VINAY&ORS.versusSTATE OF KARNATAKA&ANR.

                        [2015] 5 S.C.R. 424


A                          VINAY&ORS.

                                 v.
                 STATE OF KARNATAKA&ANR.
B                (CriminalAppeal No. 644 of2015)

                          APRIL 16, 2015

            [T. S. THAKUR AND R. BANUMATHI, JJ.]
c         Penal Code, 1860 - ss. 326 and 427 rlw. s. 34 -
  Dispute between two brothers- Five injured eye-witnesses-
  Injuries also sustained by accused party - Conviction u/ss.
  307 and 427 rlw. s.34 by trial court sentencing the accused
D for 3 years and 6 months RI respectively - High Court
  modified the conviction uls. 307 to one u/s. 326 while
  upholding conviction uls. 427 - The sentence was reduced
  from 3 years to 3 months and from 6 months to 3 months -
  On appeal, held: In view of the consistent version of injured
E eye-witnesses, supported by medical evidence, conviction
  upheld - However, in view of the relationship between the
  parties, nature of injuries, counter a/legations by both the
  parties and in view of the fact that 13 years have passed since
  the incident, sentence of 3 months is reduced to the period
F already undergone - In addition to the fine imposed by High
  Court, Rs. 25,0001- imposed as fine with direction to pay the
  amount to the victims as compensation u/s. 357(1) Cr.P.C. -
  Code of Criminal Procedure, 1973- s. 357(1).

G         Partly allowing the appeal, the Court

          HELD: 1. Complainant and his associates have
    consistently deposed about the incident and the attack
    on them by the appellants with sickles and the injuries
H
                                424
           VINAY v. STATE OF KARNATAKA                  425


sustained by them. The testimony of the injured A
witnesses is also supported by the medical evidence.
As the appellants wielded deadly weapons, namely,
sickles and talwars and that PWs 1, 3 , 4 and 5 have
sustained grievous injuries, the High court rightly
convicted the appellants under Section 326 IPC r/w B
Section 34 IPC and under Section 427 IPC r/w Section
34 IPC. [Para 8] [430-A-E]

       2.1 There was animosity between two factions
which led to attack and injuries on both sides. Nature of C
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
                                                           0
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 E
reducing the sentence and imposing fine. [Para 9] [431-
B-Dl
      2.2    Sub-section (1) of Section 357 provides
power to award compensation to victims of the offence F
out of the sentence of fine imposed on accused. 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 G
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
                                                         H
426        SUPREME COURT REPORTS                (2015] 5 S.C.R.


A     Rs.25,000/- so as to compensate the injured witnesses
      in addition to the compensation awarded by the High
      Court. [Para 1O] [431-Ei 433-E-G]

        Harl Singh v. SukhbirSingh & Ors. (1988) 4 SCC 551:
B        'I 988 (2) Suppl. SCR 571; Ankush Shivaji Gaikwad
        vs. State of Maharashtra (2013) 6 SCC 770: 2013 (8)
        SCR 863 - relied on.

             2.3 Out of the fine amount to be deposited by the
c     appellants-accused, the injured witnesses PWs 1, 3, 4
      and 5 who sustained grievous injuries shall be paid
      compensation of Rs.17,500/- each and PW 2, who
      suffered simple injuries shall be paid compensation of
      Rs. 5,000/-. [Para 11] [434-8-C]
D
                       Case Law Reference

      1988 (2) Suppl. SCR 571          relied on.    Para 10

E 2013 (8) SCR 863                     relied on.    Para 10

            CRIMINAL APPELLATE JURISDICTION : Criminal
      Appeal No. 644 of 2015

        From the Judgment and Order dated 30.11.2011 of the
F High Court of Karnataka Circuit Bench at Dharwad in Criminal
  Appeal No. 515 of2010

             R. S. Hegde, Shanti Prasad, Rajeev Singh for the
      Appellants.
G
            V. N. Raghupathy, for the Respondents.

            The Judgment of the Court was delivered by

            R. BANUMATHI, J. 1. Leave granted.
H
             VINAY v. STATE OF KARNATAKA                           427
                   [R. BANUMATHI, J.]

        2. This appeal arises out of the judgment dated A
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 im!)risonment from three years B
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 C
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
                                                                    0
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            E
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               F
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              G
themselves rescued and were admitted in the Government
Hospital, Sirsi. Based on the statement of PW-1, on the same
day, F.l.R. was registered in Crime No. 146/2001 with the Sirsi
Rural Police Station for the offences punishable under Sections     H
428       SUPREME COURT REPORTS                 [2015] 5 S.C.R.


A 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 1to3) and drew the spot panchnama, arrested
  the accused-appellants and seized the blood stained clothes
B 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
C 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
0
  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
E 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
F 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
G 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
H
            VINAY v. STATE OF KARNATAKA                     429
                  [R. BANUMATHI, J.]

High Court partly allowed the appeal of the appellants and A
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 B
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, 0001- on each of the appellants to be
paid as compensation to the injured. Being aggrieved, this C
appeal has been filed by the appellants challenging their
conviction and senten~e of imprisonment.

       6. Learned counsel for the appellants submitted that
the complainant accompanied by his associates (PWs 2 to 5)
                                                              0
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 E
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 F
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 G
date of occurrence, the complainant went to bring hisAlmirah
kept in his parental house at Padageri and was conversing
with his mother (PW-8). Atthattime, accused-appellants came
armed with sickles and ta/wars (swords) and attacked PW-1
on his head and right hand. When PWs 2 to 5 tried to rescue H
430       SUPREME COURT REPORTS                    [2015) 5 S.C.R.


A PW-1, they were also attacked by the appellants. Complainant
    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
    witness.es is also supported by the medical evidence. Dr.
B 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.
C . 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 Kira·n R.
    Bhat, Ghandranath R. Bhat, Madhukar L. Hegde (PWs 3 to
D 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 High Court rightly convicted
E  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
F 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
G of occurrence, PW-1 along with his associates went to his
  parental house to remove the almirah and his belongings for
  which appellants objected which resulted in quarrel between
  the parties. The appellants-accused also suffered contusion
H and abrasion. Dr. Rama Hegde (PW-13) noted simple injuries
            VINAY v. STATE OF KARNATAKA                       431
                 [R. BANUMATHI, J.]

on the person of the accused-appellants and issued wound · A
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 B
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 C
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 o
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 E
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. SukhbirSingh, ((1988) 4 SCC 551        F
  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      G
  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       H
432       SUPREME COURT REPORTS                    [2015) 5 S.C.R.


A      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
B     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
c     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
D     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)

E
      32. In Sarwan Singh v. State of Punjab, (1978) 4 SCC
      111, Ba/raj 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
F
      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
G     great extent must depend upon the relevant factors apart
      from such fine or compensation being just and
      reasonable. In Dilip S. Dahanukarcase this Court even
      favoured an inquiry albeit summary in nature to
      determine the paying capacity of the offender. The Court
H     said: (SCC p.545, para 38)
            VINAY v. STATE OF KARNATAKA                         433
                  [R. BANUMATHI, J.]

  '38. The purpose of imposition of fine and/or grant of         A
  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 C\nd not arbitrary. Before issuing a        B
  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
                                                                 c
  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            D
  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."
                                                              E
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 F
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.
                                                                G
       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
                                                                 H
434          SUPREME COURT REPORTS              [2015] 5 S.C.R.


A 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.
B 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
C Rs. 5,000/-. With the above modification, the appeal is allowed
  in part.

      Kalpana K. Tripathy                      Appeal partly allowed.



D