Rajasthan High Court - Jodhpur
Feroz Khan vs State Of Rajasthan on 7 May, 2022
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 233/1995
Feroz Khan
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Ms. Mehali Mehta.
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. Ms. Mehali Mehta, Advocate is appointed as Amicus Curiae to
argue the matter on behalf of the accused-appellant under the
free legal aid scheme of RSLSA. Her 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:
"It is, therefore, prayed respectfully that the judgment and
order of conviction of the learned Special Judge may kindly be
set aside and the petitioner may kindly be acquitted from the
charge"
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(2 of 4) [CRLA-233/1995]
4. The matter pertains to an incident which occurred in the year
1994 and the present appeal has been pending since the year
1995.
5. Learned counsel for the appellant submits that this Criminal
Appeal has been preferred against the impugned judgment dated
15.05.1995 passed by the learned Special Judge, E.C. Court,
Jodhpur in Criminal Sessions Case No.14/1995 whereby the
appellant was convicted for the offences under Sections 363 and
366 of IPC and sentenced to undergo one years' R.I. and two
years' R.I., a fine of Rs. 100/- each, in default of payment of
which he was ordered to further undergo three months R.I
respectively.
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 05.06.1995 passed in S.B.
Criminal Misc. Bail (Suspension of Sentence) No.247/1995
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. Learned Public Prosecutor opposes the same.
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)
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(3 of 4) [CRLA-233/1995]
"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..."
10. This Court observes that the statement given by P.W. 10
Doctor Kothari, states that it has not been proven beyond
reasonable doubt that there was sexual intercourse between the
accused-appellant and the victim, and that had there been forcible
sexual intercourse followed by resistance there against by the
prosecutrix, the same would certainly have left the telltale marks
on the body of the prosecutrix.
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 363 and 366 IPC, as
above, the sentence awarded to him is reduced to the period
already undergone by him. The appellant is on bail. He need not
surrender. His bail bonds stand discharged accordingly.
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(4 of 4) [CRLA-233/1995]
12. All pending applications stand disposed of. Record of the
learned court below be sent back forthwith.
(DR.PUSHPENDRA SINGH BHATI), J.
33-/Jitender//-
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