Rajasthan High Court - Jodhpur

Bhanwar Singh And Anr vs State on 9 May, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 411/1994

Bhanwar Singh And Anr.

----Appellant Versus State of Rajasthan

----Respondent

For Appellant(s) : Mr. Tanay Singh, Amicus Curiae For Respondent(s) : Mr. Anda Ram Choudhary, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 09/05/2022

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. Tanay Singh, Advocate is appointed as Amicus Curiae to

argue the matter on behalf of the accused-appellants under the

free legal aid scheme of RSLSA. His remuneration shall be paid by

the Rajasthan State Legal Services Authority as per the rules.

3. Mr. Tanay Singh, learned counsel appearing on behalf of the

appellants submits that this Criminal Appeal has been preferred

against the impugned judgment dated 03.08.1994, passed by the

learned Special Judge, Scheduled Caste and Scheduled Tribes

(Prevention of Atrocities) court, Pratapgarh in Special Sessions

Case No.22/1993 whereby the appellants were convicted for the

offences under Sections 3(1)(x) SC/ST (Prevention of Atrocities)

Act, 1989 and Section 448 & 323 IPC and were sentenced as

under:- (sentences to run concurrently)

(2 of 6) [CRLA-411/1994]

Bhanwar Singh

3 (1) (x) SC/ST (Prevention of Atrocities) Act, 1989 : 01 year RI and a fine of Rs.500/-

in default of payment of fine to further undergo 02 months RI.

448 IPC                        : 06 months R.I
323 IPC                        : 06 months R.I

                                 Bheru Singh

3 (1) (x) SC/ST
(Prevention of
 Atrocities) Act, 1989          : 01 year R.I and a fine of Rs.500/-
                                  in default of payment of fine to
                                  further undergo 01 month's RI.
323 IPC                        : 06 months R.I

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 02.09.1994 passed in S.B. Criminal Misc.

Bail (Suspension of Sentence) Application No.405/1994.

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

without making any interference on merits/conviction, the

sentence awarded to the present accused-appellants 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.

(3 of 6) [CRLA-411/1994]

6. 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..."

6.1. 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.

(4 of 6) [CRLA-411/1994]

6.2. 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.

6.3. 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 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

(5 of 6) [CRLA-411/1994]

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 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."

6.4. 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 them,