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CASE NO.: Appeal (crl.)  766 of 2007

PETITIONER: MANJAPPA

RESPONDENT: STATE OF KARNATAKA

DATE OF JUDGMENT: 18/05/2007

BENCH: C.K. THAKKER & ALTAMAS KABIR

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 766   OF 2007 ARISING OUT OF SPECIAL LEAVE PETITION (CRL) NO. 6142 OF 2006

C.K. THAKKER, J.

1.      Leave granted. 2.      This appeal is directed against judgment and order  passed by the High Court of Karantaka at Bangalore on  July 20, 2006 in Criminal Revision Petition No. 1188 of  2003. 3.              Short facts giving rise to the present appeal are  that on or about July 19, 1997 at about 3.15 p.m.,  appellant-accused had voluntarily caused simple hurt to  complainant-Manju Ramayya Shetty in front of Olaga  Mantapa of Murdeshwar. The appellant also said to have  assaulted the complainant with a stone resulting in  grievous injuries to the complainant.  Moreover, the  appellant-accused intentionally insulted the complainant  by abusing him in filthy language thereby giving him  provocation knowing full well that such provocation  would make the complainant to break public peace or to  commit other offences.  A complaint was filed on July 20,  1997 and after usual investigation, charge was framed  against the accused on November 13, 1998 by the  Judicial Magistrate, First Class, Bhatkal for offences  punishable under Sections 323, 325 and 504, Indian  Penal Code (IPC) in Criminal Case No. 2488 of 1997.  The  accused pleaded ’not guilty’ to the charge.   4.              The prosecution in support of the case,  examined eight witnesses including injured complainant  Manju Ramayya Shetty.  The trial Court, after  appreciating the prosecution evidence, by its judgment,  dated March 08, 1999 held that it was proved by the  prosecution that the accused caused simple as well as  grievous hurt to the complainant, and thereby, he had  committed offences punishable under Sections 323 and  325, IPC.  Regarding the third charge, however, that the  accused committed an offence punishable under Section  504, IPC, according to the Court, the prosecution was not  able to establish it and the accused was ordered to be  acquitted.  So far as sentence is concerned, the trial  Court awarded Simple Imprisonment for three months  and a fine of Rs. 500/- (Rupees five hundred only), in  default to undergo Simple Imprisonment for fifteen days  for the offence punishable under Section 323, IPC.  He  was also ordered Simple Imprisonment for one year and

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fine of Rs. 3000/- (Rupees three thousand only), in  default to undergo Simple Imprisonment for three  months for the offence punishable under Section 325,  IPC.  The Court also ordered that out of the fine amount  so received, the injured-complainant will be paid  compensation of Rs. 2000/- (Rupees two thousand only)  under Section 357(1)(b) of the Code of Criminal  Procedure, 1973 (hereinafter referred to as "the Code").   5.              Being aggrieved by the order of conviction and  sentence passed by the trial Court, the appellant  preferred an appeal in the Court of Sessions Judge, Fast  Track Court, Karwar being Criminal Appeal No. 19 of  1999.  The learned Sessions Judge, after considering the  evidence and hearing the arguments, acquitted the  appellant for the offence punishable under Section 323,  IPC and set aside the order of conviction and sentence.   He, however, confirmed the order of conviction of the  accused for the offence punishable under Section 325,  IPC.  The Appellate Court, however, was of the view that  it was a fit case to reduce sentence of Simple  Imprisonment from one year to six months.  The  appellate Court also directed the accused to pay  compensation of Rs. 3000/- (Rupees three thousand  only) to the complainant who had sustained grievous  injuries, independently of what the trial Court awarded.   The sentence of fine and compensation passed by the  trial Court was confirmed. 6.              The appellant challenged even that order  passed by the Appellate Court by filing Revision Petition  in the High Court. The High Court confirmed the order of  conviction.  The High Court also partly allowed the  Revision by reducing sentence and ordering the appellant  to undergo Simple Imprisonment for 1= months and to  pay fine of Rs. 1000/- (Rupees one thousand only) in  addition to what was ordered by the Courts below.  The  appellant has approached this Court against the said  order passed by the High Court. 7.              On November 23, 2006, the matter was placed  before a Chamber Judge since exemption from  surrendering was sought.  The prayer was accepted by  the learned Chamber Judge in view of the fact that the  sentence imposed was 1= months’ Simple Imprisonment  and it was averred that the accused was in custody for  fifteen days. Thereafter notice was issued and the  appellant was ordered to be released on bail. 8.              We have heard the learned counsel for the  parties. 9.              The learned counsel for the appellant  submitted that though all the courts had recorded a  concurrent finding that the appellant has committed an  offence punishable under Section 325, IPC and had  caused grievous injury to the complainant, they failed to  consider the provisions of Section 360 of the Code which  provides for grant of probation to an offender in certain  cases.  The said section enables the Court to release a  person who has been convicted of certain offences by  releasing him on probation of good conduct and  behaviour.  Section 361 requires the Court to record  special reasons where it does not grant benefit of Section  360 of the Code.   10.             The said Section reads thus; 361. Special reasons to be recorded in certain  cases.\027Where in any case the Court could have  dealt with,-- (a)     an accused person under Section 360 or under

