[Cites 3, Cited by 0]
Rajasthan High Court - Jodhpur
Smt.Kali vs State on 9 December, 2025
Bench: Farjand Ali, Anand Sharma
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc(Pet.) No. 1396/2011
Smt.kali W/o Kanti, R/o Village Siyatalai, Samriya, Police Station
Sadar, Banswara
----Petitioner
Versus
State Of Rajasthan
----Respondent
For Petitioner(s) : Ms. Shobha Prabhakar, Amicus Curiae
For Respondent(s) : Mr. Rajesh Bhati, PP
HON'BLE MR. JUSTICE FARJAND ALI
HON'BLE MR. JUSTICE ANAND SHARMA
Order
Reportable-
ORDER PRONOUNCED ON ::: 09/12/2025
ORDER RESERVED ON ::: 01/12/2025
BY THE COURT:- (per Hon'ble Mr. Justice Farjand Ali )
1. The present Misc. Petition has been instituted pursuant to
the communication dated 04.08.2011 addressed by the
learned Additional Sessions Judge (Fast Track No.1),
Banswara, informing about an anomaly in the final judgment
dated 18.07.2011 rendered by a Coordinate Division Bench
of this Court in Criminal Appeal No.374/2004 was brought to
the Court's notice.
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2. The matter has remained pending for a considerable period
of time. Despite repeated attempts at service, no one
appeared on behalf of the petitioner. Upon the Court's
request, Ms. Shobha Prabhakar, Advocate, graciously
consented to assist this Court.
3. In these circumstances, this Court appointed Ms. Shobha
Prabhakar, Advocate, as Amicus Curiae to assist the Court,
and granted her adequate time to examine the record.
4. The relevant factual matrix is that one Smt. Kali was
convicted by the Trial Court in session case no.90/2003 on
05.02.2004, for the offence punishable under Section 302
IPC and was sentenced to undergo life imprisonment along
with fine and the corresponding default clause. Aggrieved
thereby, she preferred Criminal Appeal No.374/2004 before
this Court, which came to be partly allowed by the Division
Bench on 18.07.2011. By the said judgment, her conviction
under Section 302 IPC was set aside and she was instead
convicted for the lesser offence under Section 304 Part I IPC.
5. It appears that the Division Bench, while deciding the
appeal, acted on the assumption that the appellant, a tribal
woman had remained continuously in judicial custody from
07.07.2003 onwards till the date of decision i.e. 18.07,2011.
This assumption stemmed from a communication dated
24.03.2005 sent by the learned Additional Sessions Judge,
Banswara to the Registry of this Court, stating that although
the appellant had been granted the benefit of bail by this
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Court on 01.04.2004 but she was unable to furnish the
requisite bail bonds, and therefore continued to remain
incarcerated up to 24.03.2005. Proceeding on the belief that
she had never been released thereafter, the Division Bench
reduced the sentence awarded under Section 304 Part I IPC
to the period of imprisonment already undergone and
directed her immediate release.
6. Subsequently, however, the true factual position emerged,
revealing that the said assumption was erroneous. Although
the application for suspension of sentence was indeed
allowed by this Court on 04.11.2004, the order remained
inoperative for a substantial duration owing to the appellant's
failure to furnish bail bonds. It later transpired that she
eventually submitted the requisite bail bonds only on
23.12.2005, upon which she was released from the Central
Jail on the same date. Hence, she had not been in
uninterrupted custody as was presumed by the Division
Bench.
7. This discrepancy occurred due to a communication lapse
involving the Registry of this Court, the Trial Court, the
governmental authorities, and the office of the Public
Prosecutor. On the date of final hearing i.e., 18.07.2011, the
accurate custody details of the appellant were regrettably
not presented before the Division Bench. The Public
Prosecutor, who was duty-bound to place the correct custody
record on the judicial file, failed to apprise the Court that the
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appellant had been released on bail on 23.12.2005 and was
not in continuous detention thereafter.
8. Had this material fact been duly placed before the Bench at
the appropriate time, the operative portion of the judgment,
particularly paragraph No. 13, might have been framed in an
altogether different manner. The present petition thus arises
to address and rectify the anomaly occasioned by this
inadvertent but consequential lapse.
9. The incongruity that surfaces in the present matter is that,
although the appellant was convicted for the offence under
Section 304 Part I of the IPC and was presumed by the
Coordinate Bench to have remained incarcerated for a period
of eight years, on the strength of which she was directed to
be released forthwith upon deposit of the fine, the
contemporaneous record discloses an altogether different
factual scenario. In actuality, her custodial detention, both
police and judicial, extended merely from 07.07.2003 to
23.12.2005.
