JUDGMENT (oral) N.A. Britto, J.— This is a State’s appeal against acquittal. 2. The respondents (accused), for short), having been charged and tried under Sections 504, 427, 506, 324 and then 325 I.P.C. read with 34 I.P.C., have been acquitted by the learned Judicial Magistrate, F.C., Canacona by Judgment and Order dated 24.9.2003. 3. Briefly stated, upon a complaint/First Information Report having been filed by PW.2 Shevlo, the case came to be investigated by PW.12 P.I. Mohan Naik and the accused prosecuted on a charge-sheet filed before the J.M.F.C. 4. The case of the prosecution was that on 19.3.1997, at about 18.45 hours at Saleri, both the accused in furtherance of their common intention abused the said PW.2 Shevlo and assaulted him with weapons, kicks, etc., causing him grievous injuries and tore his shirt and threatened to kill him, while he was in a running KTC bus. 5. The case of the accused was one of denial simpliciter. The accused stated that they were not at all present in the said bus. 6. The Prosecution examined as many as 13 witnesses to support the charges against the accused. However, the learned J.M.F.C. found that the version of PW.2, Shevlo was not consistent and was, otherwise, not corroborated by the evidence of PW.4 Bernard and PW.5 Gerald and also PW.8 Gurudas who were the so called eyewitnesses. The learned J.M.F.C. appears to have been swayed in favour of the accused by the fact that the prosecution had not examined any passengers or any independent witnesses who were present in the bus, totally losing sight of the fact that PW.4 Bernard and PW.5 Gerald who were the Conductor and the Driver respectively of the said bus, were independent witnesses, as independent as could have been. The learned J.M.F.C. also proceeded on the assumption that the attached panchanama Exhibit PW.3/A was not proved inspite of the fact that PW.3 Navnath was examined in support of the same. In fact, the learned J.M.F.C. ought to have taken little pains and found out as to what had happened to the grey colour pant of PW.2 Shevlo which was not available for identification and which, admittedly, was sent to the Court of the learned J.M.F.C. and was received in that Court. 7. In fact, the learned J.M.F.C. ought to have taken little pains and found out as to what had happened to the grey colour pant of PW.2 Shevlo which was not available for identification and which, admittedly, was sent to the Court of the learned J.M.F.C. and was received in that Court. 7. On behalf of the State, Shri Sardessai, the learned Public Prosecutor has submitted that the impugned Judgment/Order of the learned J.M.F.C. is absolutely perverse and needs to be corrected by this Court. Shri Sardessai has placed reliance on the case of Dwarka Das v. State of Haryana1, wherein the Supreme Court has observed that if a Judgment of the Sessions Judge is absolutely perverse, legally erroneous and based on a wrong appreciation of evidence, then it would be just and proper for the High Court to reverse the Judgment of acquittal as, otherwise, there would be gross miscarriage of justice. Reliance is also placed on behalf of the Prosecution on the case of Amar Singh v. Balwinder Singh and ors.2, wherein the Supreme Court has stated that in an appeal from conviction, the Appellate Court can reverse the findings and sentence and acquit or discharge the accused or order the matter to be retried by the Court of competent jurisdiction. The Supreme Court has also observed that in a case based upon direct eyewitnesses, the testimony of the eye witnesses is of paramount importance and if the Appellate Court reverses the findings recorded by the trial Court and acquits the accused, without considering or examining the testimony of eye- witnesses, it will be a clear infraction of Section 386, Cr.P.C. On behalf of the accused, Ms. Collasso has submitted that the presumption of innocence in favour of the accused gets reinforced by the fact that the accused had been acquitted by the trial Court and that the said presumption ought not to be brushed aside and needs to be taken into consideration . 8. In my view, this is not a case where two views were possible and the accused had to be given benefit of doubt. 