Nanda Gopal... v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 31ST DAY OF OCTOBER 2014/9TH KARTHIKA, 1936 CRL.A.No. 285 of 2003 ( ) -------------------------AGAINST THE JUDGMENT IN SC 366/2001 of ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM DATED 10-02-2003 APPELLANT(S)/ACCUSED: ---------------------------------------- NANDA GOPALAN, S/O.ACHUTHAN MANALIL PUTHENPURAYIL VEEDU, THIRUVANIYOOR KARA THIRUVANIYOOR VILLAGE, ERNAKULAM DISTRICT. BY ADVS.SRI.P.VIJAYA BHANU (SENIOR ADVOCATE) SMT.PREETHI K.PURUSHOTHAMAN SMT.P.MAYA RESPONDENT(S)/COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE C.I. OF POLICE, PUTHENCRUZ POLICE STATION (CRIME 113/99 OF PUTHENCRUZ POLICE STATION) REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.BINDU GOPINATH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.10.2014, ALONG WITH CRL.A. 1679/2006, THE COURT ON 31-10-2014 DELIVERED THE FOLLOWING: ## **“C.R.”** ## **A.HARIPRASAD, J.** **-------------------------------------Crl.Appeal Nos.285 of 2003 & 1679 of 2006** **-------------------------------------Dated this the 31[st] day of October, 2014.** ## **COMMON JUDGMENT** These two appeals arise out of a judgment passed by the learned Additional Sessions Judge, whereby he convicted the sole accused under Sections 324 and 326 of the Indian Penal Code (in short, “IPC”). Feeling aggrieved by the conviction and sentence, the accused has come up in appeal. The accused was also charged for an offence punishable under Sec.307 IPC, for which he was acquitted. State has preferred another appeal against the acquittal. Both these appeals were heard together. I dispose them by this common judgment. For clarity, the parties are referred to as the accused and the prosecution respectively. 2. Facts, in brief, are thus: Accused is a relative of PW1, the injured witness. They were in enmical terms in connection with a dispute relating to removal of earth by PW1 from his property, which caused loss of lateral support to the land of the accused. Prosecution alleged that the accused, with an intention to murder PW1 and with the knowledge that former's act is likely to cause death of him, attacked PW1 at 7.30 a.m. on Crl.Appeal Nos.285/2003 & 1679/2006 2 14.05.1999, while he was walking through Thiruvaniyoor-Mamala public road. The accused beat him using 'madakkala bat' (a bat made of stem of coconut palm leaf) from behind. On receiving the blow, PW1 fell down. Thereafter, the accused sat on the chest of PW1 and hit him with a piece of granite, causing severe injuries on his face. PW1 lost teeth in the attack and sustained fracture on nasal bone. Prosecution, therefore, alleged that the accused was guilty under Secs.307, 324 and 326 IPC. 3. Prosecution examined 12 witnesses and marked ten documents. Material objects are MOs1 to 7. 4. Heard the learned counsel for the accused and the learned Public Prosecutor. 5. Learned counsel for the accused contended that none of the witnesses is reliable. The court below, after having found that some of the ocular witnesses are not reliable, erred in convicting the accused on the basis of oral evidence of some other prosecution witnesses, who are also not reliable. Learned Prosecutor, per contra, contended that the court below should have considered the credible oral evidence tendered by eye witnesses, who are family members of the victim and who had no reason to falsely incriminate the accused. The accused should have been convicted under Sec.307 IPC as well. 6. I have carefully gone through the oral evidence and the Crl.Appeal Nos.285/2003 & 1679/2006 3 judgment of the court below. Prosecution mainly relied on the testimony of PW1, the victim, PWs 2 and 3, his sons and PW8, his wife. Apart from the above interested witnesses, learned Prosecutor placed strong reliance on the testimony of PWs 4, 5 and 6, the independent witnesses who supported the prosecution case. 7. PW1, Sukumaran and the accused were at loggerheads before the incident is an undisputed fact. Accused is the son of PW1's cousin brother. PW1 and members of his family testified that a couple of days before the incident, the accused came on a bicycle, when PW1 was walking through a road, and threatened PW1 with bodily harm. PW1 further testified that on the fateful day, when he was walking towards western direction through a public road, the accused came from behind and beat on his head by using a bat made of a coconut leaf stem. The incident was on a public road running through the southern side of the accused's house. PW1 fell down on receiving the blow. Immediately, the accused picked up a stone and hit on the forehead of PW1. PW1 lost consciousness. Thereafter, the accused sat on PW1's chest and hit him with the stone, causing serious injuries. PW1 was actually proceeding to his paddy field. Time of the incident was about 7.30 a.m. on 14.05.1999. PW1 stated that when he re-gained consciousness, he was in Medical Trust Hospital, Ernakulam. He was an inpatient for 32 days. He had to be 4 Crl.Appeal Nos.285/2003 & 1679/2006 fed through nose. He sustained extensive injuries on various parts of face. According to PW1, the accused attacked him with an intention to kill. He identified MOs 1 and 2 (pieces of broken bat) used to beat him. This witness was subjected to searching cross-examination. It would appear from the trend of cross-examination that defence wanted to project a case that PW1 was the aggressor and in a scuffle ensued between PW1 and the accused, the former sustained injuries. PW1 denied this version. Accused was a toddy tapper. PW1 admitted that at the time of the incident, the accused was not having tapper's knife in his possession. The testimony of PW1 remains credible. 