JUDGMENT : Virendra Kumar Srivastava, J. 1. The instant criminal appeal, under section 374(2) Criminal Procedure Code, 1973 (hereinafter referred to as 'Code'), has been filed against the judgment and order dated 29.3.2018, passed by learned Additional Sessions Judge, Court No. 1, Kheri in Sessions Trial No. 793 of 2012, arising out of case crime no. 1787 of 2012, under Section 307 and 326 IPC, police station (in short P.S.)-Kotwali Sadar, District- Lakhimpur Kheri, whereby the accused-appellant Rizwan (hereinafter referred to as 'Appellant') has been convicted and sentenced for ten years' rigorous imprisonment and fine of Rs. 7,500/- for offence under Section-307 IPC and for rigorous imprisonment of ten years and fine of Rs. 7,500/- for an offence under Section-326 IPC. All the sentences were directed to run concurrently. 2. Prosecution case, in brief, is that a written information (Ext. Ka-1) was filed by Pramod Kumar Verma (PW-1), son of Bhagauti Prasad, resident of village Bechepurwa, Hamlet Maksoha, P.S-Kotwali Sadar, District-Kheri on 04.9.2012 at about 09:30 a.m. at police station (in short P.S.) Kotwali Sadar, District-Kheri, mentioning therein that his daughter Kumari Rekha (PW-2) aged about 17 years was going on 04.9.2012 at about 08:00 a.m., to her school Sharda Nagar when on the way to her school appellant intercepted and asked her to follow him. It is further stated that when she (PW-2) denied to follow the appellant, he attacked on her with knife and caused severe injury to her whereupon she fell down at the place of occurrence. On being informed by someone, he (informant) rushed to the place of occurrence with his wife Rinki Devi (PW-3) and one Sushil Kumar (PW-4) and found that his daughter (PW-2) was groaning in pool of blood and appellant was causing injuries with knife. It is further stated that upon seeing the informant and other witnesses the appellant escaped from the place of occurrence throwing the knife. 3. Upon the said written information (Ext. Ka-1) FIR, chik report (Ext. Ka-2) was prepared; information was entered in G.D. report no. 25 (Ext. Ka-3) at 09:30 a.m. and case crime no. 1787 of 2012 was registered against the appellant. Investigation of the said case was handed over to S.I. Ram Swarth and Kumari Rekha Verma (PW-2) was sent to District Hospital Lakhimpur Kheri for her medical examination. Ka-2) was prepared; information was entered in G.D. report no. 25 (Ext. Ka-3) at 09:30 a.m. and case crime no. 1787 of 2012 was registered against the appellant. Investigation of the said case was handed over to S.I. Ram Swarth and Kumari Rekha Verma (PW-2) was sent to District Hospital Lakhimpur Kheri for her medical examination. She (PW-2) was examined by Emergency Medical Officer, District Hospital, Lakhimpur- Kheri on 04.9.2012 at 09:50 a.m. who noted the following injuries on her (PW-2) body and prepared injury report (Ext Ka-5):- "1. Incised wound of 6 cm x 0.5 cm x scalp deep on left side of head 6 cm above left ear tailing anteriorly. 2. Incised wound of 6.5 cm x 1.5 cm x Muscle deep on right side of neck, upper part touching ear tailing towards back. 3. Incised wound of 3 cm x 0.5 cm x muscle deep on right side of face 2 cm below outer corner of right eye tailing outside. 4. Incised wound of 3 cm x 0.4 cm x muscle deep between nose and upper lip area touching right side of nose tailing right outer side. 5. Incised wound of 1.5 cm x 0.4 cm x muscle deep on right side lower lip 0.5 cm below outer side of right mouth corner. 6. Abrasion of 0.5 cm x 0.4 cm on right lower part of face 3 cm below and away from right mouth corner. 7. Incised wound of 1.5 cm x 0.4 cm x skin deep on left side of chin 3 cm below left corner of mouth. 8. Incised wound of 5 cm x 2.5 cm x muscle deep on left side of back of chest, upper part 5 cm away and back from top of shoulder joint. 9. Incised wound of 1 cm x 0.3 cm x skin deep on back of chest 4 cm below C-7 vertebra. 10. Incised wound of 1 cm x 0.3 cm x skin deep on inner side of thumb of left hand in the proximal phalynx." 4. It is further noted by the doctor that all the injuries were caused by sharp edged weapon except injury no. 6, which was caused by friction of hard object and all injuries were fresh in duration. Injury no. 1, 2, 3 and 8 were kept under observation and X-ray was advised whereas rest injuries were simple in nature. It is further noted by the doctor that all the injuries were caused by sharp edged weapon except injury no. 6, which was caused by friction of hard object and all injuries were fresh in duration. Injury no. 1, 2, 3 and 8 were kept under observation and X-ray was advised whereas rest injuries were simple in nature. In X-ray examination held on 04.9.2012 by Dr. V.K. Verma no abnormality was detected (NAD) and X-ray report (Ext. Ka-6) was prepared. 