Rajasthan High Court - Jodhpur
Shanker vs State on 7 May, 2022
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 459/1993
Shanker
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. L.S. Udawat
For Respondent(s) : Mr. Mukhtiyar Khan, P.P.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
07/05/2022
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 Cr.P.C. has been
preferred claiming the following reliefs:
"It, is, therefore, humbly prayed that your Lordship may
be pleased to accept this appeal and set aside the conviction
and sentence awarded to the accused-appellant."
3. Mr. L.S. Udawat, Advocate is appointed as Amicus Curiae to
argue the matter on behalf of the accused-petitioners under the
free legal aid scheme of RSLSA. His remuneration shall be paid by
the Rajasthan State Legal Services Authority as per the rules.
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4. The matter pertains to an incident which occurred in the year
1990 and the present appeal has been pending since the year
1993.
5. Learned counsel for the appellant submits that telephonic
information was received on 06.03.1990 by the S.H.O. of Police
Station Sangwara, alleging that acid was thrown on a person. On
the basis of this oral complaint, an F.I.R. was lodged under
Sections 307, 326, 341 I.P.C. and that after the investigation was
completed, the learned Sessions Court framed charges under
Sections 307 and 326 I.P.C. and while acquitting him under
Section 307 convicted him under Section 326 I.P.C.
5.1 Learned counsel further submits that this Criminal Appeal
has been preferred against the impugned judgment dated
25.10.1993 passed by the learned Sessions Judge, Dungarpur in
Sessions Case 31/1990 whereby the appellant was convicted for
the offence under Section 326 I.P.C. and sentenced to undergo 4
years R.I. along with a fine of Rs. 500/-, in default of payment of
which he was ordered to further undergo 2 months S.I.
6. Learned counsel for the appellant further submits that the
sentence so awarded to the appellant was however suspended by
this Hon'ble Court, vide order dated 25.11.1993 passed in S.B.
Criminal Misc. Application 440/1993.
7. Learned counsel for the appellant, however, makes a limited
submission that without making any interference on
merits/conviction, the sentence awarded to the present appellant
may be substituted with the period of sentence already undergone
by him.
8. Leaned Public Prosecutor opposes the same.
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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
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 observes that P.W. 8 and P.W. 9, Mr. Vishwanath
and Mr. Ashok Kumar, both eye - witnesses, have turned hostile
and moreover, that there was a long standing dispute between the
concerned parties, who are close relatives and therefore this is a
case of motivated litigation.
11. In light of the limited prayer made on behalf of the appellant,
and keeping in mind the aforementioned precedent laws, the
present appeal is partly allowed. Accordingly, while maintaining
the appellant's conviction under Sections 326 IPC, as above, the
sentence awarded to him is reduced to the period already
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undergone by him. The appellant is on bail. He need not
surrender. His bail bonds stand discharged accordingly.
12. All pending applications stand disposed of. Record of the
learned court below be sent back forthwith.
(DR.PUSHPENDRA SINGH BHATI), J.
25-Jitender/-
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