Point of Law : Section 433 and 434 of the Cr.P.C. enjoins a duty upon the State Government as well as Central Government to commute the sentences as mentioned in the said section.

Headnote:
Indian Penal Code, 1860 - Sections 302, 376, r/w 511 - Criminal Procedure Code, 1973 - Section 161, 313, 433 and 434 - Offence of Rape and Murder - Appeal against conviction - Power to commute sentence - Complainant alleging that morning when six years old child-girl who had accompanied with appellant was found dead in his house - Prosecution was moved into motion by father of deceased alleging that she had been raped and then murdered - Investigating Officer conducted investigation and being satisfied that case was made out, submitted charge-sheet against accused-appellant, under Sections 302, 376, read with section 511 IPC.
Finding of the Court :
State of U.P. even after 14 years of incarceration does not even send the matter to the Magistrate for reevaluation the cases for remission as per mandate of Sections 432 and 433 of Cr.P.C. and as held by Apex Court in catena of decisions even if appeals are pending in the High Court. The accused in present case is in jail since 2000 - Court do not see that why the accused is not entitled to remission. His case should have been considered but has not been considered. Remission/commutation of sentence under Sections 433 and 434 of the Cr.P.C. is in the realm of power vested in the Government. The factual scenario in the present case would show that had the Government thought of taking up the case of the accused as per jail manual, it would have been found that the case of the appellant was not so grave that it could not have been considered for remission/commutation - State may consider for his remission, hence as a theory of reformation would apply to this case as it may be that he was young boy and due to bad luck and fear he may have committed this offence - He has no criminal antecedents attributed to him.
Result : Appeal dismissed

JUDGMENT :

Kaushal Jayendra Thaker, J.

1. This appeal has been preferred by the appellant-Kunwar Pal against the judgment and order dated 04.11.2009, passed by Additional Sessions Judge, Court No. 13 Bareilly, in Session Trial No. 946 of 2007 (State vs. Kunwar Pal) arising out of Case Crime No. 26 of 2007, under Sections 302, 376, read with section 511 Indian Penal Code (I.P.C.), Police Station Awala, District Bareilly, whereby the accused was convicted and awarded sentence under Section 302 IPC for life imprisonment and fine of Rs.15,000/-in default accused was directed to undergo further imprisonment for one year. Accused was acquitted of charges under sections 376 read with section 511 of IPC.

2. The facts giving rise to this appeal are that complainant Omkar Jatav submitted written-report at Police Station Awala, District Bareilly, stating therein that on 18.01.2008 at 11:30 in the morning when six years old child-girl who had accompanied with appellant was found dead in his house. The prosecution was moved into motion by father of the deceased alleging that she had been raped and then murdered. The Investigating Officer conducted the investigation and being satisfied that case was made out, submitted charge-sheet against the accused-appellant, under Sections 302, 376, read with section 511 IPC.

3. As accused was facing charges under Sections 302, 376, read with section 511 IPC, the case was committed to the court of Sessions. Learned trial court has framed charges on 29.03.2008 against appellant under Sections 302, 376, read with section 511 IPC. Charges were read over to the accused, who denied the charges and claimed to be tried.

4. To bring home the charges, following witnesses were examined by the prosecution:

1	Omkar	PW1
2.	Lilawati	PW2
3.	Babu Singh	PW3
4.	Badami	PW4
5.	Dr. A. K. Gautam	PW5
6.	V.K. Kasana	PW6
7.	Gajendra Pal Singh	PW7
8.	Ram Sharan Verma	PW8

All of them have given statements under section 161 Cr.P.C. and have opined against the accused.

5. The ocular version was sought to be corroborated by production of documentary evidences:

6. Accused-appellant was examined under Section 313 Cr.P.C. and evidence against him led by prosecution against him were put to him. Accused stated that false evidence has been led against him. Accused did not examine any witness in his defence.

7. We have heard Ms. Kanchan Chaudhary, who has been appointed by High Court Legal Services Committee, as Amicus Curiae and learned AGA for the State and perused the record.

8. Learned counsel for the appellant has vehemently submitted that there is contradiction in the ocular version of Omkar and Lilawati i.e. father and mother of the deceased and also about the timing as mentioned in the postmortem report as Ex. 4. She has further submitted that accused is totally innocent and could not have been convicted on fragile evidence of eye-witnesses which is full of contradiction. It has been further submitted that dead body might have been planted by somebody else and the accused is roped in.

1.	F.I.R.	Ex. Ka2
2.	Written Report	Ex. Ka1
3.	P.M. Report	Ex. Ka4
4.	Panchayatnama	Ex. Ka7
5.	Charge Sheet Mool	Ex. Ka6
6.	Site Plan with Index	Ex. Ka5

9. Per contra, learned AGA has taken us through the evidence on record and has contended that this is not a case where the accused can be given any benefit of doubt as it was his own house where the dead body was found. The father of the victim categorically in ocular version supported the F.I.R. stating that his daughter had accompanied the accused and she did not return back at home, they went to the house of the accused who did not open the door and when the door was opened he ran away from the scene of offence.

10. At the outset only th