Sharu vs State Of Rajasthan

Dr. Pushpendra Singh Bhati, J

This Criminal Appeal under Section 374(1) Cr.P.C. has been preferred praying for the following reliefs:-

“It is therefore, prayed that this appeal may kindly be allowed and impugned Judgment of conviction and sentence passed by the Learned Additional session Judge Basnwara dated 3.11.2020 in session case no 191/2020 (CIS NO 143/2020) May very kindly be set aside and the accused-appellant may be acquitted of the offence under section 304 part 11 IPC or any other charge”

The matter pertains to an incident which occurred in the year 2011 and the present appeal has been pending since the year 2020.

Learned counsel for the appellant submits that this Criminal Appeal has been preferred against the impugned judgment dated 03.11.2020, passed by the learned Sessions Judge, Banswara, in Sessions Case No. 191/2019 whereby the appellant was convicted for the offences under Sections 304 II IPC, and sentenced to undergo 10 years R.I. and a fine of Rs. 3,000/- in default of payment of which he was to further undergo 03 months S.I.

Learned counsel for the appellant further submits that although the S.B. Criminal Misc. Suspension of Sentence Application (Appeal) No.818/2020 in S.B. Criminal Appeal No. 990/2020 was dismissed by this Court on 23.05.2022, of the total sentence of 10 years awarded to the appellant, he has undergone a custody period of about 03 years and 03 months and 14 days, as on 23.11.2022.

Learned counsel for the appellant further submits that under Section 304 Part II IPC the maximum sentence that may be awarded is 10 years, however, no minimum sentence has been prescribed.

Learned counsel for the appellant also submits that the learned Court below has rightly held that the case does not fall within the purview of Section 302 IPC but under Section 304 Part II IPC, as there is a lack of intention on the part of the appellant. The attention of this Court was also drawn to the testimony given by P.W.02-Tulsi.

Learned counsel for the appellant, further submits that the appellant does not have any criminal antecedents and that the incident in question was an isolated incident, one which was committed without any intention, and makes a limited submission that without making any interference on the merits/conviction, the sentence awarded to the appellant may be substituted with the period of sentence already undergone by him.

Learned Public Prosecutor opposes the same.

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:-

In 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.”

In 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…”

Looking into the peculiar factual matrix of the case, upon a perusal of the testimony of P.W.-02 Tulsi and the fact that the incident in question took place in the year 2011, about 11 years have elapsed since then, that the appellant has no criminal antecedents, that the appellant has undergone a custody period of about 03 years, 03 months and 14 days, as reflected from the custody report produced by the learned Public Prosecutor, and that there is no minimum punishment prescribed under Section 304 Part II IPC, so also 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 304 Part II IPC, this Court deems it fit and proper to reduce the sentence awarded to the appellant to the period already undergone by him. He shall be released forthwith if not required in any other case.

All pending applications stand disposed of. Record of the learned court below be sent back forthwith.