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CASE NO.: Appeal (crl.)  959 of 2006

PETITIONER: Siddarama and Ors.

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 15/09/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Crl.) No. 1939 of 2006)

ARIJIT PASAYAT, J.

       Leave granted.

Appellants call in question legality of the judgment  rendered by a Division Bench of the Karnataka High Court  holding appellant no.1 guilty of the offence punishable under  Section 326 read with Section 149 of the Indian Penal Code,  1860 (in short the ’IPC’). Each of the accused appellants was  sentenced to undergo rigorous imprisonment for 8 years and  to pay a fine of Rs.500/-. The appellants and 9 others  faced  trial for offences punishable under Sections 143, 147, 341,  307 read with Section 149 IPC. The Trial Court convicted  accused numbers 1 to 6 and 8 to 13 and sentenced each to  undergo rigorous imprisonment for one year in respect of  offences punishable under Sections 143, 147 and 341 read  with Section 149 IPC, and in respect of offence punishable  under Section 307 read with Section 149 IPC, each was  sentenced to undergo two years rigorous imprisonment and to  pay a fine of Rs.500/- with default stipulation. It had been  reported to the Trial Court that accused no.7 died during the  pendency of the trial.  The judgment was assailed before the  High Court both by the accused persons and State. While  accused persons questioned conviction and sentence, State on  the other hand prayed for enhancement of sentence. The  appeals were disposed of as aforenoted.    

Background facts in a nutshell are as follows:

T. Kumar (the injured/P.W.7) is a resident of  Annechakanahally. As his female child had been left by his  wife in his father-in-law’s place in Aramballi village of K.R.  Nagar Taluk, he went to his father-in-law’s place on 7.5.1990  to bring the child. On 8.5.1990 he stayed back there and on  9.5.1990 he was returning to his village Annechakanahally  along with his child. His brother-in-law - Puttaswamy (P.W.4)  accompanied him. When they came near Hosa Agrahara  Railway Station, Puttaswamy proceeded further to purchase  the tickets. By the time Kumara came near the signal cabin in  Hosa Agrahara Railway Station, he saw all the accused  standing near the signal cabin. They were armed with  choppers. When they saw Kumara with the child, they  suddenly came and surrounded him and before he boarded

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the train, the accused Nos.1 and 2 gave a blow on the right  hand of Kumara by means of a chopper on account of which,  Kumara sustained an injury and lost one of his fingers. He left  his child, who was snatched by the accused No.11  Ramakrishna. Then all the accused together caught hold of  Kumara and dragged him to a little distance and near the  hedges at a distance of about 50 to 60 feet from the railway  cabin, they began to assault him. His left leg was severely  crushed by the assault and Kumara sustained injuries due to  the assault on his right leg and other parts of the body a1so.  In the meantime, Puttaswamy (P.W.4), who had returned to  the place after purchasing tickets and Niruvanigouda (P.W.3)  and Jayabharathi (P.W.1), who had come in the said train,  which had arrived by that time at the railway station, saw the  incident. When Nirvanegouda (P.W.3) and Puttaswamy (P.W.4)  attempted to go near the accused to rescue Kumara, they were  threatened by the accused. In the meantime, the train had left  the railway station and the accused left the place and ran  away. Kumara was grievously injured. Leaving others to look  after Kumara, Puttaswamy took the child and went to his  village to inform Kumara’s father-in-law - Rajegowda (P.W.5).   Karthikeyan, Railway Station Master (P.W.17), who had by  then come to know of the assault, came to the spot. When  Rajegowda and Annegouda assured him that they would shift  the injured to the hospital and also inform the police, he  returned to the office. In a tempo, the injured was shifted to  Bherya Clinic. Since there was no sufficient facility to treat the  injured, he was shifted to K.R. Nagar hospital. There, they  were advised to take the injured to K.R. Hospital, Mysore and,  therefore, the injured was taken there. Dr. B. Suhasini,  Assistant Surgeon in K.R. Hospital (P.W.18) examined Kumara  at about 12 noon and gave treatment. In the meantime,  Kuchela Shetty who was the S.H.O. (P.W.13) of Saligrama  Police Station had come to the hospital. He could not take the  statement of Kumara, since Kumara was undergoing  emergency treatment. Immediately after the treatment, at  about 4.00 p.m. P.W.13 recorded the statement of Kumara. On  the basis of the same, D.V. Suresh (P.W.16), who was P.S.I. of  Saligrama Police Station (P.W.16) registered a case in Crime  No.14/1990 and forwarded the FIR to the jurisdictional  Magistrate. He went to the spot and conducted spot mahazar  as per Ex.P5. He also took steps to apprehend the accused  who were found absconding. The accused Nos.1 to 4 were  arrested on 19.7.1990 and on the voluntary information  furnished by them, choppers allegedly used by the accused for  assault were recovered. The accused Nos.5 and 6 were  arrested on 28.7.1990 and accused No.7 was arrested on  27.3.1991. Other accused were found absconding. Despite  treatment, Kumara’s left leg could not be saved and it had to  be amputated in view of the grangrene that had set in by that  time.  After completion of the investigation, a charge sheet was  filed against all the accused showing the accused No.11  absconding. Later accused No.11 Ramakrishna was arrested  and a separate case registered against him was also tried  along with S.C.No. 109/1990.  

