 110/70 vomiting present. In the opinion of doctor, the injury No. 1 caused by some sharp edged object, other injuries caused by hard & blunt object. Injury No. 1 kept under observation, advised X-ray skull Ap./Lat., other injuries simple. Duration Fresh. Patient referred to District Hospital, Bijnor for X-ray and admission for management of suspected head injury. 10. As per the supplementary report/X-ray of Skull of the injured Chhotey was conducted by Dr. D. K. Jain, Senior Radiologist, District Hospital, Bijnor on 08.06.2010, and a cut at parietal bone was seen. As per the opinion of the doctor the nature of the injury no.1 of the injured was found to be grievous. 11. The investigation of the case was conducted by the Investigating Officer, who on 09.06.2010 had gone at the place of occurrence and prepared a site plan, which is marked as Ex. Ka-5 and available on record. He recorded the statements of the informant and witnessess under Section 161 Cr.P.C. After completing the investigation the Investigating Officer has submitted charge-sheet against the accused Amzad, which is marked as Ex. Ka-6. 12. The case was committed to the court of Sessions on 30.10.2010 and the charges were framed against the accused Amzad under Section 307 IPC by the trial court, which was denied by the accused Amzad and claimed trial. 13. The prosecution in support of its case has examined P.W-1 Mohd, Zakir, informant, P.W.-2 injured Chhotey, P.W.-3 Dilshad Ahmad, eye witness, P.W.-4 Dr. M. P. Singh, P.W.-5 Dr. D. K. Jain and P.W.-6 Station Officer Hari Shankar. 13. The prosecution in support of its case has examined P.W-1 Mohd, Zakir, informant, P.W.-2 injured Chhotey, P.W.-3 Dilshad Ahmad, eye witness, P.W.-4 Dr. M. P. Singh, P.W.-5 Dr. D. K. Jain and P.W.-6 Station Officer Hari Shankar. 14. P.W-1 Mohd, Zakir, who is the informant and eye witness of the occurrence has stated that he was sitting at the 'Taal' of P.W.-3 Dilshad which was 100-150 paces away from the place of occurrence. On hearing of noise he reached at the place of occurrence. He supported the prosecution story and submitted that the accused has assaulted his brother Chhotey when he had gone to the shop of the accused Amzad to complain regarding abusing and assault of his brother Mehandi Hasan who was mentally weak, on which the accused Amzad had also abused and assaulted his brother Chhotey with a long knife on his head with an intention to kill him, on account of which his brother Chhotey the injured has received injury on his head and hand. He alongwith Dilshad have reached at the place of occurrence and saved his brother Chhotey. The accused Amzad fled away from the place of occurrence displaying the knife. He is the witness of the incidence which he has seen in the electric light burning at the shop of accused Amzad. He has proved the FIR lodged by him Ex. Ka-1. 15. P.W.-2 Chhotey who is the injured has also supported the prosecution case and has submitted that he was assaulted by the accused Amzad by knife at 7.30 in the evening with an intention to kill him, when he has gone to his shop for complaining as to why his brother Mehandi Hasan who was not keeping sound mind was abused and assaulted by him. The injured Chhotey has received injury on his head and hand, at the hand of the accused appellant Amzad, thereafter he became unconscious and his condition was serious. 16. P.W.-3 Dilshad Ahmad, an eye witness of the place of occurrence has reiterated the prosecution case and submitted that his 'Taal' is situated at the opposite to the shop of accused Amzad and he was sitting at his 'Taal' with the informant P.W.-1 and saw the incident. 16. P.W.-3 Dilshad Ahmad, an eye witness of the place of occurrence has reiterated the prosecution case and submitted that his 'Taal' is situated at the opposite to the shop of accused Amzad and he was sitting at his 'Taal' with the informant P.W.-1 and saw the incident. On the alarm raised by the injured they reached at the place of occurrence and saw that the accused Amzad has assaulting with knife on the injured Chhotey, and when they resisted the accused from assaulting the injured, he fled away from the place of occurrence displaying the knife. He also stated that he has seen in the incident in the electric light burning at the shop of accused Amzad. He further stated that he was the scribe of the FIR which was lodged by the P.W.-1 Mohd. Zakir, and he has proved said written report on the basis of which a first information report was lodged, as Ex. Ka-1. 17. P.W.-4 Dr. M. P. Singh, has deposed before the trial court that on 02.06.2010 at 8.30 p.m. he had examined the injured Chhotey and found three injuries on his person. He was in a semi-conscious condition and was vomiting. His pulse was low and blood pressure was 110/70. He has stated that injury no.1 was caused by some sharp edged weapon and has further advised for X-ray of injury no.1, and rest of the injury could be caused by some hard and blunt object. Except injury no.1 rest of the injuries were simple in nature and were fresh. After examining the X-ray report and X-ray plate of the injured on 08.06.2010 he opined that injury no.1 was grievous in nature. He has also proved the medical report and supplementary report of the injured. 18. P.W.-5 Dr. D. K. Jain, Radiologist District Hospital, Bijnor stated that on 03.06.2010 he has performed the X-ray of injured Chhotey and from the X-ray plate of the injured, he found that parietal bone of the injured was cut, and he has proved the X-ray report and X-ray plate which was prepared by him. 19. 18. P.W.-5 Dr. D. K. Jain, Radiologist District Hospital, Bijnor stated that on 03.06.2010 he has performed the X-ray of injured Chhotey and from the X-ray plate of the injured, he found that parietal bone of the injured was cut, and he has proved the X-ray report and X-ray plate which was prepared by him. 19. P.W.-6 S. I. Hari Shankar is the Investigating Officer of the case, and has deposed before the trial court that he has conducted the investigation of the case, prepared the site plan of the place of occurrence, recorded the statements of the witnessess under Section 161 Cr.P.C. and thereafter, submitted the charge-sheet against the accused Amzad, in the court. He has also proved the FIR and G.D. which was prepared by the constable clerk Deenanath Gangwar, who was posted at the concerned police station, at the time of the incident. 