The court considered the lack of medical evidence and shaky eyewitness testimony in allowing the appellant's prayer to substitute the sentence awarded with the period already undergone.

JUDGMENT

Pushpendra Singh Bhati, J. - 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. This criminal appeal under Section 374 Cr.P.C. has been preferred claiming the following reliefs:

"It is therefore most humbly and respectfully prayed that the appeal may be allowed and the judgment and order dated 19.08.1994 passed by the learned Sessions Judge, Jaisalmer in Sessions Case No. 5/94 may kindly be set aside and the appellant may be acquitted for the charges under Sec. 376/511 I.P.C."

3. The matter pertains to an incident which occurred in the year 1993 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 19.08.1994, passed by the learned Sessions Judge, Jaisalmer in Sessions Case 5/94 whereby the appellant was convicted for the offences under Sections 376 read with Section 511 IPC and sentenced to undergo 05 years R.I. and a fine of Rs. 1,000/- in default of payment of which he was ordered to further undergo 15 months S.I.

5. Counsel for the appellant submits that the incident happened on 11.09.1993 when the prosecutrix was going with her daughter to her fields and there an attempt to rape with her was made by present appellant. Counsel for the appellant further submits that her husband-Fusa Ram and neighbour Pappu Ram came there whereupon the appellant ran away.

6. Counsel for the appellant submits that there is no brutality or any kind of medical evidence which could corroborate the attempt to commit rape. Counsel for the appellant further submits that the statement of husband and neighbour are not that of eyewitnesses, although, they came at the place but on seeing them the accused ran away.

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 07.11.1994 passed in S.B. Criminal Misc. Bail (Suspension of Sentence) No. 413/1994.

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 on conjoint consideration of the incident being of 11.09.1993, the medical evidence not indicating any brutality, so called attempt having not been proved by any independent witness and also the husband and neighbour's evidence being shaky, is inclined to allow prayer of the appellant to substitute the sentence awarded with the sentence already undergone.

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 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..."

12. In light of the limited praye