9. In my opinion, the appreciation of evidence by the learned J.M.F.C. has been totally perverse. The learned J.M.F.C. placed undue importance on the fact that the passengers of the bus were not examined by the Prosecution in support of its case. 9. In my opinion, the appreciation of evidence by the learned J.M.F.C. has been totally perverse. The learned J.M.F.C. placed undue importance on the fact that the passengers of the bus were not examined by the Prosecution in support of its case. The learned J.M.F.C. totally lost sight of the fact that after the bus reached its destination the passengers would normally get down and walk away to their respective destinations. Here was the case where the Prosecution had examined two important and independent witnesses, namely PW.4 Bernard and PW.5 Gerald who were the Conductor and the Driver of the bus and who were most natural and independent witnesses to prove the entire incident of assault on PW.2 Shevlo. Moreover, the case of the prosecution is sufficiently corroborated in material particulars at every step. Apart from the evidence of the said PW. 4 Bernard and PW.5 Gerald who were the Conductor and the Driver of the said bus, wherein the incident took place, there was the evidence of PW.8 Gurudas who was, otherwise, not an eye- witness to the main incident of assault. PW.8 Gurudas had stated that he had a grocery shop by the side of the road at Molorem and that somewhere on 19th or 20th of March, 1997, a conductor had come to him and informed him that somebody was assaulted inside the bus and at that time he went near the door of the bus when he saw both the accused getting down from the bus from whom he inquired as to why they were assaulting somebody in the said bus and further telling them that they should assault that person in their own village. According to him, thereafter, both of the accused went away and after sometime, PW.2 Shevlo appeared and latter requested him to reach him to Canacona. PW.8 Gurudas had further stated that he made arrangements and sent PW.2 Shevlo in a jeep to Canacona. PW.8 Gurudas also confirmed that both the accused were from his Village. In fact, there was no reason good enough, advanced on behalf of the accused, at any time as to why the version given by PW.8 Gurudas had to be rejected. In fact, PW.8 Gurudas had amply corroborated the versions of the said PW.4 Bernard, the Conductor, as well as PW.2 Shevlo. In fact, there was no reason good enough, advanced on behalf of the accused, at any time as to why the version given by PW.8 Gurudas had to be rejected. In fact, PW.8 Gurudas had amply corroborated the versions of the said PW.4 Bernard, the Conductor, as well as PW.2 Shevlo. The very fact that PW.2 Shevlo appeared before PW.8 Gurudas after about half an hour, was sufficient to infer that PW.2 Shevlo was scared of both the accused and waited for sometime till the accused moved away after they alighted from the said bus. 10. PW.2 Shevlo was then examined at C.H.C. at Canacona by PW.7 Dr. Pra-kash at about 8.30 P.M. on the same day and who found on him three injuries, namely wound on the left ear, another wound on the right ear and injuries to both the eyes. PW.7 Dr. Prakash had produced the certificate of the examination of PW.2 Shevlo at Exhibit PW.7/A and had further opined that the injuries found by him on the person of PW.2 Shevlo could have been caused by slaps and fist blows. PW.7 Dr. Prakash had further confirmed that the said injuries were bleeding. PW.12, PI Mohan Naik had also confirmed that PW. 2 Shevlo had come at the Police Station at about 20.30 hours on 19-3-1997 and had reported that he was assaulted by both the accused and, therefore, he had immediately referred him to the C.H.C. Canacona and, there-after, after going there, he had recorded his detailed complaint and after returning to the Police Station, had registered the crime under No. 20/97 under Sections 504, 325, 427 and 506(II), read with 34 I.P.C. The evidence of the aforesaid three witnesses shows that PW. 2 Shevlo soon after the assault and after getting down from the bus, was immediately taken to the police station and from there to C.H.C. Canacona where the detailed complaint was recorded. 11. 2 Shevlo soon after the assault and after getting down from the bus, was immediately taken to the police station and from there to C.H.C. Canacona where the detailed complaint was recorded. 11. Admittedly, both the accused were cousin brothers of one Geeta Pagi who was the daughter-in-law of the said PW.2 Shevlo and the said PW.2 Shevlo was facing a charge with an allegation that he had killed the said Geeta Pagi and this fact PW.2 had clearly stated in the very FIR lodged by him which was produced at Exhibit PW.2/A. PW.2 Shevlo had further alleged in the said FIR that the motive of assault was the death of the said Geeta Pagi. 12. PW.2 Shevlo, in his evidence before the Court had clearly stated that he was going at about 6.30 p.m. on 19.3.1997 along with his daughter Kiran to the bus stop when he was abused by accused No. 1 Subhash. This part of the incident was sufficiently corroborated by PW.6 Kiran Pagi. PW.2 Shevlo had further stated that after that incident he boarded the KTC bus at the next bus stop and that he was not aware if accused No.1 had got into the said bus at the previous bus stop or not. PW.2 Shevlo stated that he had occupied the third seat behind the driver and while the bus was proceeding, accused No.1 suddenly came from behind and questioned him as to why he had