10. We have heard Amicus Curiae and the learned counsel
for the respondent , also gone through the relevant material
minutely.
11. Having heard and upon a meticulous appraisal of the
material available on record, it is manifest that the
discrepancy arose either from an inadvertent lapse on the
part of the prosecuting agency or from a communication
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deficit between the trial court's administrative office, the
prosecution, and the concerned Government authorities.
12.The incident pertains to the year 2003. It stands admitted
that the appellant and the deceased hailed from an indigent
household situated in the remote and hilly terrain of
Banswara, an area bereft of uninterrupted road connectivity,
with the nearest police station being situated at a distance of
approximately 25 kilometres. The appellant, belonging to a
socio-economically marginalized stratum, has remained at
liberty for nearly two decades. She was 32 years of age at
the time of the occurrence and is now approximately 55 years
old.
13.These circumstances assume considerable significance while
this Court arrives at its final conclusion. Even though the
earlier presumption of eight years' custody is demonstrably
erroneous, the actual period of incarceration, about two
years, when viewed in conjunction with the efflux of twenty
long years, renders it wholly inequitable and impracticable to
direct her recommittal to prison at this juncture.
14.Learned Public Prosecutor has, with commendable fairness,
conceded that the appellant has no prior criminal antecedents
and that no subsequent complaint has been registered
against her since her release.
15.The prosecution narrative itself indicates that the charge
stemmed from the alleged homicidal act committed against
her husband. The episode appears to have transpired within
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the domestic milieu: the husband (Kanti) had brought chicken
and liquor from the market, and his wife (Kali), prepared the
chicken meat. During this time, Kanti was consuming liquor in
the aangan. In this backdrop, the husband, having arrived
late, instructed the appellant to serve food. Upon being
served, a verbal altercation seems to have ensued, as the
appellant, aggrieved by his delayed arrival, reprimanded him.
This provoked a quarrel and a physical scuffle (hathapai)
between the two. In the heat of the moment, she seized an
axe lying within the household and delivered a solitary blow,
causing him to collapse. Significantly, apart from this single
injury, no other external mark of violence was discerned on
the deceased.
16.At this juncture, it is apposite to reproduce Section 304 of
the Indian Penal Code for ready reference, which delineates
the punishment for culpable homicide not amounting to
murder. The provision reads as under:
"304. Punishment for culpable homicide not amounting to murder.--
Whoever commits culpable homicide not amounting to murder shall be
punished with imprisonment for life, or imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine, if the act by which the death is caused is done with the
intention of causing death, or of causing such bodily injury as is likely to
cause death,or with imprisonment of either description for a term which
may extend to ten years, or with fine, or with both, if the act is done
with the knowledge that it is likely to cause death, but without any
intention to cause death, or to cause such bodily injury as is likely to
cause death. "
17.A plain reading of the statutory text makes it evident that
under Section 304 Part I IPC, the Court is vested with a wide
sentencing discretion, permitting the imposition of either
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imprisonment for life, or imprisonment of either description
for a term which may extend to ten years, in addition to fine.
The legislative expression "which may extend to ten years"
consciously confers upon the Court a flexible sentencing
spectrum ranging from one day to ten years, enabling the
sentencing judge to tailor the punishment in accordance with
the totality of circumstances, including the nature of the act,
the degree of intention or knowledge, the socio-economic
milieu of the accused, the situational provocation, and the
overarching demands of justice.
18.In exercising this discretion, the Court is obligated to
calibrate the quantum of punishment strictly in accordance
with the factual matrix and mitigating circumstances borne
out from the record. The peculiarities of the present case ,
the domestic setting of the altercation, the spontaneous and
heat-of-the-moment nature of the act, the absence of any
premeditation, the solitary blow inflicted with no repeated
assault, the indigent and marginalized background of the
appellant, her gender and vulnerability, as well as her
antecedent conduct unmistakably situate the matter within
the second limb of Section 304, i.e., within the bracket of
punishment "which may extend to ten years." It is within this
permissible statutory range that the Court must judiciously
exercise its sentencing discretion post-conviction.
19.At this stage, the Court is confronted with a peculiarly
perplexing and disquieting situation. The Coordinate Bench,
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while proceeding on materially incorrect custody information,
had effectively modulated the sentence under Section 304
Part I IPC to eight years, which it believed had already been
undergone. The question that now arises is whether, in the
altered circumstances revealed after the judgment, this Court
may revisit the quantum of sentence and reduce it to the
period actually undergone. The justification for such
reconsideration is fortified by several compelling factors,
which merit articulation in unequivocal terms.
