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Judgment
R. Kantha Rao, J.—This appeal is filed by the State, against the order of conviction dated 17.07.2001 in C.C. No. 446 of 1999 passed by the Assistant Sessions Judge, Gadwal.
The respondents were tried for the charges under Sections 307, 326 and 324 of IPC, but were convicted for the offence u/s 323 IPC and sentenced to pay a fine of Rs. 1,000/-each.
Aggrieved thereby the State preferred this appeal urging to alter the conviction for the offence punishable u/s 307 or 326 IPC and to enhance the sentence passed against the respondents.
Shortly stated, the prosecution case is that PW-5 (N. Sheshi Reddy) and respondents 1 and 2 are brothers. PW-5 had the border dispute in relation to a land with the respondents 1 and 2. Thus, on the date of the incident, the relations between both parties were very much strained. On 23.03.1999 at about 8.00 p.m. while PW-5, PW-3 (Bhaskar) were returning from the medical shop at Aize, the respondents 1 and 2 caught hold of PW-5 and started beating him with hands. They dragged him into a jeep and beat him with stones indiscriminately causing simple as well as grievous injuries. Subsequently, they threw him away from the jeep and fled away from the venue of offence. The incident was also witnessed by PW-2 (Sheshi Reddy) and PW-4 (Thimmappa).
Subsequently, on a report lodged by PW-3, a case in Crime No. 17 of 1999 was registered in Police Station, Aize by PW-10 (G. Lakshmanna, Head Constable) and was investigated into. On completing investigation, charge sheet was laid against the respondents and ultimately they were put up for trial before the Assistant Sessions Judge, Gadwal for the charges under Sections 307, 326 and 324 IPC.
The prosecution, in order to prove its case before the learned Court below, examined PWs. 1 to 12, marked Exs.P-1 to P-9 and M.Os. 1 to 7. The Court below upon considering the material on record, acquitted the respondents for the offences under Sections 307, 326, and 324 IPC, but convicted them for the offence u/s 323 IPC and sentenced each of them to pay a fine of Rs. 1,000/-.
Aggrieved thereby, the State preferred this appeal on the ground that the conviction of the respondents ought to be either u/s 307 or 326 IPC and that the sentence passed against the respondents also is inadequate.
At the hearing of the appeal, the respondents Bani Singh and ohters Vs. State of U.P., wherein it was held that when both the appellant and his lawyer were absent on appointed day for hearing, the Court is not bound to adjourn the case, but it should dispose of the appeal on merits and in Dharam Pal and Others Vs. State of U.P., wherein it was held that "when the appeal was taken up by the High Court for hearing, the counsel showed inability to argue as the appellant was not responding to his letters, the High Court scrutinized the record with the assistance of the Government Advocate and disposed of the appeal on merits, the High Court was justified in disposing of the appeal on merits as that is clear mandate of Sections 385 and 386 of Cr.P.C. and declined to remand back the matter", proceeded to hear the Public Prosecutor, perused the evidence and other material papers and delivered the following judgment.
Turning to the case on hand, PW-5, the injured has categorically spoken to the fact of the respondents pouncing upon him while he was coming along with PW-3, beating him with hands, dragging him into the jeep forcibly, and thereafter beating him with stones indiscriminately and causing grievous injuries. PWs.2 to 4 also corroborated the evidence of PW-5 on material particulars. PW-11 (Dr. C. Venkat Rao) deposed that on a requisition by the police, he examined PW-5 and he found the following injuries:
1) A lacerated would on occipital region measuring 2" x 1 cm,
2) A lacerated wound over occipital region measuring 4" x 1 cm,
3) An irregularly placed lacerated wound over left parietal region of size 6" x 1" bleeding present,
4) Lacerated would over center of vertex of size 5" x 1 cm.,
5) Lacerated wound adjacent to wound No. 4 of size 3" x 1 cm,
6) An abrasion with a contusion of size 7" x 2" over left scapular region,
7) Multiple abrasion over upper back red in colour,
8) Vertically placed lacerated wound above the right eyebrow of size 2" x 1cm,
9) A lacerated wound of size 1" x 1 cm over chin,
10) Contusion over right zygomatic region of size 1" diameter,
11) Loss of teeth one incisor and one canine over left lower jaw.
Basing on the x-ray report, the doctor stated that the injury Nos.3 and 11 are grievous in nature and the other are simple injuries.
However, in the cross-examination, the doctor deposed that the injuries found on the person of PW-5 were possible with stick or iron rod but not with stones.
The learned Court below, though arrived at the conclusion that the injuries were caused to PW-5 by the respondents 1 and 2, arrived at the opinion that it is not possible to hold that the injury Nos.3 and 11 are grievous in nature since the radiologist was not examined and also in view of the opinion expressed by the doctor that such injuries are not possible with stones but only possible with sticks or iron rods, the medical evidence comes into conflict with ocular version of PW-5. Arriving at the said conclusion, the learned trial Court convicted the respondents only for the offence u/s 323 IPC and let them off with a fine of Rs. 1,000/-each.