not answered earlier and though he kept quite, accused No. 1 abused him saying “avaizovnacho etc.” and still he kept quite. He further had stated that when the bus reached near the Grampanchayat Office at Kola, accused No. 2 got into the bus and both the accused then without any provocation assaulted him while he was sitting, with slaps on the left side of his face and fist blows all over his body and that due to the assault he fell down on the floor of the KTC bus and in that process his white shirt and the short pant were torn. He further stated that the said accused had threatened all the passengers in the said bus not to make any sound or else they would burn the bus. PW.2 further stated that accused No. 1 Subhash gave a fist blow which landed on his left eye, causing him injury due to his nails. He further stated that the said accused had threatened all the passengers in the said bus not to make any sound or else they would burn the bus. PW.2 further stated that accused No. 1 Subhash gave a fist blow which landed on his left eye, causing him injury due to his nails. He stated that as the people were getting out of the bus, he also got out and he went to the shop one Vassu which was close by the side of the road and thereafter, a jeep came there and the son of the said Vassu requested the said persons in the jeep to reach him, but he requested them to reach him to Canacona Police Station, which they did. He stated that the police referred him to C.H.C. Canacona for medical treatment, where his complaint was recorded by the police and after the Police Officer had attached his torn shirt, he was referred to Hospicio Hospital, Margao where he remained for three days and after that he was referred to G.M.C. Bambolim as his left ear was cut and that he was operated twice for his left eye. He stated that he had remained at Bambolim for one month. 13. Although the prosecution did not examine the Medical Officer who treated PW.2 Shevlo at Hospicio Hospital, Margao for the said three days, the prosecution did examine PW. 13 Dr. Nagvenkar, who had produced the Medical Certificate at Exhibit-48. According to Dr. Nagvenkar, PW.2 was examined by him on 26.3.1997 and was admitted. He stated that PW.2 had come with history of assault which had taken place 8 days prior to it. According to him, PW.2 had a CLW on left pinna which was sutured and he was admitted for treatment of haematoma of left pinna. He stated that PW.2 was discharged on 7.4.1997. 14. As far as the scene of offence is concerned, the Investigating Officer had got a panchanama prepared of the said bus on the next day and in support of the same had examined PW.1 Ghurco and PW.9 ASI Ramesh. PW.1 Ghurco had stated that said KTC bus was parked in front of the Panchayat Office at Khola. PW1 Ghurco had stated that he had seen blood stains on the third seat behind the driver and that there were also blood stains on the entrance door and on the floor of the bus. PW.1 Ghurco had stated that said KTC bus was parked in front of the Panchayat Office at Khola. PW1 Ghurco had stated that he had seen blood stains on the third seat behind the driver and that there were also blood stains on the entrance door and on the floor of the bus. He also stated that the left side backside glass of the KTC bus was seen broken. He stated that the said panchanama was done at about 4.30 p.m. and produced the said panchanama at Ext. PW.1/A. PW.9 ASI Ramesh confirmed the fact of drawing up of the said panchanama at the instructions of the P.I. Shri Naik. 15. The prosecution had also attached the clothes of PW.2 Shevlo, the injured and had examined PW.3 Navnath in support of the panchanama of attachment of the said clothes. PW.2 Navnath had stated that he was called on 19.3.1997 at CHC Canacona by the police to act as a pancha and that there was an old man who was admitted there and who was having a shirt of white colour stained with blood and a pair of shorts of grey colour. He stated that the police had wrapped up the grey colour pant and white colour shirt in their presence and had sealed the same. He identified the said white colour torn shirt with blood stains. However, as already stated, the short pant was not available for identification though the same was otherwise attached by the police and was sent to the Court. It is true that PW.2 Shevlo was also rather confused regarding his short pant whether it was attached or not because it was not shown to him. 16. The main incident of assault was witnessed, according to the case of the prosecution, by PW.4 Bernard and PW.5 Gerald who were the Conductor and the Driver respectively in the said bus. PW.4 Bernard had stated that Gerald was driving the said bus in which he was a Conductor. He had stated that the incident of assault took place at about 6.30 p.m. when the said KTC bus was proceeding from Canacona to Cabo-da-Rama