20.The discrepancy that occurred was not attributable to the
appellant in any manner; rather, it arose from a systemic
lapse involving the Registry of this Court, the Trial Court, the
governmental authorities, and the office of the Public
Prosecutor. The burden of this administrative
miscommunication an error entirely external to the appellant
cannot in law or in equity be foisted upon an impoverished
tribal woman, who lacked both agency and awareness to
correct the record. To hold otherwise would amount to visiting
upon her the consequences of institutional omissions, a
course wholly antithetical to the guarantees of fairness and
justice.
21.Another pertinent question that troubles the judicial
conscience is why this petition itself remained undecided for
such an inordinate duration nearly fourteen long years. The
delay, though regrettable, underscores that the present
proceedings do not partake the character of a "review" in the
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strict criminal-procedural sense, for it is settled that criminal
courts do not exercise review jurisdiction. This is not a case
of revisiting a concluded finding; rather, it is one where a vital
foundational fact, the appellant's actual custody period was
never before the Court at all at the time the earlier judgment
was rendered. Had this material been available, the operative
directions of the Coordinate Bench would assuredly have
been different. Thus, the exercise undertaken herein is not a
review, but a necessary judicial correction compelled by the
surfacing of facts previously not brought before the court by
inadvertence. The judgment dated 18.07.2011 appears to
have been rendered on the basis of an incorrect fact
furnished by the Public Prosecutor, on account of which the
Coordinate Bench may have presumed that the total period of
incarceration undergone by the appellant was eight years.
However, she had actually undergone only two years of
imprisonment. This factual position was subsequently brought
to the notice of this Court by the learned Additional Sessions
Judge through a formal communication. An anomalous
situation has thus arisen, inasmuch as the judgment dated
18.07.2011 is factually incorrect with respect to the period of
custody undergone by the appellant. The question, therefore,
is whether such an erroneous factual premise should be
allowed to stand, or whether it ought to be rectified. It is well
settled that courts are expected to ensure that their
judgments are factually and legally sound. At the same time,
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any modification sought on the basis of a new fact does not
ordinarily fall within the limited scope of review jurisdiction.
22.Equally significant are the human and relational dimensions
of the case. The appellant, Kali, and the deceased, Kanti,
were husband and wife, a marital relationship that had
endured for an estimated fifteen years or more, considering
the rural and traditional milieu in which they lived. This was
not an act directed against a stranger or an adversary; it
arose within the intensely personal sphere of matrimonial life.
The victim was not an outsider, he was her own husband, and
the fatality resulted from a momentary eruption of emotions
within the privacy of their home. This circumstance, though
tragic, constitutes a recognized mitigating factor in
sentencing jurisprudence.
23.The Court cannot turn a blind eye to the context in which the
incident unfolded. The material on record indicates that the
deceased exhibited a rough and insensitive behavioural
pattern: he would return home late without intimation, often
in the company of friends, after purchasing chicken and
liquor; he would sit in the courtyard drinking while the
appellant, as was customary, prepared the food. Preparing a
meal particularly in a rural household, is not an instantaneous
exercise like boiling packaged noodles; it demands time,
labour, and sustained attention. It is entirely conceivable that
the delay in serving food, combined with the deceased's
uninformed late arrival and intoxicated state, precipitated
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irritation and verbal exchange, culminating in the unfortunate
altercation. These elements, rooted in the lived reality of the
parties, cannot be trivialized or ignored, for they speak to the
emotional turbulence, fatigue, and provocation experienced
by the appellant at that moment.
24.In sum, these cumulative circumstances- administrative
lapses not attributable to the appellant, the absence of the
crucial custody fact at the time of the earlier judgment, the
peculiar delay in disposal of the present petition, the intimate
spousal relationship between the parties, the behavioural
pattern of the deceased, and the situational provocation
inherent to the domestic environment, reinforce the necessity
of modulating the sentence within the legally permissible
range and ensuring that justice is tempered with compassion,
proportionality, and humane considerations.
25.This Court is reminded of the well-settled jurisprudential
position that modern penology accords primacy to
rehabilitative and reformative considerations while
determining the appropriate sentence. Crime, in its essential
character, is often a pathological deviation rather than an
immutable trait, and the offender particularly one emerging
from a disadvantaged environment remains amenable to
reformation. The response of the State, therefore, must lean
more towards rehabilitation than retribution. The sub-culture
that precipitates anti-social conduct is to be corrected not
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through severity or vengeance but through re-culturization
and constructive reintegration.
