VINAY Vs STATE OF KARNATAKA
Bench: T.S. THAKUR,R. BANUMATHI
Case number: Crl.A. No.-000644-000644 / 2015
Diary number: 3360 / 2012
Advocates: RAJEEV SINGH Vs
V. N. RAGHUPATHY
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 644/2015 (Arising out of S.L.P. (Crl.)No. 1550/2012)
VINAY & ORS. .. Appellants
Versus
STATE OF KARNATAKA & ANR. ..Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the judgment dated
30.11.2011 passed by the High Court of Karantaka, Circuit
Bench at Dharwad in Criminal Appeal No.515/2010 modifying
the conviction of the appellants from Section 307 IPC read
with Section 34 IPC to Section 326 IPC read with Section 34
IPC reducing the sentence of imprisonment from three years
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to three months and confirming the conviction under
Section 427 IPC read with Section 34 IPC, thereby reducing
the sentence of imprisonment imposed on each of the
accused from six months to three months further directing
the sentences to run concurrently and imposing a fine of
Rs.10,000/-.
3. The appellants and the complainant-Vishveshwar
Parameshwar Hegde (PW-1) are the real brothers and are
children of Smt. Bharati (PW-8). Due to quarrel with the
appellants, PW-1 voluntarily left the parental house and
started living separately. On 23.12.2001, complainant–
Visheshwar Parameshwar Hegde (PW-1) along with four
persons viz., PW-2 Chandru V. Bhat, PW-3 Kiran R. Bhat, PW-4
Chandranath V. Bhat, and PW-5 Madhukar L. Hegde came in
a Maruti car to his parental house in order to remove the
almirah and his other personal belongings, for which the
appellants objected which resulted in quarrel between the
parties. In the heat of moment, appellant No.1 hit the
complainant with club and when PWs 2 to 5 came to PW-1’s
rescue, they were also indiscriminately attacked by all the 2
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three appellants with chopper and sickles. The appellants
also damaged the car glasses and tyres, in which PW-1
came along with his associates. In the scuffle, the
appellants also received simple injuries. PW-1 and other
injured witnesses somehow got themselves rescued and
were admitted in the Government Hospital, Sirsi. Based on
the statement of PW-1, on the same day, F.I.R. was
registered in Crime No. 146/2001 with the Sirsi Rural Police
Station for the offences punishable under Sections 307, 324,
326,427, and 506 IPC read with Section 34 IPC. PW-14
Investigating Officer had taken up the investigation and went
to the place of occurrence and recovered the weapons of
assault (MOs 1 to 3) and drew the spot panchnama, arrested
the accused-appellants and seized the blood stained clothes
of the appellants. After completion of investigation by PW-
14, charge sheet came to be filed against the appellants for
the aforesaid offences. Case was committed to the Sessions
Court and charges under Sections 307, 427 IPC read with
Section 34 IPC were framed against the accused–appellants.
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To prove their case, prosecution examined 14 witnesses and
exhibited 26 documents and 15 material objects.
4. Upon appreciation of the evidence on record, trial
court arrived at the conclusion that the nature of weapons
and nature of grievous injuries caused to the injured
witnesses (PWs 1 to 5) would show the intention and
knowledge of the appellants–accused to kill the
complainant and his associates and by its judgment dated
29.4.2010 convicted the appellants for the offences
punishable under Sections 307 and 427 IPC read with
Section 34 IPC. Each of the appellants were sentenced to
undergo rigorous imprisonment for three years with a fine of
Rs.4,000/- with default clause for offence under Section 307
IPC read with Section 34 IPC. For the conviction under
Section 427 IPC read with Section 34 IPC, appellants were
sentenced to undergo rigorous imprisonment for six months
with fine of Rs.5,000/- each with default clause.
5. Appellants being aggrieved by their conviction and
sentence, filed appeal before the High Court of Karnataka,
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Circuit Bench at Dharwad. State being aggrieved by the
inadequate sentence awarded to the appellants under
Section 307 IPC, preferred cross appeal for enhancement of
the sentence. By the common judgment dated 30.11.2011,
the High Court partly allowed the appeal of the appellants
and modified the conviction of the appellants from Section
307 IPC read with Section 34 IPC to Section 326 IPC read
with Section 34 IPC and accordingly reduced the sentence of
imprisonment to three months and dismissed the appeal of
the State. High Court confirmed the conviction of the
appellants under Section 427 IPC read with Section 34 IPC
and reduced the sentence of imprisonment to three
months. In addition, High Court also imposed a fine of
Rs.10,000/- on each of the appellants to be paid as
compensation to the injured. Being aggrieved, this appeal
has been filed by the appellants challenging their conviction
and sentence of imprisonment.
6. Learned counsel for the appellants submitted that
the complainant accompanied by his associates (PWs 2 to 5)
armed with weapons trespassed into the house of the 5
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appellants in breach of subsisting injunction order passed
against them and the appellants acted in their right of self-
defence in protection of their property which aspect was not
properly appreciated and the courts below erred in
convicting the appellants under Sections 326 and 427 IPC
read with Section 34 IPC.
7. We have heard the learned counsel for the
respondent-State who supported the judgment of the High
Court.
8. Admittedly, there is long standing dispute between
the real brothers. The presence of the parties at the place of
occurrence is admitted by both the parties. Admittedly, on
the date of occurrence, the complainant went to bring his
Almirah kept in his parental house at Padageri and was
conversing with his mother (PW-8). At that time, accused–
appellants came armed with sickles and talwars (swords)
and attacked PW-1 on his head and right hand. When PWs 2
to 5 tried to rescue PW-1, they were also attacked by the
appellants. Complaint and his associates have consistently
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deposed about the incident and the attack on them by the
appellants with sickles and the injuries sustained by them.