via Agonda. PW.4 Bernard had stated that Gerald was driving the said bus in which he was a Conductor. He had stated that the incident of assault took place at about 6.30 p.m. when the said KTC bus was proceeding from Canacona to Cabo-da-Rama via Agonda. PW.4 Bernard stated that one passenger came inside the bus and started assaulting other passenger who was already sitting on the third seat behind the driver with fist blows on the head and the face and thereafter one more passenger who was already seated in the bus and both of them started assaulting the person who was already seated on the third seat, behind the driver. He identified both the accused as the persons who assaulted the said passenger, sitting on the said third seat. According to PW.4 Bernard, the passenger who was assaulted, was more than 50 years old and due to the fist blows given he had sustained bleeding injuries on the face and on the head. PW.4 Bernard stated that he pleaded with both the accused as well as the other passengers not to fight in the bus, but they did not listen to him. He then asked the driver to stop the bus at Molorem and there he got down and requested the shop owner to come and pacify the accused and the passenger in the bus and to ask them to get down from the bus and thereafter they proceeded with the bus to Caboda Rama. In the cross examination all that he had stated was that he did not know exactly where the injured had got into the bus. 17. PW.5 Gerald also stated that he was working as a driver at the relevant time and on the date of incident, they were supposed to go to Margao from Cancacona via Khanagini by KTC bus No. GDX 143. He stated that he had left Chaudi at about 6.30 p.m. and when they reached at Matti, there was a fight in the bus. He stated that he had left Chaudi at about 6.30 p.m. and when they reached at Matti, there was a fight in the bus. He stated that there was an old passenger in their bus who was seated on the third seat and he was being assaulted by the persons with the help of fist blows on his face, eyes and all other parts of the body, due to which the said old person sustained bleeding injuries on his head and on his face and blood fell on the window glass, on the seat and on his clothes. He identified the accused as the persons who assaulted the said old person. He confirmed that PW.4 Bernard had requested the accused not to fight. He also stated that after the bus reached ahead, PW.4 Bernard requested him to stop the bus and then PW.4 got down from the bus and went to the owner of the shop and requested him to come and pacify the passengers who were fighting and then the owner of the said shop came near the bus and pacified and both the accused and the injured left the spot of the incident and then he proceeded along with the bus to Cabo-da-Rama. In the cross examination, he stated that he had stopped the bus at Mattimol as there was a fight in the bus. He further stated that both the accused and the injured had got down from the bus at Molorem. 18. The learned JMFC has acquitted both the accused of the offences for which they stood charged. It is understandable that the learned JMFC might have acquitted the accused under Sections 504, 427 or for that matter Section 506(II) I.P.C. for lack of corroboration or independent corroboration. However, the story of PW.2 Shevlo regarding the main incident of assault by slaps and fist blows, could not at all have been doubted. This story of PW.2 Shevlo, as already stated, was sufficiently corroborated by the evidence of PW.4 Bernard who was the conductor and PW.5 Gerald who was the driver of the said bus. The learned JMFC proceeded on the assumption that PW.4 Gerald being the driver, could not have looked at the back and seen the assault. In fact, PW.5 Gerald had not only categorically stated that he had seen the assault, but he had also stated that he had stopped the bus. The learned JMFC proceeded on the assumption that PW.4 Gerald being the driver, could not have looked at the back and seen the assault. In fact, PW.5 Gerald had not only categorically stated that he had seen the assault, but he had also stated that he had stopped the bus. The learned JMFC appears to have been under misconception that the threats could be given only when there were weapons in the hands. There was no necessity for the prosecution to have examined the passengers of the bus at all, because the prosecution had examined PW.4 Bernard and PW.5 Gerald who were the conductor and the driver of the said bus, respectively. Cases like passengers being not examined, have been dealt with previously by the Supreme Court and in this context, a reference to the case of Appabhai and anr. v. State of Gujarat3, could be usefully made. The Supreme Court in this case, with reference to the facts of that case, observed that the prosecution was not able to produce any independent witness to the murder that took place at the bus stand and that there must have been several of such witnesses. But the case of the prosecution could not be thrown out or doubted on that count alone. Civilized people are generally intensive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there every-where whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, there-fore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to the probability, if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly...... etc. 19. In a criminal trial it is not the quantity of evidence which counts, but it is the quality. