Dedha & Ors v. State of Rajasthan, S.B. Criminal Appeal No

Order This criminal appeal was preferred by the accused-appellants Ram Sahai and Gopal. During its pendency, the accused-appellant- Ram Sahai has expired as is reflected from the order of this Court dated 22.07.2024. Therefore, the appeal stands abated qua him. The remaining accused-Gopal shall be reckoned as appellant hereinafter. This criminal appeal is directed against the judgment dated

21.12.1989 passed by learned Additional Sessions Judge, Jaipur District, Jaipur Camp Shahpura (for short, “learned trial Court”) in Criminal Case No.29/1989 whereby, the appellant has been convicted and sentenced as under: “Under Section 323 IPC- 3 months rigorous imprisonment Under Section 304 Part II IPC- 5 years rigorous imprisonment. [2025:RJ-JP:33681] (2 of 7) [CRLA-10/1990] Both the sentences to run concurrently.” The relevant facts in brief are that an FIR No.265/1988 dated

27.10.1988 (EX.P31) came to be registered at Police Station Shahpura, District Jaipur on the report lodged by Kanhaiya Lal wherein, it was stated that they are five brothers namely; he himself, Ram Sahai, Shiv Ram, Sheo Pal and Hanuman having a common ‘Guwari’ which was occupied by Ram Sahai and Hanuman; and Sheo Pal as well as Shiv Ram were residing separately. It was alleged that Ram Sahai tried to encroach upon the land falling in share of Sheo Pal whereupon, a meeting took place in the village in presence of the Sarpanch and other Panch wherein, no settlement could take place. It was further alleged that thereafter, Sheo Pal was beaten by Ram Sahai, Gopal and Mahaveer resulting into injury on his head. It is relevant to mention here that Sheo Pal accompanied the complainant to the police station who was examined by the Station House Officer, who found a blood stained injury with complaint of pain in the body. During the course of treatment, Sheo Pal expired on

28.10.1988. After investigation, charge-sheet under Sections 302/342/323/34 IPC was filed against the appellant and co-accused persons namely, Ram Sahai and Ganpati. Charge against the appellant was framed under Section 323/34 and Section 302; in alternative, under Section 302/34 IPC. He pleaded not guilty and demanded trial. After trial, he was convicted and sentenced as stated hereinabove. Eschewing the merits of the case, learned counsel for the appellant submits that the instant case is about 37 years old and he has been facing trauma of pendency of this criminal appeal for [2025:RJ-JP:33681] (3 of 7) [CRLA-10/1990] such long period. He submits that he has already remained in custody for a period of over 7 months and he would feel contented if, while maintaining the conviction, the sentence awarded to him is reduced to the period already undergone. He, in support of his submissions, relied upon following judgments: 1) Dedha & Ors. vs. State of Rajasthan, S.B. Criminal Appeal No.269/1988 dated 20.02.2024. 2) Heera vs. State of Rajasthan, S.B. Criminal Appeal No.288/1989 dated 28.03.2025. Per contra, learned Public Prosecutor opposed the prayer. Heard. Considered. As per the injury report of the deceased Sheo Pal (Ex. P6), he had received one tangible injury in the shape of swelling on right frontal parietal area of scalp which, as per the post mortem report (Ex. P37), led to fracture of the skull bones and caused death. Further, as per the FIR, the injured Sheo Pal had accompanied the complainant to the police station for registration of the FIR and on examination by the SHO, was found to have only one injury on his head. Further, as per the prosecution case, this injury is attributed to two persons namely, Ram Sahai who is alleged to have hit the deceased with a hammer and the appellant-Gopal, who is alleged to have hit the deceased with a ‘musal’-a blunt object, at the same spot. While passing the impugned judgment, the learned trial Court has held that the parties are close relatives, the incident occurred at the spur of moment without any premeditation on the part of the accused party on the grave and sudden provocation by the deceased himself who, while going to his home from the meeting place [2025:RJ-JP:33681] (4 of 7) [CRLA-10/1990] through the property in possession of the Ram Sahai, made some comments upon him and in view thereof, while acquitting the appellant from the charge under Section 302 and 302/34 IPC, the conviction was recorded under Section 302 Part II IPC. Indisputably, the incident is about 37 years old and the appellant has been facing trauma of this criminal case for that long period. As per the arrest memo (EX. P32), the appellant was aged about 22 years at that time and is now about 60 years. This Court has, in the case of Heera vs. State of Rajasthan: S.B. Criminal Appeal No.288/1989 involving identical controversy wherein, the accused-appellant was convicted under Section 304 Part II IPC and sentenced to five years RI alongwith fine, taking into consideration the facts of the case, i.e., the incident being 40 years old, custody period being three months and ten days, absence of any criminal antecedents and the precedential law laid down by the Hon’ble Supreme Court of India in the case of Alister Anthony Pareira vs. State of Maharashtra-(2012) 2 SCC 648, Panchashila Dada Meeshram vs. State of Maharashtra: (2009) 17 SCC 81, reduced the sentence to the period already undergone. Their Lordships have held in the cases of, Alister Anthony Pareira Vs. State of Maharashtra MANU/SC/0015/2012: (2012) 2 SCC 648 and Haripada Das Vs. State of W.B. MANU/SC/1627/1998: (1998) 9 SCC 678 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 [2025:RJ-JP:33681] (5 of 7) [CRLA-10/1990] 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..." Their Lordships have held in case of Panchashila Dada Messhram versus State of Maharashtra: (2009) 17 SCC 81, as under:- “8. However, as far as the question of sentence is concerned, this Court finds that at the time of incident, the appellant was in advanced stage of her pregnancy and had given birth to a girl child which had expired soon after the birth. The evidence adduced by the prosecution indicates that the husband of the appellant was coming near the bathroom with a cane so as to prevent the deceased from coming out of the bathroom. Such an act is not attributed to the appellant at all. As on today, the appellant is of more than 67 years of age. [2025:RJ-JP:33681] (6 of 7) [CRLA-10/1990] The record further indicates that the appellant has also a major daughter, who was aged 10 years at the time of the incident and a son. On the facts and in the circumstances of the case, this Court is of the opinion that interest of justice would be served if conviction of the appellant under Section 304, Part II, read with Section 34 of the Indian Penal Code is maintained and the sentence is reduced to the period already undergone.