8. Exts.P5 and P6 are the medical records pertaining to PW1. They were proved by PW10, Dr.Anandam Radhakrishnan. On 14.05.1999, she was working as Causality Medical Officer in Medical Trust Hospital, Ernakulam. At about 8.45 a.m., she examined PW1. Ext.P5 shows the following injuries: _“(1) 4 x 1 cms through and through lacerated wound over left angle of the mouth extending upwards exposing left upper gum. The second, third and fourth teeth on the upper gum missing._ _(2) 4 x .5 x .5 cms lacerated wound over the lateral half of the left eyebrow with 1 cm long two extensions upwards._ 5 Crl.Appeal Nos.285/2003 & 1679/2006 _(3) 1 x .25 x .25 cm incised wound over the bridge of nose vertically placed._ _(4) Irregular tear of right pinna of the ear exposing cartilage._ _(5) Contusion over the right angle of the mandible._ _(6) Contusion with swelling over left maxilla with two bleeding lacerated wound over it.”_ 9. Ext.P5 revealed the history and alleged cause of injury. It is stated that an assault by the accused with knife and stone at Thiruvaniyoor at 7.30 a.m. on 14.05.1999 caused the injuries. It shows that PW2 described the details about the cause of injury to the doctor. It is axiomatic that due weight should be given to this statement as it is the first version relating to the incident. Unless there are cogent reasons to find that there is false implication of the accused in the crime, the recitals in Ext.P5 will have to be attached due weight. PW10 Doctor testified that at the time of discharge, PW1 was feeling hemiplegia (paralysis of one side of the body). It is also testified by PW10 that PW1 was admitted in a critical stage and the details seen on Ext.P5 were narrated by PW3, Binu, son of the injured. The Investigating Officer questioned PW10 after showing the relevant material objects allegedly used by the accused against PW1. PW10 deposed that the injuries noted could be made by sharp edged and blunt weapons. This witness was subjected to cross-examination. Suggestion 6 Crl.Appeal Nos.285/2003 & 1679/2006 put forward by the defence at the time of cross-examination, that during a grapple if PW1's face came into contact with rough stones such injuries could be caused, has been denied by the witness. The Doctor was of opinion that if PW1 had forcefully fallen on a granite boulder, injuries 1 and 6 could be caused. Testimony of PW10 would show that the injuries noted above were the result of a forceful assault on the victim. 10. Testimony of PWs 2 and 3 can be considered together. The trial court disbelieved these witnesses. According to the prosecution, they are eye witnesses to the incident. They are children of the victim. PW2 was working in a local Post Office at the time of incident. Normally he used to go to the Post Office after 9.00 a.m. But on the date of occurrence, he started at 7.30 a.m.. According to PW2, he saw the accused beating PW1. He further saw the accused sitting on the chest of his father and hitting with a stone. It is also testified by PW2 that the accused beat him with MOs 1 and 2. PW2 testified that due to forceful hit, the bat broke into two pieces, viz., MOs 1 and 2. The accused abandoned the bat and went away. PW2 cried out for help. At that time PWs 3, 6 and 8 came to the spot. He stated that some other persons also reached at the place of occurrence after a short while. 11. PW3 is another son of PW1. On hearing cry for help from PW2, PW3 also rushed to the place and found the accused attacking PW1 Crl.Appeal Nos.285/2003 & 1679/2006 7 with a stone. At that time, the accused was positioned on the chest of PW1. Thereafter, the accused beat PW1 with MOs 1 and 2. PW2 also saw his mother (PW8) and Bharathi (PW6) coming to the place. Both PWs 2 and 3 deposed that Bharathi (PW6) lifted the injured and placed him on the lap of PW8. His face was cleaned up by using a towel and it was tied around to arrest bleeding. At that time, his father was almost unconscious. These two witnesses were cross-examined at length by the defence. It was tried to establish that these witnesses were not present at the time of occurrence. Defence case is that these two witnesses are uttering lies that they had seen the incident. Court below rejected the testimony of PWs 2 and 3 mainly on the reason that they had no explanation for not attempting to save their father when the accused was assaulting him. Court below found that they cannot be believed because grown up children may not behave in the manner in which PWs 2 and 3 said to have behaved. Still further, the testimony of PW6 was relied on to hold that they were not present at the time of occurrence. 