Rajasthan High Court - Jodhpur

Banna Ram And Anr vs State on 4 May, 2022

Bench: Pushpendra Singh Bhati

                                        (1 of 7)                  [CRLA-248/1993]


     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                 S.B. Criminal Appeal No. 248/1993

Banna Ram And Anr
                                                                 ----Appellants
                                   Versus
State
                                                                ----Respondent


For Appellant(s)         :     Mr. Nitesh Mathur (Amicus Curiae)
For Respondent(s)        :     Mr. M.S. Bhati, PP.
                               Mr. I.R. Choudhary

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

04/05/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

2. Mr. Devendra Singh Bisht, who was earlier appointed as

Amicus Curiae to argue the matter on behalf of the accused-

appellants but Mr. Bisht was unreachable, despite several attempts

to contact, therefore, this Court, appoints Mr. Nitesh Mathur, to

argue the instant appeal on behalf of the accused-appellants as

Amicus Curiae under the free legal aid scheme. His remuneration

shall be paid by the Rajasthan State Legal Services Authority as

per the rules.

3. This criminal appeal under Section 374 Cr.P.C. has been

preferred claiming the following reliefs:

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4. The matter pertains to an incident which occurred in the year

1992 and the present appeal has been pending since the year

1993.

5. Learned counsel for the appellants submits that this Criminal

Appeal has been preferred against the impugned judgment dated

23.06.1993, passed by the learned Special Judge, SC/ST

(Prevention of Atrocities) Jodhpur in Sessions Case No.19/1993,

though acquitted the appellants for the offence under Section 3(1)

(4) of the SC/ST (Prevention of Atrocities) Act, but convicted the

appellants for the offences under Sections 3(1)(x) of the SC/ST

(Prevention of Atrocities) Act and Section 323 of IPC and for the

offence under Section 3(1)(x) of the SC/ST (Prevention of

Atrocities) Act, the appellants were sentenced to undergo six

months S.I. and a fine of Rs. 100/- each, in default of payment of

which they were ordered to further undergo ten days S.I.; for the

offence under Section 323 IPC, imposed a fine of Rs.250/- each, in

default of payment of which they were ordered to further undergo

one month's S.I.

5.1 Learned counsel submits that in the special circumstances,

where the matters are of extremely old pendency and unless there

are aggravating circumstances, the same need not be revisited on

merits, and thus, it is a fit case for interference of this Court for

passing of an order reducing the sentence awarded to the

appellants to the period already undergone by them.

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5.2     Learned counsel for the appellants further submits that the

sentence so awarded to the appellants was however suspended by

this Hon'ble Court, vide order dated 21.07.1993.

5.3 Learned counsel, however, makes a limited submission that

without making any interference on merits/conviction, the

sentence awarded to the present revisionist-petitioners may be

substituted with the period of sentence already undergone by

them.

6. Learned Public Prosecutor opposes the same.

7. Heard learned counsel for the parties as well as perused the

record of the case.

7.1. This Court is conscious of the judgments rendered in,

Alister Anthony Pareira Vs. State of Maharashtra (2012) 2

SCC 648 and Haripada Das Vs. State of W.B. (1998) 9 SCC

678 wherein the Hon'ble Apex Court observed as under:-

Alister Anthony Pareira (Supra) "There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances."

Haripada Das (Supra) "...considering the fact that the respondent had already undergone detention for some period and the case is pending for a pretty long time for which he had suffered both financial hardship and mental agony and also considering the fact that he had been released on bail as far back as on 17-1-1986, we feel that the ends of justice will

(4 of 7) [CRLA-248/1993]

be met in the facts of the case if the sentence is reduced to the period already undergone..."

7.2. This Court is also conscious of the judgments rendered by

this Hon'ble Court in Hakam Singh Vs. State of Rajasthan,

(2016) 3 CriLR 1294 and Puran Singh Vs. State of

Rajasthan, 2011 1 CriLR 662, pertaining to the Rajasthan

Excise Act, wherein it was clearly held that in special conditions,

owing to the facts and circumstances of a case, the minimum

sentence can be overlooked by the Hon'ble Court for the purpose

of passing an order, substituting the sentence awarded, with the

period already undergone by the accused, where the sentence

undergone by the accused is less than the minimum sentence

prescribed by the relevant statute.

7.3. Darshan Singh Vs. State of Rajasthan, 1995 Cr.L.R.

(Raj.) 208, was a case pertaining to the Arms Act, which also

prescribes a minimum sentence, wherein this Hon'ble Court ruled

in a similar manner as discussed hereinabove.

7.4. In Mohd. Firoz Vs. State of Madhya Pradesh (Criminal

Appeal No.612/2019, decided on 19.04.2022), wherein the

Hon'ble Apex Court, owing to the special facts and circumstances

of the case, overlooked the prescription of a minimum sentence

for offence under the relevant Section of the concerned Statute;

and observed as under:-

"42. In the recent case of Shatrughna Baban Meshram Vs. State of Maharashtra, (2021) 1 SCC 596 this court considering catena of earlier decisions in the light of section 302 read with section 376-A of IPC observed that as against section 302 IPC, while dealing with the cases under section 376-A IPC, a wider spectrum is available for consideration by the courts as to the punishment to be awarded. In the

(5 of 7) [CRLA-248/1993]

said case, this Court negatived the submission made on behalf of the appellant-accused that in the case based on circumstantial evidence, the death sentence should be commuted to the life imprisonment. However, considering the facts that the accused had not consciously caused any injury with an intent to extinguish the life of the victim, and that the offence in that case was under Clause Fourthly of Section 300 IPC, this Court had commuted the sentence of death penalty to the life imprisonment. The facts and circumstances of the case on hand are similar to the case of Shatrughna Baban Meshram with one distinction in that, Section 376A of IPC being applicable in the instant case.

43. Considering the above, we, while affirming the view taken by the courts below with regard to the conviction of the appellant for the offences charged against him, deem it proper to commute, and accordingly commute the sentence of death for the sentence of imprisonment for life, for the offence punishable under Section 302 IPC. Since, Section 376A IPC is also applicable to the facts of the case, considering the gravity and seriousness of the offence, the sentence of imprisonment for the remainder of appellant's natural life would have been an appropriate sentence, however, we are reminded of what Oscar Wilde has said - "The only difference between the saint and the sinner is that every saint has a past and every sinner has a future". One of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender. Hence, while balancing the scales of retributive justice and restorative justice, we deem it appropriate to impose upon the appellant-accused, the sentence of imprisonment for a period of twenty years instead of imprisonment for the remainder of his natural life for the offence under section 376A, IPC. The conviction and sentence recorded by the courts below for the other offences under IPC and POCSO Act are affirmed. It is

(6 of 7) [CRLA-248/1993]

needless to say that all the punishments imposed shall run concurrently.

44. Before concluding, we would like to place on record our gratitude and appreciation for the invaluable assistance provided and services rendered by the learned Senior Advocate Mr. Marlapalle, appearing for the appellant- accused, appointed through the Supreme Court Legal Services Committee."

7.5. This Court, therefore, observes, as is revealed from herein

above, that the Hon'ble Apex Court, in Mohd. Firoz (supra), held

that the Court may, in the interest of justice, reduce the sentence

awarded to the accused to the period of sentence already

undergone by him. More so, this would be directly when the

matter is an old one, and a deserving case at that, to reduce the

sentence awarded to an accused person, to the time / sentence

already served by him. Similarly, in special acts, with regard to the

age/pendency of the matter, depending on the facts and

circumstances of the case, the Court may deem it a fit case for

applying the same aforementioned principle to reduce the

sentence awarded to the period already undergone by him.