Now the point for determination in this appeal is whether the order of conviction and sentence passed by the learned Court below is justified.
In the first place, it may be noticed that the learned trial Court has fallen into grave error in arriving at the conclusion that the medical evidence in this case comes into conflict with oral evidence. The learned trial Court lost sight of the fact that the medical evidence is only opinion evidence and when there is convincing and reliable oral evidence forthcoming, the same would prevail over the medical evidence, unless, of course, the medical evidence is of such a nature that it completely rules out the possibility of happening of the incident in the manner stated by eyewitnesses.
In the instant case, the injuries noticed by PW-11, the doctor on the person of PW-5 are lacerations, abrasions, contusions and loss of teeth. The expert opinion is not necessary to arrive at the conclusion that the injuries received by PW-5 are possible with stones. For the reasons best known to PW-11, he stated that the said injuries are possible only with sticks or iron rods. The evidence of PW-11 is totally misconceived and does not stand to reason. When the positive evidence of PW-5, the injured is available to the effect that the respondents 1 and 2 beat him with stones indiscriminately and in all probability when such injuries are possible with stones, the learned trial Court should not have given undue importance to PW-11 whose opinion does not stand to reason. Thus, the finding arrived at by the trial Court that the medical evidence in this case comes into conflict with oral evidence is also totally misconceived and is rejected in this appeal by holding that the injuries received by PW-1 are quite possible with stones.
Now the question arises for consideration is which provision of the Indian Penal Code is attracted by the criminal act committed by the respondents.
The evidence of PW-5 is that after dragging him into the jeep, the respondents 1 and 2 beat him with stones indiscriminately. Though, the stones and other blood stained clothes were seized by the police, there is no clear picture as to with which kind of stones PW-5 was beaten up, since there is no finding recorded on this aspect by the learned trial Court. On account of the insufficiency of the evidence on this aspect, it is not possible to conclude that the respondents 1 and 2 caused injuries to PW-5 by dangerous weapons or means, but by indiscriminately beating with stones, the respondents 1 and 2 had the knowledge that by their act grievous injuries are likely to be caused. Therefore, the offence committed by the respondents squarely falls u/s 325 r/w 34 IPC. The finding of the trial Court that the offence committed by the respondents falls u/s 323 IPC is unreasonable as well as perverse. In this appeal therefore, the respondents are found guilty for the offence u/s 325 read with 34 IPC and are convicted for the said offence.
As regards the sentence, the trial Court took extremely liberal view in the matter of sentencing by letting off the respondents with a fine of Rs. 1,000/-.
Before adverting to the issue of proportionality of sentence in this case, it would be necessary to refer to the following decision of the Apex Court in the case of State of Madhya Pradesh Vs. Ghanshyam Singh, wherein it was laid down that "in operating sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix - criminal law adheres to the principal of proportionality in prescribing liability according to the culpability of each kind of criminal conduct - proportion between crime and punishment remains a strong influence in the determination of sentences. Imposition of sentence without considering its effect on the social order may be in reality a futile exercise."
It is true that sentencing is a matter entirely rests within the discretion of the trial Court. But the punishment inflicted by the trial Court should be commensurate with the gravity of the crime. In our country there are no statutory rules governing sentencing policy. But this does not mean that the Courts are without any guidance in regard to the sentencing policy. The lower Courts have to follow the norms which are generally adhered to by the superior Courts in imposing punishment. The sentencing is a balanced Act and is not arbitrary exercise of discretion by the Court. The punishment imposed must have some factual and legal basis. Otherwise the appellate Court has to certainly interfere with the order of sentence and it has to take up the job of awarding appropriate punishment.
In the instant case the respondents who are no other than the brothers of P.W-5, the injured inflicted as many as eleven injuries on his person by beating him with stones indiscriminately. Two of the injuries were found to be grievous in nature. The respondents resorted to commit the aforementioned criminal Act without any provocation from P.W-5. The nature of offence and the manner in which it was perpetrated has to be certainly viewed with any amount of seriousness. But the trial Court taking too liberal view washed off it''s hands by letting off the respondents with a fine of Rs. 1,000/- each. The punishment thus imposed is not commensurate with the gravity of crime. Resorting to the sentencing policy like the one adopted by the trial Court renders Criminal Justice System a mockery.
As such in this appeal, the sentence passed by the learned trial Court is also set aside and the respondents are sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs. 5,000/- each in default to suffer Simple Imprisonment for two months for the offence u/s 325 read with 34 of IPC. The entire fine amount realized shall be paid as compensation to P.W.5 u/s 357 Cr.P.C.
The appeal filed by the State succeeds and the same is accordingly allowed.