9. For the foregoing reasons, the appeal partly succeeds. The conviction of the appellant recorded by the High Court under Section 304, Part II read with Section 34 of the Indian Penal Code is confirmed. However, the sentence is reduced to the period already undergone by her. The appeal is allowed to the extent indicated hereinabove.” A coordinate Bench of this Court has, in the case of Gurudayal Singh vs. State of Rajasthan: S.B. Criminal Appeal No.83/1989 involving identical controversy wherein, the appellant was convicted under Section 304 Part II IPC, vide order dated 31.08.2023, reduced the substantive sentence to the period already undergone while maintaining his conviction. This Court, in another case of Dedha (supra) wherein, the appellants were convicted, inter alia, under Section 304 Part 1 IPC read with Section 149 IPC and sentenced for seven years RI with fine, reduced the sentence to the period already undergone in the facts and circumstances of the case. In the instant case also, the appellant has already served the sentence of about 7 months, the incident is about 37 years old, in [2025:RJ-JP:33681] (7 of 7) [CRLA-10/1990] view of the other mitigating circumstances as referred to hereinabove and in the backdrop of aforesaid precedential law, this Court finds that ends of the justice would meet if, while maintaining the conviction, the sentence awarded to him is reduced to the period already undergone. Resultantly, this appeal is partly allowed in terms that while maintaining the conviction recorded by the learned trial Court vide its judgment dated 21.12.1989, the sentence awarded to him is reduced to the period already undergone. Since, the appellant is on bail, his bail bonds stand discharged accordingly. The appeal is partly allowed in the aforesaid terms. In view of the provisions of Section 437-A CrPC (Section 481 Bharatiya Nagarik Suraksha Sanhita, 2023), the appellant namely Gopal S/o Ram Sahai is directed to furnish a personal bond in the sum of Rs.25,000/- and a surety in the like amount within four weeks before the Registrar (Judl.) of this Court which shall be effective for a period of six months with the stipulation that in that event of Special Leave Petition being filed against the judgement or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. Pending application(s), if any, also stands disposed of accordingly. DIKSHA /9 (MAHENDAR KUMAR GOYAL),J