12. Regarding the conduct of witnesses, there are certain well settled principles. Every person, who witnessed a crime, reacts in his own way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate the evidence in a wholly unrealistic and unimaginative way (see 8 Crl.Appeal Nos.285/2003 & 1679/2006 **Umesh v. State of Maharashtra ((2007) 15 SCC 393** ). The Supreme Court in **State of Orissa v. Dibakar Naik (AIR 2002 SC 2148)** held that post event conduct of a witness cannot be predicted on specified lines. 13. It is indubitable that there cannot be any straight jacket formula prescribing the mode of response for each and every person who sees a crime, however close the person so witnessing the crime may be related to the victim. It is beyond any pale of dispute that post event conduct of a witness varies from person to person and where the presence of the witness at the place of occurrence is established and his testimony is found otherwise reliable, his evidence could not be discarded merely because he did not behave in the expected lines. The Supreme Court in **Satvir v. State of Uttar Pradesh (AIR 2009 SC 1741)** held that simply because the eye witnesses did not make any attempt to save life of the deceased from the clutches of the accused, their abnormal conduct by itself cannot be taken as a ground to disbelieve and discard their testimony in regard to the genesis of the occurrence and the part played by the accused. Therefore, I am unable to agree with the reasoning of the court below that merely for the reason that they did not venture to save their father from the clutches of the accused, it cannot be said that they were not present at the place of occurrence. It is all the more important to note that it has come out in evidence that the accused was a hefty and strong man. PW2, in cross- 9 Crl.Appeal Nos.285/2003 & 1679/2006 examination, deposed that he did not attempt to save his father because he was petrified on seeing the gruesome attack. It is true that we may have to look for corroboration from other witnesses as well. 14. The concept of interested or partisan witnesses also arise for consideration. The term “interested witness” postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or other convicted because he had some animus towards the accused (see **Sarwan Singh and Others v. State of Punjab - AIR 1976 SC 2304 and Mst. Dalbir Kaur and others v. State of Punjab** **- AIR 1977 SC 472** ). In short, a witness can be called an interested one only when he or she derives benefit from the result of a litigation, be it a civil case or a criminal prosecution. It is trite that evidence of a witness cannot be discarded merely on the ground of his being an interested witness as the witness will not leave the real culprits and rope in innocent persons, particularly when no material could be elicited in his crossexamination casting doubt on his credibility (see **Bhupendra Singh v. State of Punjab - AIR 1968 SC 1438, Baitullah and another v. State of U.P. - AIR 1997 SC 3946** and **State of Rajasthan v. Hanuman - AIR 2001 SC 282** ) Therefore, the testimony of PWs 2 and 3 cannot be straight away jettisoned for the reasons mentioned above. 15. PW4 Haridas, PW5 Joy, PW6 Bharathi and PW7 Vijayan are 10 Crl.Appeal Nos.285/2003 & 1679/2006 independent witnesses cited by the prosecution to establish the incident. Out of them, PW7 did not support the prosecution case. Other witnesses lent considerable support to the prosecution case. Learned counsel for the accused contended that the court below for valid reasons discarded the evidence of PWs 4 and 5. The court below relied on the testimony of PW6 to find that PWs 4 and 5 might not have been present there at the time of occurrence. Normal rule is that the testimony of an independent witness has to be given due weight, if it could not be established in crossexamination that he had ostensible reasons to falsely implicate the accused in the crime. In other words, evidence tendered by an independent witness may be relied on, if it is not tainted with any oblique motive for false implication. 