5. Investigating Officer S.I. Ram Swarth inspected the place of occurrence and prepared site plan (Ext. Ka-4), recorded the statement of witnesses and filed a charge sheet (Ext- Ka-9) against the appellant before the competent Magistrate. Learned Magistrate took the cognizance and since the offence was triable by the Court of Sessions, after providing the copies of relevant police papers, committed the case to the Court of Sessions for trial. 6. Learned trial court, after due hearing, framed charge against the appellant for offence under Section-307 and 326 IPC and read over to the appellant to which he denied and claimed for trial. 7. During trial, in order to prove its case, prosecution examined Pramod Kumar Verma (PW-1), Rekha Devi (PW-2), Rinki Devi (PW-3) and Sushil Kumar (PW-4) as witnesses of fact. Formal witnesses, i.e., Doctor and Investigating Officer were not examined by the prosecution. Formal proof of the documentary evidence produced by the prosecution, i.e., chik FIR (Ext. Ka-2), G.D. report (Ext. Ka-3), site plan (Ext. Ka-4), injury report (Ext. Ka-5), X-ray report (Ext. Ka-6), discharge slip (Ext. Ka-7). report sent by I.O. to CMO (Ext. Ka-8) and charge sheet (Ext. Ka-9) were dispensed with by the defence counsel. 8. Learned trial court, after hearing the learned counsel for both the parties, convicted and sentenced the appellant as above by the impugned judgment and order. Aggrieved by the said judgment and order the appellant has preferred this appeal. 9. Heard Shri Dharam Trivedi, learned counsel for the appellant and Shri S.K. Mishra, learned Additional Government Advocate through video conferencing and perused the record. 10. Learned counsel for the appellant submitted that appellant is innocent and has been falsely implicated due to village partibandi and communal tension in the village. 9. Heard Shri Dharam Trivedi, learned counsel for the appellant and Shri S.K. Mishra, learned Additional Government Advocate through video conferencing and perused the record. 10. Learned counsel for the appellant submitted that appellant is innocent and has been falsely implicated due to village partibandi and communal tension in the village. Learned counsel further submitted that the statement of Kumari Rekha Verma (PW-2) is self-contradictory and the statement of other prosecution witnesses that they reached at the place of occurrence after getting the information and saw that appellant was causing injury to PW-2, is self-contradictory. Learned counsel further submitted that the appellant has been convicted for both the offences under Section-326 IPC and under Section-307 IPC whereas no grievous injury was found on the body of PW-2; doctor was also not examined by the prosecution to prove the gravity of the injury as to whether the injuries was grievous or sufficient to cause the death of PW-2 because according to injury report as well as X-ray report, all the injuries were simple in nature. Learned counsel further submitted that although the judgment passed by the lower Court is illegal and unjustified as the prosecution has failed to prove its case beyond reasonable doubt against the appellant but in view of the fact that appellant is poor and illiterate; he was aged about 20 years at the time of occurrence; he has no criminal history and there was no previous enmity with informant; and is languishing in jail since year 2012, he is not arguing this appeal on merit and in view of the above a lenient view is required to be adopted in sentencing the appellant. 11. Per contra, learned Additional Government Advocate vehemently opposed and submitted that there is no illegality in the impugned judgment and order passed by the learned trial Court as the prosecution story has been proved by the eyewitnesses including the injured eyewitness-Rekha Devi (PW-2). Learned counsel further submitted that ocular evidence is fully supported with medical evidence which has already been admitted by the learned counsel for the appellant during trial. Learned counsel further submitted that in view of the gravity of the offence no leniency is required to the appellant. 12. Learned counsel further submitted that ocular evidence is fully supported with medical evidence which has already been admitted by the learned counsel for the appellant during trial. Learned counsel further submitted that in view of the gravity of the offence no leniency is required to the appellant. 