Accused persons pleaded not guilty.  In order to establish  the accusations, 20 witnesses were examined by the  prosecution.  PWs 1 and 3 are the eye witnesses and PW7 was  the injured.  PWs 2, 5, 9 and 17 went to the place of incidence  immediately after the occurrence.  PW5 was examined to prove  the motive.  PW 18 was the doctor who examined the injured.  The accused persons pleaded innocence and in their  examination in terms of Section 313 of the Code of Criminal  Procedure, 1973 (in short the ’Cr.PC’), false accusations were

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pleaded. Accused no.11 examined himself as DW1 to establish  the plea of alibi.

On considering the evidence of the witnesses and the  injured, the trial Court found accused persons version credible  so far as accused numbers 1, 2, 6 and 9 are concerned but  found the evidence insufficient to fasten guilt of the rest of the  accused persons.  The conviction and sentence as noted above  were accordingly recorded.   

The convicted accused persons filed an appeal (Criminal  Appeal No.888/2000) while the State of Karnataka filed  Criminal Appeal No.12/2001 for enhancement of sentence and  to set aside the acquittal.  By the impugned judgment the High  Court allowed both the appeals in part. While maintaining the  conviction and sentence imposed in respect of the offence  relatable to Section 143, 147 and 341 read with Section 149  IPC and the consequential sentence the conviction in terms of  Section 307 read with Section 149 IPC was altered to Section  326 read with Section 149 IPC and the sentence of 8 years  rigorous imprisonment with a fine of Rs.500/- was thought to  be appropriate.  But the High Court did not interfere with the  acquittal of the accused persons as done by the trial Court.  

The present appeal is filed by accused persons 1, 2, 6  and 9.  Though various points were urged in support of the  appeal, learned counsel for the appellants submitted that the  sentence is highly disproportionate to the nature of the offence  committed. The prosecution version itself is to the effect that  the allegations had foundation on political differences.

Learned counsel for the respondent-State on the other  hand supported the judgment of the High Court and  submitted that this is a case to which Section 307 IPC read  with Section 149 IPC is clearly applicable. More than 5  accused persons were involved and in fact one of the major  players in the whole incident i.e. A-7 had died.  The sentence  according to him is liberal.

Law regulates social interests, arbitrates conflicting  claims and demands.  Undoubtedly, there is a cross cultural  conflict where living law must find answer to the new  challenges and the courts are required to mould the  sentencing system to meet the challenges. The contagion of  lawlessness would undermine social order and lay it in ruins.  Friedman in his "Law in Changing Society" stated that, "State  of criminal law continues to be \026 as it should be \026 a decisive  reflection of social consciousness of society".  Therefore, in  operating the sentencing system, law should adopt the  corrective machinery or the deterrence based on factual  matrix.  By deft modulation sentencing process be stern where  it should be, and tempered with mercy where it warrants to  be. The facts and given circumstances in each case, the  nature of the crime, the manner in which it was planned and  committed, the motive for commission of the crime, the  conduct of the accused, and all other attending circumstances  are relevant facts which would enter into the area of  consideration.   

Undue sympathy to impose inadequate sentence would  do more harm to the justice system to undermine the public  confidence in the efficacy of law and society could not long  endure under such serious threats. It is, therefore, the duty of  every court to award proper sentence having regard to the

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nature of the offence and the manner in which it was executed  or committed etc. This position was illuminatingly stated by  this Court in Sevaka Perumal etc. v. State of Tamil Naidu (AIR  1991 SC 1463).                    

