Rajasthan High Court - Jodhpur
Sardar And Anr vs State on 17 May, 2022
Bench: Pushpendra Singh Bhati
(1 of 5) [CRLA-321/1995]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 321/1995
Sardar And Anr.
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. Bhagat Dadhich.
For Respondent(s) : Mr. Mohd. Javed, PP.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
17/05/2022
1. This criminal appeal under Section 374 Cr.P.C. has been
preferred claiming the following reliefs:
"It is, therefore, respectfully prayed that this appeal may
kindly be allowed and the appellants may be acquitted of the
charges levelled against them."
2. The matter pertains to an incident which occurred in the year
1994 and the present appeal has been pending since the year
1995.
3. Learned counsel for the appellant submits that this Criminal
Appeal has been preferred against the impugned judgment dated
15.07.1995 passed by the learned District and Sessions Judge,
Dungargarh in Sessions Case 113/94 whereby the appellants were
convicted for the offences under Section 304 Part-II and
sentenced to undergo 07 years' R.I. and a fine of Rs. 1,000/- each
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and in default of payment of which they were ordered to further
undergo 6 months' R.I..
4. Learned counsel for the appellants submits that the incident
is of 02.10.1994, when an altercation regarding the tilling of the
agricultural land occurred between the parties, as the accused
tried to restrain the complainant from going ahead for tilling the
agricultural land.
5. Learned counsel for the appellants has drawn attention of
this Court to the statement of PW-1 Soma, who is an injured
witness and is father of the deceased, who has deposed that while
he was trying to till the land in the morning at about 9:00 o' clock
before Deepawali, the accused Sardar, Bapu and Ujma picked up a
fight with him. The PW-1 has further deposed that his nephew
Shanker was also with him. The PW-1 has also deposed that
Sardar gave a lathi blow to him and Bapu also inflicted injury upon
him. Upon seeing of Soma being injured, his son Akhma came
running and was attacked by the accused persons by giving him
lathi blows.
6. Learned counsel for the appellants further submits that the
best star witness Soma does not distinguish between the three
accused Sardar, Bapuda and Ujma whereas the learned trial court
has convicted Sardar & Bapuda only whereas Ujma has been
convicted under Section 323 of IPC and has been let out by the
undergone sentence of nine months.
7. Learned counsel for the appellants has further taken this
Court to the statement of Shanker PW-2, who also supportted the
story of Soma, but has tried to distinguish and has said that all
three accused persons inflicted injuries upon Soma, however, the
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head injuries is attributed to Sardar & Bapuda. Learned counsel
also submits that the contradiction in the key witnesses as well as
an admitted position that Lala came after the incident creates a
suspicion in the story of the prosecution for which the benefit of
doubt has to be given to the appellants. Learned counsel further
submits that the appellant Sardar is 73 years old and Bapu is 50
years old at present and they have already undergone a custody
period of nine months and twelve days.
8. Learned counsel for the appellant at this stage submits that
the appellants were neither criminals nor they used any weapon,
rather it was a small altercation for tilling of land between two
farmers, which suddenly erupted into the incident whereas even
the original dispute was going on between the accused persons
and Soma, and Akma was no where in the picture. Learned
counsel, 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.
9. 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 26.07.1995 passed in S.B.
Criminal Misc. Bail (SOS) Application No.328/1995.
10. Learned Public Prosecutor opposes the same.
11. This Court on conjoint consideration of the statement of PW-
1, who is a star witness of the prosecution and he alleges common
allegation upon all three accused persons; the statement of
Shanker PW-2 who also alleges omnibus allegation but specifies a
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bit regarding the head injury; the statement of Lala Ram PW-3 as
well as considering that this was a sudden eruption of an
altercation where the parties did not intend to cause death; the
original dispute was going on between Soma and the accused
persons; learned trial court has let go Ujma with nine months
custody for the offence under Section 323 IPC; the fact that the
incident is of 1994 and looking into the age of appellants, the
sentence awarded to the present appellants is substituted with the
period of sentence already undergone by them.
12. 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..."
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13. 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 Section 304 Part-II IPC, as above,
the sentence awarded to him is reduced to the period already
undergone by them. The appellants are on bail. They need not
surrender. Their bail bonds stand discharged accordingly.
14. All pending applications stand disposed of. Record of the
learned court below be sent back forthwith.
(DR.PUSHPENDRA SINGH BHATI), J.
31-Sudheer/-
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