12. Pramod Kumar Verma (PW-1), informant, while supporting the prosecution story, has stated that at the time of occurrence, at about 08:00 a.m., his daughter Rekha Verma (PW-2), aged about 17 years, was going to Sharda Nagar for study. He has further stated that appellant Rizwan intercepted her on the way, forced her to follow him and when she (PW-2) objected; he (appellant) caused her severe injury with knife whereupon she (PW-2) got badly injured and fell down. He further stated that upon information, he, his wife- Rinki Devi (PW-3) and co-villager Sushil Kumar (PW-4) rushed to the place of occurrence and found that she (PW-2) was groaning due to pain and appellant was causing injury to her by knife. He further stated that seeing them appellant escaped from the place of occurrence. According to this witness (PW-1), thereafter, he prepared a written report (Ext. Ka-1) and filed it to P.S. Kotwali, District-Kheri and got the FIR registered. 13. Rekha Devi (PW-2), star witness of the prosecution, has stated that at the time of occurrence she was student of National Inter College, Sharda Nagar. She further stated that on the date of occurrence at about 08:30 a.m. she was going on foot to main road to catch the bus for school and as she was on the way, suddenly the appellant came from back side, pressed her mouth, dragged her in sugarcane field and tried to rape her. She further stated that when she objected, he inflicted injuries by knife whereupon she received two injuries on her head, five injuries on her face, one injury on her ear and one injury on her back. She further stated that upon alarm raised by her, many people of her village reached there and meanwhile she became unconscious. She further stated that she regained her consciousness at district hospital, Lakhimpur-Kheri. 14. PW-3 Smt. Rinki Devi and PW-4 Sushil Kumar (eyewitnesses) have also narrated the prosecution story in same way as stated by Pramod Kumar Verma (PW-1). She further stated that upon alarm raised by her, many people of her village reached there and meanwhile she became unconscious. She further stated that she regained her consciousness at district hospital, Lakhimpur-Kheri. 14. PW-3 Smt. Rinki Devi and PW-4 Sushil Kumar (eyewitnesses) have also narrated the prosecution story in same way as stated by Pramod Kumar Verma (PW-1). These eyewitnesses have been cross-examined by the defence at length but nothing has come out in their cross-examination to create any doubt on the veracity of the prosecution story. 15. In addition to above, the alleged occurrence, according to prosecution, happened on 04.9.2012 at about 08:00 am. In view of chik FIR (Ext. Ka-2) and GD report no. 25 (Ext. Ka-3), FIR was lodged on same day at 09:30 a.m. and the distance of place of occurrence from the police station has been shown 12 kms. Thus, the FIR was lodged within 1 hour and 30 minutes, which shows that there is no delay in lodging the FIR. Further, Rekha Devi (PW-2) was referred for medico-legal examination and according to medico-legal report (Ext. Ka-5) she was examined on 04.9.2012 at 09:50 a.m. From perusal of injury report (Ext. Ka-5), it further transpires that ten injuries were found on the various parts of the body of Rekha Devi (PW-2) (including face, head and ear) wherein nine were incised wounds which might have been caused by knife. 16. Formal proof of prosecution documentary evidence, i.e., chik FIR (Ext. Ka-2), GD report (Ext. Ka-3), site plan of occurrence (Ext. Ka-4), medico-legal report (Ext. Ka-5), X-ray report (Ext. Ka-6), discharge slip (Ext. Ka-7); requisition slip of X-ray report/ X-ray plate (Ext. Ka-8); charge-sheet (Ext. Ka-9), X-ray plate (material Ext. Ka-1) has been dispensed with by the defence counsel during the trial which shows that the genuineness of these documentary evidence were not disputed by the appellant which further shows that the ocular evidence is supported by the medical evidence. In addition to above, since the learned counsel for the appellant, during the argument, has specifically submitted that he is not arguing his appeal on merit, it further strengthen the submission of learned Additional Government Advocate that prosecution has successfully proved its case beyond reasonable doubt. 17. Now, the question arises whether the sentence passed by the learned trial Court is just and proper or not? 17. Now, the question arises whether the sentence passed by the learned trial Court is just and proper or not? According to the submission raised by the learned counsel for the appellant, appellant is poor, illiterate, having no criminal history and previous enmity with informant and is languishing in jail since year 2012, hence, a lenient view is to be adopted in sentencing him. In this case the appellant has been convicted for offence under Section-326 IPC and Section-307 IPC for which he has been awarded for ten years rigorous imprisonment each and fine of Rs. 7,500/- each for both offences. It has been further directed that both sentences to be run concurrently and period of detention in jail during trial was to be set off in the aforesaid sentence. 