16. The terms “independent witness” and “chance witness” will have to be clearly distinguished. “Chance witness” is a person, who claims to be present at the scene of crime by sheer chance. Unless reason for his presence at the scene is properly accounted for, the courts may be loathe in accepting his evidence as the true version of the incident. It is settled law that testimony of an independent witness shall not be brushed aside labelling him as a chance witness. Catena of decisions of this Court and the Apex Court are available on the point that where the presence of an independent witness was natural at the place he professed to be in, such 11 Crl.Appeal Nos.285/2003 & 1679/2006 witness cannot be dubbed as a chance witness (see **Vikram Singh and Others v. State of Punjab (AIR 2010 SC 1007** )). To illustrate this aspect, it can be stated that in a market place or public road every passer-by is a chance witness. In the case of such a witness, if he gives sufficient reason for his presence at the place of occurrence and his version remains credible even after testing by cross-examination, his evidence can be accepted. Only condition that can be laid down for accepting the evidence of an independent witness, who happened to be present at the crime scene by chance, is that his presence at the time and place of occurrence should be satisfactorily established. The Supreme Court in **Sarvesh Narain Shukla v. Daroga Singh and Others (AIR 2008 SC 320)** held that if the court comes to the conclusion that if the testimony of a chance witness is credible, the evidence cannot be thrown out merely on the ground that the witness happened to be present only by chance. With this understanding of law, we shall consider the testimony of PWs 4, 5 and 6. 17. PW4 is a maison by profession. On 14.05.1999 at about 7.15 a.m., he witnessed the incident in which PW1 sustained injuries at the hands of the accused. He was riding a scooter through the public road. He found a tall man walking behind a short man. He also saw a thing looking like a bat held by the tall man, who was walking behind the short man. He had to slow down his vehicle to give side to a bus sped through 12 Crl.Appeal Nos.285/2003 & 1679/2006 the road. Then, he heard a cry from behind. He stopped the vehicle. At that time, he saw the tall man pushing the short man to the other side of the road and the short man falling down. When the short man fell down, the hefty man sat on his chest and hit him with a piece of granite. He saw some people coming in that direction. After assaulting the person lying on the ground, the aggressor went away donning the peeled off loin cloth. At that time some persons came and lifted the victim. Immediately he was removed to the hospital in a jeep. PW4 proceeded to his work place. PW4 in chief-examination stated that neither the aggressor nor the victim was known to him before the incident. Later, he understood the identity of the persons and he identified the accused from the dock. He identified the weapons also used for inflicting injury to PW1. In cross-examination, he adhered to the prosecution case. In spite of the best efforts, no dent or discredit could be made to the testimony of PW4. It was suggested to PW4 during cross-examination that PW1 was the aggressor, which he denied. He went to the victim after some ladies reached at the spot. This version tallied with the testimony of PWs 6 and 8. Suggestion put to this witness in cross-examination that PW1 might have sustained injuries due to a fall on a ground full of granite boulders was denied by this witness. 18. PW5 is a fish vendor. He used to collect fish from Chambakkara Market and carry it on a two wheeler for sale. He also Crl.Appeal Nos.285/2003 & 1679/2006 13 reached at the place of occurrence after 7.00 a.m. He saw PW1 lying on the side of the road, the accused sitting on his body and assaulting him with a piece of granite. He identified the accused from the dock and said that the persons involved in the incident were known to him previously as he used to pass through that area for selling fish. It is his case that the accused beat PW1 by using MOs 1 and 2. PWs 4 and 5 were known to each other even earlier. Strenuous cross-examination on this witness did not yield result to show that he was planted by the prosecution. 19. PW6 Bharathi is a milkmaid. She knew the accused and PW1 long prior to the incident. All of them are living in the same locality. On the fateful day, at about 7.45 a.m., she saw PW1 lying on the side of a road. She immediately rushed to him. At that time PW8, wife of PW1, came to the place and saw her husband in utter distress. PW6 lifted PW1 to a sitting position and he was made to sit leaning on to the leg of PW8. She could not re-collect as to how many persons came to the place at that time. Somebody brought water and that was given to PW1 by PW8. She did not remember as to whether PWs 2 and 3 were present there at that time. No serious cross-examination was attempted on this witness. I am unable to agree with the finding of the court below that based on the testimony of PW6, the claim made by PWs 2 to 5 that they were present at the place of occurrence can be doubted. As mentioned earlier, I find no reason to hold 14 Crl.Appeal Nos.285/2003 & 1679/2006 that either PW4 or PW5 were testifying to unduly support the prosecution. There is no material to find that they were having too much affinity towards PW1 or spite towards