Rajasthan High Court - Jodhpur

Padma Ram And Ors vs State on 5 May, 2022

Bench: Pushpendra Singh Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 424/1994

Padma Ram And Ors.
----Appellant
Versus
State of Rajasthan
----Respondent

For Appellant(s) : Mr. Pradeep Shah
Mr. Chakravarti Singh
For Respondent(s) : Mr. Mukesh Trivedi, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

05/05/2022
1. In 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 Court, for the safety of

all concerned.

2. This criminal appeal under Section 374(2) Cr.P.C. has been

preferred claiming the following reliefs:-

"It is, therefore, most respectfully prayed that this appeal may
kindly be allowed, impugned judgment dated 17.08.1994
passed by Additional Sessions Judge, Barmer is Sessions Case
No.6/93 may kindly be quashed and set aside and the
appellants may be acquitted in this case."

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

1992 and the present appeal has been pending since the year

1994.

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4. Learned counsel for the appellants submits that this Criminal

Appeal has been preferred against the impugned judgment dated

17.08.1994 passed by the learned Additional Sessions Judge,

Barmer in Sessions Case No.06/93 whereby the appellants were

convicted for the offence under Section 304 Part-II read with

Section 34 IPC and sentenced to undergo 10 years R.I. and a fine

of Rs.100/- to each default of payment of which they were

ordered to further undergo 15 days S.I; & under Section 323 read

with Section 34 IPC sentenced to undergo 06 months S.I. with a

fine of Rs.50/- to each in default of payment of which they were

ordered to further undergo 07 days S.I.

5. Learned counsel for the appellants further submits that the

sentence so awarded to Uda Ram was suspended by this Hon'ble

Court, vide order dated 14.12.1994 passed in S.B. Criminal Misc.

Bail Application No.411/94; and sentence awarded to Deraj was

suspended by this Hon'ble Court, vide order dated 11.03.1996 in

S.B. Criminal Misc. IV Bail Application (suspension of sentence)

No.126/1996.

6. The incident is of 11.10.1992. The allegation is that while

Kayam was working in his agricultural land, he was attacked by

Navla, Uda, Ratna, Poonma, Hariya, Dera, Padma, Gokla & Magga

with lathis. The incident resulted into death of Kayam due to injury

received on head. It is fact on record that the land record was in

favour of Navla but for a long time possession was with Kayam.

Counsel for the appellant submits that an isolated incident

happened due to conflict arising out of possession of land, which

admittedly belonged to appellants, thus, a lenient view ought to

be taken by this Court while deciding the appeal.

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Counsel for the appellant submits that statements of PW-23

i.e. Chanesar & PW-26 i.e. Mishri, who were eye-witnesses, is

vague and that only supports the incident but reflects that they

reached upon hearing commotion, thus, their testimony cannot be

believed beyond a point. Counsel for the appellant has further

taken this Court to evidence of PW-13 Smt.Izu, PW-4 Khera & PW-

7 Vali, similarly is an after incident version, thus, attribution of the

crime is not clear from their depositions. Counsel for the

appellant further submits that at best it would be a case of

exceeding right of private defence.

Counsel for the appellant has also drawn attention of this

Court to the statements of PW-10 Dr. MM Purohit & PW-11 Dr. Dev

Kishan.

Counsel for the appellant at this stage submits that looking

into the age of matter and also discrepancy in the evidence

rendered including lack of attribution of fatal blow which caused

death of Kayam as well as the fact that an isolated land dispute

converted into a major incident, are the reasons enough for this

Court to grant limited indulgence for letting the sentence of

surviving appellants be substituted with the sentence already

undergone by them.

7. Learned counsel for the appellants, however, makes a limited

submission that without making any interference on

merits/conviction, the sentence awarded to the present appellants

may be substituted with the period of sentence already undergone

by them.

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8. Learned Public Prosecutor while opposing the appeal submits

that Kayam was admittedly in possession and thus, it cannot be

said to be a case on private defence. The crucial allegation is upon

Deraj (appellant no.2) of causing head injury on Kayam, which is

consistent among all the witnesses. Learned PP further submitted

that the court below has rightly convicted the appellants under

Section 304 Part-II read with Section 34 IPC and under Section

323 read with Section 34 IPC. Learned Public Prosecutor has

shown custody certificate of Deraj, which indicates custody of 03

years 05 months & 16 days and custody certificate of Uda Ram,

which indicates custody of 08 months & 07 days.

The appellant No.1 Padma Ram as per report submitted by

the SHO concerned has already expired on 24.10.2021.

9. 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

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

10. This Court after hearing counsel for the parties and perusing

record of case finds that the eye-witnesses are not as precise as

an eye-witness ought to be and mere omnibus allegations have

been made with reflects that they came at the site after hearing

the commotion, thus, somewhere clarity is lacking in statements

of witnesses, particularly PW-4 Khera, PW-7 Vali, PW-13 Izu, PW-

23 Chanesar & PW-26 Mishri.

The incident being of year 1992 and appellants have already

undergone some part of sentence, thus, the prayer of counsel for

the appellants for releasing accused on the sentence already

undergone by them is worth considering.

This Court in given circumstance after carefully examining