18. Appellant has been convicted for offence u/ss 307 and 326. Section 326 IPC deals with voluntarily causing grievous hurt by dangerous weapons or means whereas Section-307 IPC deals with an offence for attempt to murder. Both the provisions are here as under:- "Section-307 IPC-Attempt to murder:- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinafter mentioned. Attempts by life- convicts.- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death." "Section-326 IPC-Voluntarily causing grievous hurt by dangerous weapons or means.- Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 19. Thus, above provisions show that for the offence of attempt to murder where injury was also inflicted, the maximum sentence may be awarded for imprisonment for life or imprisonment which may extend to ten years and with fine and the same punishment has been provided for offence of voluntarily causing grievous hurt by dangerous weapons or means as provided in Section 326 IPC. 20. It is settled principle of sentencing and penology that undue sympathy in awarding the sentence with accused is not required. The object of sentencing in criminal law should be to protect the society and also to deter the criminals by awarding appropriate sentence. In this regard Hon'ble Supreme Court has observed in State of Madhya Pradesh vs. Saleem @ Chamaru, AIR 2005 SC 3996 which is as under:- "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." 21. 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." 21. Hon'ble Supreme Court in Gurmukh Singh vs. State of Harayana (2009) 15 SCC 635 , while discussing the relevant factors required to be taken into account for awarding sentence, has held as under:- "23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: a) Motive or previous enmity; b) Whether the incident had taken place on the spur of the moment; c) The intention/knowledge of the accused while inflicting the blow or injury; d) Whether the death ensued instantaneously or the victim died after several days; e) The gravity, dimension and nature of injury; f) The age and general health condition of the accused; g) Whether the injury was caused without pre- meditation in a sudden fight; h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; i) The criminal background and adverse history of the accused; j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; k) Number of other criminal cases pending against the accused; l) Incident occurred within the family members or close relations; m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused." 22. Coming to this case again, the record shows that occurrence was happened in the year 2012 and statement of the appellant under Section-313 of the Code was recorded before the learned trial Court on 15.11.2017 wherein he disclosed his age as 27 years which means that at the time of occurrence he was 22 years old. Further, from perusal of medico-legal report (Ext. Ka-5), X-ray report (Ext. Ka-6) and discharge slip (Ext. Ka-7), it transpires that although the injuries were inflicted on the vital part of the body of the PW-2 but none of them was found as grievous. In addition to above, she was discharged from hospital on 14.9.2012. Appellant, as submitted by his learned counsel, is poor, illiterate, having no criminal history, is languishing in jail for more than eight years whereas the alleged occurrence would have taken place on the spur of the moment. 23. Looking into the facts and circumstances of the case, the conviction of the appellant Rizwan under Section-307 and under Section-326 IPC is maintained and it requires no interference but in view of the law laid down by the Hon'ble Supreme Court in Gurmukh Singh (supra) and Saleem alias Chamaru (supra) sentence of ten years rigorous imprisonment for offence under Section-307 IPC and sentence of ten years rigorous imprisonment for offence under Section-326 IPC is reduced to rigorous imprisonment for eight years for each offences. Both the sentences shall run concurrently. Period of sentence undergone by the appellant shall be set-off as per provision of Section-428 of the Code but the fine awarded by the learned trial Court requires no interference and it is maintained. 24. Consequently, the appeal is partly allowed. 25. Let a copy of this judgment along with lower court record be sent to the learned Sessions Judge, Lakhimpur-Kheri for necessary information and compliance.