JUDGMENT : Hon'ble Arvind Kumar Mishra-I,J. 1. Heard Sri Santosh Kumar Tiwari, learned counsel for the appellant Kaleem, learned AGA for the State and perused the record. 2. By way of instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 24.12.1986 passed by the Sessions Judge, Lalitpur, in Session Trial No.99 of 1986 State Vs. Kaleem, arising out of Case Crime No.44 of 1985 under Section 307 IPC, Police Station- Jakhaura, District- Lalitpur, whereby the appellant has been sentenced to undergo fine years rigorous imprisonment. 3. Since the order of conviction passed by the learned trial Judge has not been assailed and has been admitted to the appellant, therefore, it would not be in the fitness of things that a detailed narration of the incident is sketched as that would serve no worthy purpose. Though the entire facts and circumstances of the case have been taken into consideration and described in the impugned judgment but for the proper understanding of the case, it would be feasible, in the interest of justice that a mention of the relevant facts is made. 4. The facts leading up to this appeal appear to be, as discernible, from the record and particularly the first information report lodged by the informant Babu Singh, father of the injured Balvir Singh on 04.06.1985 at 12:15 p.m., at Police Station Kowali, District Lalitpur, at Case Crime No. Nil of 1985, under Sections 308, 504, 506 IPC as the matter was connected with the territorial jurisdiction of Police Station Jakhaura, District Lalitpur, with the allegations, inter-alia that the informant's son Vir Singh, who used to work at shop, was abused and beaten by the accused-appellant. In the meanwhile, the informant's another son Balvir Singh arrived on the spot and tried to save his brother when the accused-appellant assaulted him (Balvir Singh) with iron rod who became unconscious and fell down on the ground. The incident was witnessed by Ashok Kumar Gupta and Dinesh Kumar Gangele who intervened and saved Balvir Singh and put him in a bus and took him to the district hospital, Lalitpur where he was admitted and given medical treatment. After some time, the police also arrived on the spot. In the meanwhile, the accused-appellant escaped away from the scene. Request was made for lodging the report. After some time, the police also arrived on the spot. In the meanwhile, the accused-appellant escaped away from the scene. Request was made for lodging the report. It was also stated in the report that the incident took place around 8:00 a.m. This report Ext. Ka-1. 5. As per testimony of Suresh Chandra Srivastava PW-6 - the Investigating Officer - this report though lodged initially at Police Station Kotwali, District Lalitpur was transferred to Police Station Jakhaura, District Lalitpur. Since the matter fell within the limits of aforesaid police station, therefore, the investigation was entrusted to the Investigating Officer, Suresh Chandra Srivastava and a separate case crime number was allotted to the case. 6. After lodging of the first information report, the injured Balvir Singh was medically examined by Dr. S.S. Singhal PW-5, at District Hospital, Lalitpur, on 04.06.1985 at 9:35 a.m. who noted following injuries: "1. Lacerated wound 10 cm x 0.5 cm x bone deep on top of right side of 12 cm above the top of right ear, margin irregular, bleeding present." 7. Injury was kept under observation. X-ray was advised. It was stated that injury was caused by blunt object and duration was fresh. It was also noted that the patient was in semiconscious state and was admitted in the hospital and referred to the Surgeon. The injury report is Ext. Ka-4. 8. The x-ray examination of the skull of the injured Balvir Singh was done and report was obtained wherein fracture of right parietal bone with description of no callus seen noted. The x-ray report is Ext. Ka-5 9. As the investigation progressed and the Investigation Officer recorded statement of various prosecution witnesses including the informant and took note of the contents of check FIR and relevant entry made in the general diary. He proceeded to the spot and prepared the site plan Ext. Ka-7. After completing the entire investigation, charge sheet was filed by the Investigating Officer which is Ext. Ka-10. 10. Consequently, proceeding was committed to the court of Sessions, where the case was numbered as Session Trial No.99 of 1986, the Sessions Judge in turn heard both the sides on point of charge and was prima-facie satisfied with the case against the accused-appellant, accordingly, framed charge under Section 307 IPC. Charge was read over and explained to the accused-appellant who abjured charge and opted for trial. 11. Charge was read over and explained to the accused-appellant who abjured charge and opted for trial. 11. The prosecution, in order to prove guilt of the appellant examined as many as six witnesses namely Balvir Singh PW-1 is the injured himself. Vir Singh PW-2 is brother of the injured. Babu Singh PW-3 is the informant. Dinesh Kumar PW-4 has not supported the claim of the prosecution that he witnessed the incident. Dr. S.S. Singhal has medically examined the injured Balvir Singh. Suresh Chandra Srivastava PW-6 is the Investigating Officer, he has filed charge sheet against the accused-appellant. Except as above, no other testimony was adduced by the prosecution. 12. Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein various reasons have been counted for false implication of the accused-appellant on account of enmity. No evidence, whatsoever, was led by the defence. 13. The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against accused-appellant and sentenced him as aforesaid vide impugned judgment and order dated 24.12.1986. 14. Feeling aggrieved by the aforesaid judgment and order of conviction, the present accused-appellant has moved in appeal before this Court. 