Bhera And Ors vs State Of Rajasthan
2022 Latest Caselaw 6711 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 232/1995

Bhera And Ors

----Appellant Versus State Of Rajasthan

----Respondent

For Appellant(s) : Mr. Deelip Kawadia.

For Respondent(s) : Mr. M.S. Bhati, PP.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

07/05/2022

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

1993 and the present appeal has been pending since the year

1995.

3. Mr. Deelip Kawadia learned counsel appearing on behalf of

the appellants submits that this Criminal Appeal has been

preferred against the impugned judgment dated 20.05.1995,

passed by the learned Special Judge, SC/ST (Prevention of

Atrocities), Act, 1989, in Special Sessions Case No.1/1994,

whereby the appellants were convicted for the offence under

Section 147 IPC and sentenced to undergo 6 months R.I. and a

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

ordered to further undergo one month's imprisonment and under

(2 of 7) [CRLA-232/1995]

Section 3(1)(v) SC/ST (Prevention of Atrocities), Act, 1989, the

appellants were convicted and sentenced to undergo 6 months

R.I. and a fine of Rs.100/- each, default of payment of which they

were ordered to further undergo one month's imprisonment.

3.1 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.

3.2 Learned counsel further submits that the sentence so

awarded to the appellants was however suspended by this Hon'ble

Court, vide order dated 05.06.1995 passed in S.B. Criminal Misc.

Bail/(Suspension of Sentence) Application No.248/1995.

3.3. Learned counsel, however, makes a limited submission that

without making any interference on merits/conviction, the

sentence awarded to the present revisionist-appellant(s) may be

substituted with the period of sentence already undergone by

them.

4. Learned Public Prosecutor opposes the same.

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

record of the case.

5.1. 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)

(3 of 7) [CRLA-232/1995]

"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

be met in the facts of the case if the sentence is reduced to

the period already undergone..."

5.2. 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

(4 of 7) [CRLA-232/1995]

undergone by the accused is less than the minimum sentence

prescribed by the relevant statute.

5.3. 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.

5.4. 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

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

(5 of 7) [CRLA-232/1995]

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-232/1995]

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."

5.5. 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 them. 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 persons, to the time / sentence

already served by them. 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 them.

5.6 Thus, the analogy drawn, from the precedent laws discussed

above, is that even under special laws, wherein a minimum

sentence for offences under the provision of the concerned statute

is prescribed, the Hon'ble Apex Court and this Hon'ble Court have

taken a consistent approach in reducing the sentence of the

accused to the period already undergone, even below the

(7 of 7) [CRLA-232/1995]

minimum sentence prescribed, owing to the special facts and

circumstances of each case.

6. This Court, therefore, owing to the special facts and

circumstances of the present case, particularly the long pendency

of the case and the old date of incident, as well as keeping in mind

the aforementioned precedent laws, the present appeal is partly

allowed. Accordingly, while maintaining the appellants' conviction

under Section 147 of IPC and Section 3(1)(v) SC/ST (Prevention

of Atrocities), Act, 1989, as above, the sentence awarded to them

is reduced to the period already undergone by them. The

appellants are on bail. They need not surrender. Their bail bonds

stand discharged accordingly. All pending applications stand

disposed of. Record of the learned court below be sent back

forthwith.

(DR.PUSHPENDRA SINGH BHATI), J.

32-/Jitender//-

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