26.Harsh and savage punishments belong to antiquated eras;
contemporary criminal jurisprudence perceives sentencing as
a calibrated mechanism to reshape a person who has
momentarily deviated into criminality. The collective interest
of society lies not in the destruction of such an individual but
in his or her reclamation as a responsible citizen. A
therapeutic, rather than an in terrorem, outlook ought to
guide sentencing courts, for indiscriminate or brutal
incarceration frequently scars the mind instead of reforming
it. It has been aptly observed that if the objective is
retribution, one must injure; but if the objective is reform,
one must improve , and human beings are not improved by
injuries.
27.The reformative approach is, therefore, not an act of
benevolence but a constitutional and jurisprudential mandate.
Criminal law, while upholding societal order, must
simultaneously strive to promote the rehabilitation of the
offender in a manner consistent with social justice and the
moral conscience of the community. Courts are thus enjoined
to prefer reformative measures over disproportionately harsh
sentences, particularly where the circumstances demonstrate
an absence of entrenched criminality or premeditated
violence.
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28.While determining the appropriate quantum of sentence,
certain well-recognized factors necessarily guide judicial
discretion. These include:
(i) the nature and gravity of the offence;
(ii) the statutory penalty prescribed;
(iii) the manner and circumstances of its commission;
(iv) the proportionality between the crime and the proposed
punishment;
(v) the age and gender of the offender;
(vi) the character and personal circumstances of the
offender;
(vii) the absence or existence of antecedents;
(viii) the demonstrable possibility of reform;
(ix) the impact of the offence on social order and public
interest; and
(x) the overall personality profile of the offender, reflected
through age, background, antecedents, and surrounding
circumstances.
29. What ultimately constitutes a 'proper sentence' is neither an
excessively harsh nor a disproportionately lenient
punishment. Judicial discretion in sentencing must never
descend into arbitrariness or caprice; rather, it must remain
faithful to the principle of proportionality. The punishment
must correspond to the factual substratum of the case, the
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gravity of the act, the manner in which it unfolded, and the
personal circumstances such as age, gender, antecedents,
and prospects of reform of the convicted person.
30.In light of the cumulative circumstances the domestic and
intensely personal nature of the incident, the fact that the
deceased was none other than the appellant's own husband,
whose death, though caused in a moment of grave
provocation, has undeniably inflicted upon her a deep and
irreversible personal loss; for what punishment could be
greater than the sting of widowhood and the desolation of a
life condemned to solitude, the appellant's impoverished
background, the absence of any criminal antecedents, the
efflux of nearly two decades, and her having already
undergone approximately two years of custodial
imprisonment, this Court is of the considered view that the
sentence already undergone would amply suffice to meet the
ends of justice.
31.Accordingly, and in view of the foregoing discussion, this
Court is of the firm view that no further custodial sentence is
warranted. The ends of justice stand fully satisfied with the
period of incarceration already undergone by the appellant.
32. For the sake of clarity, it is necessary to state that this Court
is neither altering nor reviewing its earlier judgment or the
final operative directions contained therein. The conviction of
the appellant under Part I of Section 304 IPC, as recorded by
the Coordinate Bench, remains wholly undisturbed. Likewise,
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the conclusion that the appellant is to be released on the
basis of the period of custody already undergone also
continues to stand. The Court is only correcting an
inadvertent factual error that had crept into the earlier
judgment, wherein the appellant's period of incarceration was
erroneously recorded as eight years due to failure of the
other stakeholders, to provide proper information. The correct
period of actual custody, as now duly verified, is two years,
and the judgment shall stand read accordingly to this limited
extent. This factual correction does not, in any manner,
amount to a review or alteration of the substantive findings
or ultimate directions issued by the Coordinate Bench.
33.At a human level, this Court cannot remain unmindful of the
stark reality that directing this impoverished woman to
undergo the remaining six years of the sentence, after twenty
long years of struggle and having already borne the
irreversible personal consequences of the incident, would be
an unduly harsh course. In truth, viewed through the prism of
equity and conscience, it does not even seem just or humane
to send her back to prison for the unserved portion of the
term.
34.Consequently, the instant Miscellaneous Petition stands
disposed of. As the appellant is already on bail, she shall not
be required to surrender before the concerned authorities.
Any warrants or notices, if issued pursuant to the earlier
order of conviction or sentence, are hereby recalled.
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Furthermore, the appellant shall not be required to mark her
appearance before the trial court, as was directed at the time
of suspension of sentence.
35.This order is passed in furtherance of the communication
made by learned trial court judge, therefor shall be taken
altogether with judgment dated 18.07.2011 passed in D.B.
Criminal Appeal No.374/2004.
36.Ms. Shobha Prabhakar, learned Amicus Curiae, shall be paid
remuneration in accordance with the norms of the State Legal
Services Authority.
(ANAND SHARMA),J (FARJAND ALI),J
40-Mamta/-
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