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 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
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. 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, 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 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 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.
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. 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)
"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, 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
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)
New Delhi;
April 16, 2015
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 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
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. 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, 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 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 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.
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. 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)
"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, 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
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)
New Delhi;
April 16, 2015