20. The statement of the accused under Section 313 Cr.P.C. was recorded by the trial court, and he has stated that he has been falsely implicated in the present case, and has denied the incident. He further stated that there was some quarrel between the informant of the case and his friend Mustafa at Delihi before the present incident, on account of which the informant has lodged the present false FIR against him, and he has not committed any such incident and he is innocent, but the accused did not laid any defence evidence inspite of the opportunity given to him. 21. It has been argued by the learned counsel for the appellant that there has been a contradictory version given by the informant P.W.-1 and eye witness P.W.-3 in their evidence, which is contrary to the evidence given by the P.W.-2, who is the injured, hence their presence at the place of occurrence appears to be doubtful. He further argued that appellant is said to have caused injury by a long knife on the injured Chhotey, but no recovery of knife was made by the police from the appellant or on his pointing out. He further argued that no blood was recovered from the place of occurrence, which shows the place of occurrence are also to be doubtful. He next submitted that other two injuries which have been received by the injured, have been caused by blunt object, as is evident from the evidence of the Dr. He further argued that no blood was recovered from the place of occurrence, which shows the place of occurrence are also to be doubtful. He next submitted that other two injuries which have been received by the injured, have been caused by blunt object, as is evident from the evidence of the Dr. M.P.Singh, but the appellant is said to be only armed with the sharp edged weapon i.e. knife, hence there appears to be no explanation regarding the injury nos. 2 and 3 caused on person of the injured. 22. He further submitted that even if the prosecution case is taken on its face value, the case would not travel beyond Section 308 Cr.P.C. and no offence under Section 307 IPC is made out against the appellant. 23. He lastly argued that the appellant first bail application filed in the appeal has been rejected by another Bench of this Court on 20.09.2012 and he has filed a second bail application No.142448 of 2015 on behalf of the appellant in the appeal and prayed that the appellant has already served out substantial period of sentence i.e. morethan 4 years in jail, out of maximum sentence awarded to him by the trial court i.e. 7 years, and prayed that he be released on bail during the pendency of the appeal as the final hearing of the appeal is not likely to be heard in near future and in alternative he submitted that the present appeal be heard and finally disposed of on the question of sentence only, and the appellant second bail application be dismissed as not pressed. 24. He last argued that the appellant has been convicted under Section 307 IPC and awarded maximum sentence of 7 years R.I. by the trial court and out of which he has already served out more than 4 years in jail, hence his rest of the sentence may be reduced to a fine, which would not be treated as enhancement of sentence, as the appellant has already under gone a substantive period of sentence in jail. 25. 25. Learned AGA on the other hand has argued that the appellant has caused injuries by sharp edged weapon on the injured who received injuries on his head, hence the conviction and sentence awarded by the trial court to the appellant may be upheld by this Court, but he could not dispute with the aforesaid fact that the appellant has already under gone a substantive period of sentence in jail, as awarded by the trial court and fairly submitted that the rest of the sentence of the appellant may be reduced to an adequate fine, which may be paid to the injured. 26. Having considered the submissions advanced by the learned counsel for the parties and perused the record. 27. The present appeal has been admitted by this Court and the lower court record has been received. 28. It appears from the evidence of injured P.W.2 Chhotey, who has supported the prosecution case and has categorically stated that when he has gone at the shop of the accused appellant Amzad, complaining the abusing and assault of his brother Mehandi Hasan, then the accused Amzad has became annoyed and also abused and assaulted the injured Chhotey by a sharp edged weapon i.e. knife on his head. The injury no.1 as it appears from the medical report of the injured was caused on his head, which was an incised wound, and as per the supplementary report X-ray was done of injury no.1 and his parietal bone was found to be cut. The injured was taken to the hospital, where he was found to be vomiting, his pulse were low and blood pressure was 110/70. Hence the injuries which was sustain by the injured was grievous in nature, as opined by the doctor and also dangerous to life. The evidence of P.W.-3 Dilshad Ahmad who is an independent eye witness of the case is also corroborated by the evidence of P.W.-1 the informant of the case, hence the participation of the appellant in the incident cannot be doubted. 29. The evidence of P.W.-3 Dilshad Ahmad who is an independent eye witness of the case is also corroborated by the evidence of P.W.-1 the informant of the case, hence the participation of the appellant in the incident cannot be doubted. 29. The arguments advanced by the learned counsel for the appellant on merits of the case does not find force as the finding recorded by the trial court in convicting and sentence the appellant on the basis of the evidence of the prosecution appears to be justified, and does not call for any interference by this Court, hence the conviction and sentence of the appellant is hereby upheld. 30. However, taking into account the last submission of learned counsel for the appellant which has been fairly conceded by the learned AGA that the appellant has already served out a substantive period of sentence in jail, out of the maximum sentence awarded to him. It would meet the ends of justice that the rest of the sentence of the appellant is reduced to a fine of Rs. 1 lacs, out of which Rs. 90,000/- shall be paid to the injured of the case P.W.2 Chhotey, if alive or to his legal heirs, if any, and Rs. 10,000/- shall go to the State. 31. The appellant shall deposit the fine of Rs. 1 lacs in the court of Chief Judicial Magistrate, Bijnor. On the deposition of fine as directed above, the appellant Amzad shall be released, if not wanted in any other case. 32. In default of payment of fine, as directed above, the appellant shall served out the sentence as awarded by the trial court. 33. In view of the above, the appeal is partly allowed. 34. Office is directed to send a certified copy of this order to the Chief Judicial Magistrate, Bijnor, for its compliance ——————