The criminal law adheres in general to the principle of  proportionality in prescribing liability according to the  culpability of each kind of criminal conduct. It ordinarily  allows some significant discretion to the Judge in arriving at a  sentence in each case, presumably to permit sentences that  reflect more subtle considerations of culpability that are raised  by the special facts of each case. Judges in essence affirm that  punishment ought always to fit the crime; yet in practice  sentences are determined largely by other considerations.  Sometimes it is the correctional needs of the perpetrator that  are offered to justify a sentence.  Sometimes the desirability of  keeping him out of circulation, and sometimes even the tragic  results of his crime. Inevitably these considerations cause a  departure from just desert as the basis of punishment and  create cases of apparent injustice that are serious and  widespread.  

       Proportion between crime and punishment is a goal  respected in principle, and in spite of errant notions, it  remains a strong influence in the determination of sentences.  The practice of punishing all serious crimes with equal  severity is now unknown in civilized societies, but such a  radical departure from the principle of proportionality has  disappeared from the law only in recent times. Even now for a  single grave infraction drastic sentences are imposed.  Anything less than a penalty of greatest severity for any  serious crime is thought then to be a measure of toleration  that is unwarranted and unwise. But in fact, quite apart from  those considerations that make punishment unjustifiable  when it is out of proportion to the crime, uniformly  disproportionate punishment has some very undesirable  practical consequences.            

After giving due consideration to the facts and  circumstances of each case, for deciding just and appropriate  sentence to be awarded for an offence, the aggravating and  mitigating factors and circumstances in which a crime has  been committed are to be delicately balanced on the basis of  really relevant circumstances in a dispassionate manner by the  Court.  Such act of balancing is indeed a difficult task.  It has  been very aptly indicated in Dennis Councle MCGDautha v.  State of Callifornia: 402 US 183: 28 L.D. 2d 711 that no  formula of a foolproof nature is possible that would provide a  reasonable criterion in determining a just and appropriate  punishment in the infinite variety of circumstances that may  affect the gravity of the crime.  In the absence of any foolproof  formula which may provide any basis for reasonable criteria to  correctly assess various circumstances germane to the  consideration of gravity of crime, the discretionary judgment in  the facts of each case, is the only way in which such judgment  may be equitably distinguished.

The object should be to protect the society and to deter  the criminal in achieving the avowed object to law by imposing  appropriate sentence. It is expected that the Courts would  operate the sentencing system so as to impose such sentence  which reflects the conscience of the society and the sentencing  process has to be stern where it should be.   Imposition of sentence without considering its effect on

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the social order in many cases may be in reality a futile  exercise. The social impact of the crime, e.g. where it relates to  offences relating to narcotic drugs or psychotropic substances  which have great impact not only on the health fabric but also  on the social order and public interest, cannot be lost sight of  and per se require exemplary treatment. Any liberal attitude  by imposing meager sentences or taking too sympathetic view  merely on account of lapse of time or personal inconveniences  in respect of such offences will be result-wise counter  productive in the long run and against societal interest which  needs to be cared for and strengthened by string of deterrence  inbuilt in the sentencing system.  

In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC  220), this Court has observed that shockingly large number of  criminals go unpunished thereby increasingly, encouraging  the criminals and in the ultimate making justice suffer by  weakening the system’s creditability. The imposition of  appropriate punishment is the manner in which the Court  responds to the society’s cry for justice against the criminal.  Justice demands that Courts should impose punishment  befitting the crime so that the Courts reflect public abhorrence  of the crime.  The Court must not only keep in view the rights  of the criminal but also the rights of the victim of the crime  and the society at large while considering the imposition of  appropriate punishment. (See Union of India v. Kuldeep Singh  (2004 (2) SCC 590), Abu Ram v. Mukna and Ors. (2005 (10)  SCC 597) and Shailesh Jaswantbhai v. State of Gujarat and  Ors. (2006 (2) SCC 359).

The offence committed is certainly gruesome but the  State has not questioned alteration of conviction from Section  307 read with Section 149 IPC to Section 326 read with  Section 149 IPC.   

Considering the background facts it would be appropriate  to reduce the custodial sentence to five years but enhance the  fine in respect of each appellant to Rs.20,000/-.  In case the  fine amount is not deposited within two months, the default  custodial sentence would be two years.  In case the amount is  deposited, 3/4th of the amount deposited shall be paid to the  victim PW-7 within one month of the deposit.   

With the above modification of sentence, the appeal is  dismissed.