The testimony of the injured witnesses is also supported by
the medical evidence. Dr. Rama Hegde (PW-13) attached to
Pandit Government Hospital, Sirsi where complainant was
admitted and examined has stated that Kiran R. Bhat (PW-3),
Chandranath V. Bhat (PW-4), Madhukar L. Hegde (PW-5), and
Vishveshwar P. Hegde (PW-1) had suffered grievous injuries
and that same could be caused by sharp and blunt objects
and to that effect he has issued wound certificates. The
wound certificates show that complainant Vishveshwar P.
Hegde (PW-1) and Kiran R. Bhat, Chandranath R. Bhat,
Madhukar L. Hegde (PWs 3 to 5) have sustained one
grievous injury each and other injuries are simple in nature.
Chandru V. Bhat (PW-2) has sustained simple injuries. As the
appellants wielded deadly weapons, namely, sickles and
talwars and that PWs 1, 3 , 4 and 5 have sustained grievous
injuries, the courts below rightly convicted the appellants
under Section 326 IPC read with Section 34 IPC and under
Section 427 IPC read with Section 34 IPC.
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9. So far as the contention regarding quantum of
sentence, learned counsel for the appellants submitted that
the appellants and the complainant party are the real
brothers and that in the sudden quarrel and in the heat of
passion, both parties attacked each other and that the
accused parties also sustained injuries and therefore prayed
for reduction of sentence, which in our view, merits
consideration. On the date of occurrence, PW-1 along with
his associates went to his parental house and injured
witnesses were armed with weapons to the parental house
to remove the Almirah and his belongings. The appellants-
accused also suffered contusion and abrasion. Dr. Rama
Hegde (PW-13) noted simple injuries on the person of the
accused-appellants and issued wound certificates Ext.P22 to
P24. In his cross-examination PW-13 also opined that
injuries on the person of the accused could be caused by
sharp and blunt objects. The complainant party went to the
house of the accused for removal of Almirah and certain
personal belongings. There was animosity between two
factions which led to attack and injuries on both sides.
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Nature of injuries on the person of complainant and the
complainant party and the accused party suggested that
both parties attacked each other and the appellants seem to
have exceeded the right of private defence, if any. After the
occurrence, more than thirteen years have passed, the
complainant party and the accused are entangled in
litigation. Considering the totality of facts and
circumstances of the case and the relationship between the
parties, interest of justice would be met by reducing the
sentence and imposing fine.
10. Sub-section (1) of Section 357 provides power to
award compensation to victims of the offence out of the
sentence of fine imposed on accused. After referring to Hari
Singh v. Sukhbir Singh & Ors., (1988) 4 SCC 551 and other
decisions in Ankush Shivaji Gaikwad vs. State of
Maharashtra, (2013) 6 SCC 770, this Court held as under:
“30. In Hari Singh v. Sukhbir Singh, ((1988) 4 SCC 551 this Court lamented the failure of the courts in awarding compensation to the victims in terms of Section 357(1) CrPC. The Court recommended to all courts to exercise the power available under Section 357 Cr PC liberally so as to meet the ends of justice. The Court said: (SCC PP.557-58, para 10)
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“10. …Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. ….It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way. (emphasis supplied)
………….. 32. In Sarwan Singh v. State of Punjab, (1978) 4 SCC 111, Balraj v. State of U.P., (1994) 4 SCC 29, Baldev Sigh v. State of Punjab, (1995) 6 SCC 593, Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd., (2007) 6 SCC 528 this Court held that the power of the courts to award compensation to victims under Section 357 is not ancillary to other sentences but in addition thereto and that imposition of fine and/or grant of compensation to a great extent must depend upon the relevant factors apart from such fine or compensation being just and reasonable. In Dilip S. Dahanukar case this Court even favoured an inquiry albeit summary in nature to determine the paying capacity of the offender. The Court said: (SCC p.545, para 38)
‘38. The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefore in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus,
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must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of the accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way, may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a Judge.”
The amount of compensation is to be determined by the
courts depending upon the facts and circumstances of each
case, nature of the offence and the capacity of the accused
to pay. Considering the facts and circumstances of the
present case and the nature of the offence, sentence of
imprisonment of three months imposed on the appellants is
reduced to the period already undergone by them and also
imposing a fine of Rs.25,000/- so as to compensate the
injured witnesses in addition to the compensation awarded
by the High Court.w
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11. The conviction of the appellants under Section
326 IPC read with Section 34 IPC and Section 427 IPC read
with Section 34 IPC is confirmed. Sentence of
imprisonment of three months imposed on them is reduced
to the period already undergone by each of them.
Additionally, the fine of Rs.25,000/- is imposed on each of
the appellants–accused and in default to undergo sentence
of imprisonment of three months. Out of the fine amount to
be deposited by the appellants–accused, the injured
witnesses PWs 1, 3, 4 and 5 (Vishveshwar P. Hegde, Kiran R.
Bhat, Chandranath V. Bhat and Madhukar L. Hegde) who
sustained grievous injuries shall be paid compensation of
Rs.17,500/- each and PW 2-Chandru V. Bhat who suffered
simple injuries shall be paid compensation of Rs. 5,000/-.
With the above modification, the appeal is allowed in part.
…………………J. (T.S. Thakur)
…………………J. (R. Banumathi)
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New Delhi; April 16, 2015
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