the accused. Testimony of PW6 cannot be the basis to infer absence of PWs 2 to 5 at the place of occurrence at the relevant time. 20. Exts.P5 and P6 would show that PW3 informed PW10, the Doctor, that the accused inflicted injury by using a knife and stone. PW3 deposed that he did not inform PW10 that the accused used knife to attack his father. It is true that none of the prosecution witnesses has stated that the accused was holding a knife at the time of attacking PW1. Merely for this contradiction, the entire testimony of PW10 or PW3 cannot be thrown overboard. Totality of evidence of the material prosecution witnesses tend to show that the victim suffered injuries in an incident occurred on the date and time as alleged by the prosecution. 21. Learned counsel for the accused contended that there is evidence to show that the accused also sustained injuries in the incident and he was admitted in a hospital. But the investigating agency did not probe into the reasons for hospitalisation of the accused. PW9 registered Ext.P1 first information report and recorded Ext.P1(a) statement. Even in chief-examination, PW11, Sub Inspector of Police, deposed that the accused was admitted in Government Hospital, Ramamangalam after the 15 Crl.Appeal Nos.285/2003 & 1679/2006 incident. He went to the hospital and recorded statement of the accused. PW11 emphatically stated that in the incident the accused did not sustain any noticeable injury. PW11 therefore did not register a case against PW1 in connection with the incident. The accused was kept under surveillance. In cross-examination, PW11 stated that no cognizable offence was disclosed from the statement of the accused. However, fact remains that no case was registered at the instance of the accused against PW1. 22. PW12 was the Circle Inspector of Police, Puthencruz at the material time. He conducted investigation of the case. He proved recovery of material objects and preparation of material documents. In crossexamination, he stated that PWs 4 and 5 were examined by him and he was convinced that they witnessed the incident. The defence counsel attempted to bring out through this witness that the case diary statements do not reveal the fact that they had witnessed the incident. However, they gave a detailed account of the incident before the trial court. They were subjected to cross-examination without much result in bring out any discredit. The legal principle that the court can issue summons to a witness, who had not been questioned by the Police is well settled. In the Code itself we find vast powers given to a criminal court as per Sec.311 of the Code of Criminal Procedure (in short, “Cr.P.C.”) to summon a material witness or examine a person in attendance in court. It is very clear that this 16 Crl.Appeal Nos.285/2003 & 1679/2006 power can be exercised by the court at any stage of any enquiry, trial or other proceeding under the Code. The power can be exercised by the court at any time before pronouncement of judgment is also well settled. Indisputably it is clear that a witness can be examined by the court by invoking Sec.311 Cr.P.C. even without his previous statement. The said provision recognizes the power inherent in a criminal court to effectively and completely adjudicate the case before it. Hence, merely for the reason that PWs 4 and 5 did not speak about witnessing the incident, if at all that is accepted as true, it shall not be a reason to reject their evidence tested by cross-examination. Similarly, the Court is having power to receive any document, which was not seized by the police in the course of investigation is too well settled. The Supreme Court in **Central Bureau of Investigation v. R.S.Pai (AIR 2002 SC 1644)** held as follows: _“Normally the Investigating Officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or charge-sheet, it is always open to the Investigating Officer to produce the same with the permission the Court. Considering the_ 17 Crl.Appeal Nos.285/2003 & 1679/2006 _preliminary stage of prosecution and the context in which Police Officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which prosecution proposes to rely, the word 'shall' used in sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Further, the scheme of sub-section (8) of S. 173 also makes it abundantly clear that even after the chargesheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to investigation. In such cases, there cannot be any prejudice to the accused.”_ Therefore, only for the reason that the case diary statements of PWs 4 and 5 did not contain any version that they had seen the incident, that will not _ipso facto_ make their deposition unreliable, provided the evidence inspires confidence in the mind of the court. PW12 also deposed that the accused did not sustain any visible injury in the incident and there was no occasion for him to register a case in favour of the accused in connection with the Crl.Appeal Nos.285/2003 & 1679/2006 18 incident. It is all the more important to note that the accused was arrested after discharging him from the hospital and he has not filed a complaint before police or Magistrate having jurisdiction that he was the actual victim in the incident. This conduct of the accused is also relevant. 