The court may reduce a sentence to the period already undergone considering the lengthy pendency of the case and the age of the appellant.

JUDGMENT :

Mahendar Kumar Goyal, J. - This criminal appeal is filed by the accused-appellant (for brevity, "appellant") against the judgment dated 19.12.1988 passed by learned Special Judge, Dacoiti Affected Area and Additional Sessions Judge, Karoli (for brevity, "learned trial Court") in Sessions Case No.10/1988 whereby, he has been convicted and sentenced as under:

Section 304 part 2 IPC: Seven years' rigorous imprisonment and Rs. 500 fine; in default whereof, three months imprisonment.

2. The relevant facts in brief are that an FIR dated 11.08.1986 (Ex.P-2) came to be registered at Police Station Karoli under Sections 452, 307 and 323 IPC on a written report dated 11.08.1986 (Ex. P1) lodged by Shri Gaya Prasad (PW1)-brother of the deceased Brij Mohan @ Binda. It was stated in the report that the appellant alongwith co-accused persons entered the residential house of his brother Durga Prasad and inflicted lathi blows on the head of Brij Mohan @ Binda resulting into grievous injuries. During the course of investigation, Brij Mohan @ Binda expired whereupon, Section 302 IPC was added. The police after investigation filed charge-sheet against the appellant and co-accused persons for the offence under Sections 302, 453 and 323 IPC. Charge under Section 302 IPC was framed against the appellant and against remaining three co-accused persons, it was framed under Section 302IPC read with Section34 IPC. After trial, while, the co-accused persons were acquitted from the charge for the offence under Section 302/34 IPC, the appellant has been convicted and sentenced as stated hereinabove.

3. Learned counsel for the appellant submits that although, there is only one injury on the head of deceased with blunt weapon which has been found to be fatal and which, as per the FIR and the statement of some of the eye witnesses, is attributed at least to two persons including the appellant; but, without pressing the appeal on its merits, he would pray that while maintaining the conviction, the appellant, who has been facing trauma of this criminal case for last about thirty eight years, is aged about sixty six years and has served the sentence for a period of about six months, the sentence awarded to him be reduced to the period already undergone. He, in support of his submissions, relies upon a Division Bench judgment of this Court in the case of Nagia v. State of Rajasthan: RLW 1990(1) 99.

4. Per contra, learned Public Prosecutor opposed the prayer.

5. Heard. Considered.

6. As per the FIR lodged by brother of the deceased Gaya Prasad (PW1)-an eye witness, four persons including the appellant and co-accused Brahma inflicted lathi blows on the head of the deceased. Similar allegations have been reiterated by other eye witnesses namely Smt. Rumali (PW2)-wife of the deceased and Durga Prasad (PW3)-brother of the deceased. However, as per the post mortem report of the body of deceased (Ex. P14), he has received only one injury on his head with blunt weapon. The incident is dated 10.08.1986 and the appellant is facing trauma of pendency of this criminal appeal for last about thirty eight years. As per the arrest memo dated 26.12.1986 (Ex. P6), the appellant was aged about twenty six years at that time which makes him aged about sixty five years as on date. The appellant has remained in custody pre-conviction for a period of four months and twenty days and post conviction, for a month and seven days; thus, he has remained in custody for a total period of about six months.

7. The Hon'ble Supreme Court of India has, in the cases of Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648 and Haripada Das v. State of W.B. (1998) 9 SCC 678, held 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 circumstanc