The main legal point established in the judgment is the court's discretion to substitute the sentence with the period already undergone by the appellant, considering the serious lacunae in the prosecution case and the application of precedent laws.

JUDGMENT

Pushpendra Singh Bhati, J. - 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 accused appellant may be acquitted of all the charges leveled against him."

2. Mr. Himanshu Trivedi, Advocate is appointed as Amicus Curiae to argue the matter on behalf of the accused-petitioners 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. The matter pertains to an incident which occurred in the year 1988 and the present appeal has been pending since the year 1994.

4. Learned counsel for the appellant submits that this Criminal Appeal has been preferred against the impugned judgment dated 22.04.1994 passed by the learned Additional Sessions Judge, Bhilwara in Sessions Case No. 46/88, whereby the appellant was convicted for the offences under Sections 325, 452, 147, 352 IPC and sentenced as under:-

(Sentences will run concurrently).

Section 325 IPC:- Four years' R.I. and a fine of Rs. 1000/- in default of payment of which he was ordered to undergo further two months' R.I.

Section 452 IPC:- Two years' R.I. and a fine of Rs. 500/- in default of payment of which he was ordered to undergo further one months' R.I.

Section 147 IPC:- Two months' R.I.

Section 352 IPC:- One months' R.I.

5. Learned counsel for the appellant submits that the incident in question happened on 17.06.1988 and 34 years have elapsed since then. Learned counsel further submits that the prosecution case was wavering from the beginning as the critical and crucial evidence of doctor was not led by the prosecution and thus, neither the postmortem report and nor the injury report could be examined/cross-examination before the learned trail court.

6. Learned counsel for the appellant further submits that the essential lacunae of the Investigating Officer not having been examined is also on record. Learned counsel further submits that the appellant has undergone six months of custody during trial. Learned counsel also submits that the learned trial court has arrived at a conclusion that out of twelve persons only three were responsible and that too Madan and Jay have been given the benefit of probation of offenders act and even Madan was facing the similar allegations as that of the present appellant. Learned counsel for the appellant further submits that PW-3 Gyanchand and PW-4, who were crucial witnesses, turned hostile.

7. 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 06.05.1994 passed in S.B. Criminal Misc. Bail (Suspension) of Sentence No. 240/1994.

8. 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.

9. Learned Public Prosecutor opposes the same.

10. This Court, after taking into consideration the facts submitted by learned counsel for the parties, finds that there are serious lacunae in the prosecution case and particularly with aspect to non-examination of the doctor regarding the postmortem report and the injury report. The Investigating Officer himself has not been examined and crucial witnesses PW-3 Gyanchand and PW-4 Nanda have turned hostile. Keeping into consideration the aforesaid submissions, the sentence awarded to the present appellant is substituted with the period of sentence already undergone by him.

11. This Court is conscious of the judgments rendered in, Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648 and Haripada Das v. 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 e