23. Learned counsel for the accused contended that nonexplanation of the injuries sustained by the accused throws considerable doubt on the veracity of the prosecution case. Pronouncements of the Supreme Court and this Court are relied on to fortify this contention. **State of Rajasthan v. Madho and another (1991 Supp (2) SCC 396)** is cited to contend a proposition that if the prosecution witnesses shy away from the reality and do not explain the injuries caused to the accused, it casts a doubt on the genesis of the prosecution case since the evidence showed that the injuries on the accused sustained in the course of the same incident. The facts in this case are totally different from those in our case. It can be seen that the accused in the said case sustained extensive injuries and the prosecution case that the accused was the aggressor could not be satisfactorily established. The benefit of that proposition cannot be claimed by the accused herein because of the reasons aforementioned. 24. Similarly, learned counsel for the accused relied on **Subramani and others v. State of T.N. ((2002) 7 SCC 210)** . That was a case wherein the accused took a specific case of private defence. In that Crl.Appeal Nos.285/2003 & 1679/2006 19 context, the Supreme Court held that the accused might have sustained simple injuries, but then the prosecution has an obligation to explain the same. This decision also can be clearly distinguished on facts. In the absence of any reliable material to show that the accused sustained any injury in the incident and the fact that the accused did not raise any complaint regarding the role played by PW1 in the happening, it cannot be held that the prosecution suffers any infirmity in not establishing the reasons for hospitalisation of the accused. 25. On reconsidering the entire evidence, I find that the court below is perfectly justified in convicting the accused for offences punishable under Secs.324 and 326 IPC. The prosecution case that the accused attacked PW1 with an intention to commit murder has not been established. It is true that the evidence in the case clearly show that the accused attacked PW1 by using MOs 1 and 2 and also MO3 and that too on a vital part of PW1's body. But the evidence adduced by the prosecution witnesses fall short of proving the intention or knowledge required to attract an offence under Sec.307 IPC. Nevertheless, the causing of grievous hurt by the accused on PW1 is well established. Therefore, the court below is justified in acquitting the accused for the offence under Sec.307 IPC. 26. Learned counsel for the accused submitted that considering Crl.Appeal Nos.285/2003 & 1679/2006 20 the relationship between the parties some leniency may be shown in the matter of sentence. The court below sentenced the accused to suffer rigorous imprisonment for a period of two years under Sec.324 and rigorous imprisonment for a period of five years under Sec.326 IPC. Default sentences were also imposed. That apart, a fine of `10,000/under Sec.326 IPC was also imposed on the accused. I am of the view that the fine amount imposed by the court below and the compensation ordered to be paid therefrom are not commensurate to the injuries suffered and the expenses incurred for treatment by PW1. It is settled law that enhancement of fine amount cannot be treated as enhancement of sentence in an appeal filed by the accused, if the substantive sentence is reduced in appeal (see **Nand Ballabh Pant v. State (Union Territory of Delhi) - AIR 1977 SC 892** and **Devu v. Excise Circle Inspector - 1986 KLT 413** ). Reckoning the entire facts and circumstances, the sentence is modified in the following manner. In the result, Crl.Appeal No.1679 of 2006 is dismissed. Crl.Appeal No.285 of 2003 is partly allowed. Convictions imposed by the trial court on the accused under Secs.324 and 326 IPC are confirmed. The accused shall undergo rigorous imprisonment for a period of two years under Sec.324 IPC. His sentence under Sec.326 IPC is reduced to rigorous imprisonment for three years. He shall pay a fine of `30,000/- Crl.Appeal Nos.285/2003 & 1679/2006 21 (Rupees Thirty thousand only) under Sec.326 IPC and on recovery of that amount, it shall be paid as compensation to PW1/injured under Sec.357(1) of the Code of Criminal Procedure. Rest of the directions in the judgment of the court below are confirmed. Court below shall take appropriate steps to enforce the sentence on receipt of records from this Court. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks** 22 Crl.Appeal Nos.285/2003 & 1679/2006 ## **A.HARIPRASAD, J.** **Crl.Appeal Nos.285 of 2003 & 1679 of 2006** **JUDGMENT** **31[st] October, 2014**