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the provisions of the Probation of Offenders  Act, 1958 (20 of 1958), or (b)     a youthful offender under the Children Act,  1960 (60 of 1960), or any other law for the  time being in force for the treatment, training  or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment  the special reasons for not having done so.

11.             The counsel referred to a decision of this Court  in Om Prakash & Ors. v. State of Haryana, (2001) 10 SCC  477 and submitted that all the orders deserve to be  quashed and set aside by granting benefit of probation to  the appellant who, though more than 21 years of age, the  offence in question was his first offence. 12.             The learned counsel for the State, on the other  hand, supported the order of the courts below.  He  submitted that all the three courts have concurrently  found that the appellant had caused serious injury to the  complainant and had ordered conviction and imposed  sentence, which calls for no interference. He also  submitted that the complainant had suffered seven  injuries and had lost two teeth.  It was submitted that  when the High Court reduced sentence from six months  to 1= months, no further reduction in the sentence may  be made by this Court in exercise of discretionary power  under Article 136 of the Constitution. 13.             Having heard learned counsel for the parties,  in our opinion, the submission of the learned counsel for  the appellant that the case is covered by Om Prakash is  not well-founded.  In Om Prakash, the case of the  prosecution was that the entire incident was an outcome  of an accident wherein the wife of the complainant was  hit by a tractor driven by one of the accused.  It was,  therefore, clear that in Om Prakash, one of the important  elements of a crime ’mens rea’ was absent.  In the case  on hand, the appellant-accused caused grievous injury to  the complainant intentionally and hence Om Prakash has  no application. 14.             At the same time, however, the fact remains  that the High Court has reduced substantive sentence to  a month and a half.  It is also not in dispute that the  appellant has undergone and has remained in custody  for about fifteen days.  Moreover, as on today, he is on  bail.  Hence, even though we are of the view that in the  facts and circumstances of the case, provisions of Section  360 read with Section 361 of the Code are not attracted  and Om Prakash does not help the appellant, it would not  be appropriate now to direct the appellant to surrender  and to suffer the remaining sentence for about a month.   The incident is of 1997 and about 10 years have passed.   15.             Keeping in view all the facts and  circumstances, in our opinion, ends of justice would be  met, if we order that the substantive sentence which the  appellant has already undergone is held sufficient.  We  are also of the view that it would be appropriate if over  and above the amount which the appellant herein has  paid towards fine and also towards compensation to the  injured victim, the appellant is ordered to pay an  additional amount of Rs. 10,000/- (Rupees ten thousand  only), to the complainant by way of compensation. 16.             For the foregoing reasons, the appeal is partly  allowed by holding that the sentence already undergone  by the appellant is held sufficient and adequate in the  facts and circumstances of the case.  It is, however,

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ordered that the appellant will pay an additional amount  of Rs. 10,000/- (Rupees ten thousand only) to the injured  complainant within a period of one month from today  over and above the amount of fine and compensation  ordered to be paid by the courts below.  17.             Ordered accordingly.