15. At the very outset, learned counsel for the accused-appellant did not assail the finding of conviction, however, he brought to the notice of this Court various factual and circumstantial aspects of this case touching on point that it is a case of sudden provocation and the offence was committed in fit of rage. There was no ill-will nor motive to commit any such crime as may be brought within the purview of Section 307 IPC. 16. The description of the incident as narrated in the first information report if taken to be correct then it is obvious that there was no motive for committing the offence and the action taken or offence committed was out of fit of rage, under facts and circumstances of this case and the offence cannot be termed to be an offence committed with the intention of causing death. 17. 17. Stress has been made on point that it is a case of single blow caused by iron rod and no second attempt was made nor any repeated blow was tried to be caused to the injured, therefore, the sentencing done in this case is not proportionate to the entirety of the offence committed and the intention/knowledge to commit the offence. 18. Fact is that charge under Section 307 IPC was not justified but at the most charge under Section 308 IPC was sufficient because intention to kill was obviously missing and the circumstances also establish the same fact beyond doubt. Precisely, learned counsel for the accused-appellant has submitted that the accused-appellant remained in jail initially for 8 days, thereafter for 15 more days and in all 23 days. Therefore, considering that particular aspect, sentence awarded by the trial court may be modified and restricted to fine only. 19. Learned AGA has opposed the prayer so made and has justified the sentence awarded against the accused-appellant by submitting that the trial court has already shown sufficient latitude in awarding sentence, the same need not be interfered by this Court. However, he has not disputed fact that it is a case of single blow caused by iron rod although he has particularized injury primarily x-ray report wherein fracture of right parietal bone was detected but no callus was seen. The trial court has judiciously recorded conviction and has awarded appropriate sentence. 20. Also considered the rival submissions and taken into consideration rival claims. 21. In the backdrop of the aforesaid particular aspects of this case and particularly the claim that it is a case of single blow caused by iron rod and initially, charge sheet was filed against the accused-appellant under Sections 308, 504, 506 IPC, and the medical examination report and x-ray report which describes nature of injury caused to be in shape of fracture of parietal bone with no callus bore endorsement of the concerned police officer that the case is one squarely covered under Section 325 IPC. 22. The trial Court has taken note of the various factual aspects of this case and passed a detailed and reasoned order based on material on record which needs no interference by this Court. Consequently, the conviction recorded by the trial Court is justified. 23. 22. The trial Court has taken note of the various factual aspects of this case and passed a detailed and reasoned order based on material on record which needs no interference by this Court. Consequently, the conviction recorded by the trial Court is justified. 23. On the sentencing part of the impugned judgment, argument has been advanced to the ambit that in this case, the appellant has no criminal history or history of previous convict and he should be given at least one chance and particularly in view of fact that for a period of last 32 years, he has not been involved in any criminal activity/the sentence awarded is too harsh. Therefore, that aspect of fair conduct and intention to commit the crime may be considered leniently while awarding sentence against him which particular aspect has escaped attention of the trial Judge and he had no occasion to ever ponder over the same. Admittedly, it is a case of single blow. 24. Obviously, it is admitted fact that only a single blow was caused to the injured Balvir Singh and there was no ill-will nor motive nor well thought-out plan to cause any such injury, therefore, it cannot be said that enormity of offence was to kill the injured Balvir Singh. There was no repetition of the iron rod blow and looking to the fact that the incident took place on 04.06.1985, it would be feasible, in the interest of justice and in the fitness of things that sentence of five years rigorous imprisonment as awarded by the trial court under Section 307 IPC be modified to one the period of imprisonment (23 days) already undergone coupled with fine Rs.10,000/- and in case of default in payment of fine, he will have to suffer additional imprisonment for two months. 25. Accordingly, sentencing part of the impugned judgment dated 24.12.1986 passed by the Sessions Judge, Lalitpur, in Session Trial No.99 of 1986 State Vs. Kaleem, arising out of Case Crime No.44 of 1985 under Section 307 IPC, Police Station- Jakhaura, District- Lalitpur, is hereby modified to the aforesaid extent while conviction is maintained. 26. The instant appeal is allowed, partly in aforesaid terms. 27. Kaleem, arising out of Case Crime No.44 of 1985 under Section 307 IPC, Police Station- Jakhaura, District- Lalitpur, is hereby modified to the aforesaid extent while conviction is maintained. 26. The instant appeal is allowed, partly in aforesaid terms. 27. However, it is directed that in case the amount of fine is realized then 50% of the amount of fine - say Rs.5000/- shall be given to the injured Balvir Singh or his successor, as the case may be. 28. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.