The court considered the principles of deterrence and correction in sentencing, and the long pendency of the case and the financial and mental hardship suffered by the appellant in reaching its decision.

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. The matter pertains to an incident which occurred in the year 1989 and the present criminal appeal is pending since the year 1993.

3. This criminal appeal under Section 374(2) Cr.P.C. has been preferred against the judgment dated 19.08.1993 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jodhpur in Sessions Case No. 26/92, whereby appellant No. 1-Babu Ram was convicted under Section 304 Part II IPC and was sentenced to undergo seven years rigorous imprisonment, alongwith fine of Rs. 500/-, in default of payment of fine to undergo further two and a half months rigorous imprisonment; fine of Rs. 200/- for the offence under Section 447 IPC, in default, to undergo one month's simple imprisonment and; for the offence under Section 4/25 was sentenced to undergo one year simple imprisonment alongwith a fine of Rs. 250, in default of payment of fine to undergo further one and a half months simple imprisonment. Appellant No. 2 Bhera Ram was convicted for the offences under Sections 324 & 447 IPC, but released while extending the benefit of Section 4 of the Probation of Offenders Act, 1958.

4. Learned Senior Counsel, Mr. Jagmal Singh Choudhary assisted by Mr. Pradeep Choudhary appearing on behalf of the appellants submits the basic allegation against the appellants, being that of a sword wound, are not on the record of the learned Trial Court. And that, the FSL report has not been placed on the record of the learned Trial Court.

5. Learned Senior counsel further submits that the appellant, Babu Ram, has undergone 2 years of custody, and that the appellant no. 2 has expired on 02.10.2013 and that the appeal against him is already abated.

6. Learned Senior Counsel however, makes a limited submission that without making any interference on merits/conviction, the sentence awarded to the present accused-appellants may be substituted with the period of sentence already undergone by them.

7. Learned Public Prosecutor opposes the same.

8. 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..."

9. This Court, taking into consideration that the incident in question occurred in the year 1989, do not think that the accused should be sent to jail; and thus, while maintaining the conviction of the appellant-Babu Ram in the aforementioned offences, this Court reduces the sentences awarded to him therefore, to the sentence already undergone by him. The appellant-Babu Ram is on bail. He need not surrender. His bail bonds stand discharged.

9.1. However, this Court enhances the fine by an additional Rs. 50,000/- payable to the victim, and in case the victim is deceased, the same shall be payable to his heirs, in addition to that