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly...... etc. 19. In a criminal trial it is not the quantity of evidence which counts, but it is the quality. It has been held by the Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat4, that an accused can be convicted on the sole testimony of a witness. It is a well known principle that the evidence of a victim or an injured witness stands on a different footing than the evidence of other witness. An injured witness gene-rally does not have any reason to omit the real culprit and implicate falsely the accused person. The evidence of an injured witness is of great value and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how witness would act or react to a particular incident. His actions depends upon a number of imponderable aspects. It is also well settled principle that in case there is any exaggeration in his evidence, then that exaggeration is to be discarded but not his entire evidence. While appreciating the evidence of an interested witness, the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo-type investigation. It is to be remembered that there is a tendency even amongst the truthful witnesses also to back up a good case by a false or exaggerated version and in such a situation, the only course open for the Court is to discard the exaggerated version, but not to discard the entire version and in case a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only, unless it goes to the root of the matter so as to demolish the entire prosecution case. In my opinion, the version of PW. 2 Shevlo should not have been rejected entirely only because he had spoken of kicks being given by the accused which fact was, otherwise, not corroborated by PW.4 or for that matter, PW.5 Gerald. In my opinion, the version of PW. 2 Shevlo should not have been rejected entirely only because he had spoken of kicks being given by the accused which fact was, otherwise, not corroborated by PW.4 or for that matter, PW.5 Gerald. The version of PW2 Shevlo was substantially and materially corro-borated not only by the versions of PW.4 Bernard and PW.5 Gerald, but also by, PW.8 Gurudas, as well as PW.2 PI Mohan-das Naik, as well as PW.7 Dr. Prakash as far as main story of assault by slaps and fist blows by the accused was concerned. The observations of the learned JMFC on the face of the said evidence that PW.2 filed a false complaint against the accused was, nothing, but adding salt to the injury. It would have been a different matter that the learned JMFC had given a benefit of doubt to the accused for some reason or the other. In my opinion, and as already stated the prosecution had proved its case of assault by both the accused by slaps and fist blows upon PW.2 Shevlo beyond reasonable doubt. 20. It has been contended on behalf of the accused by Ms. Collasso, the learned Advocate of the accused, that the accused cannot be convicted under Section 325 IPC. In my opinion, the accused cannot be convicted under Section 325 IPC for the reasons more than one. First, the charge against the accused was converted from Section 324 read with 34 IPC to Section 325 read with 34 IPC at the stage of arguments. But, it appears that after the charge was altered, no opportunity was given to the accused to cross examine the witnesses of the prosecution. That was absolutely necessary. Section 217 of the Code of Criminal Procedure, 1973 provides that whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon, and examine with reference to such alteration or addition, any witnesses who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused as the case may be, desires to recall or re-examine such witnesses for the purpose of vexation or delay or for defeating the ends of justice. It is obvious that no opportunity was given to the accused to cross examine further the witness of the prosecution after the said charge was altered. Secondly, PW.2 Shevlo had himself not stated that he lost his eyesight because of the assault by the accused on his left eye. PW. 11 Dr. Moraes operated PW. 2 Shevlo only on 30.8.1998 i.e. much more than one year after the assault on 19.3.1997. Dr. Moraes had also not opined whether the traumatic cataract was the direct result of the assault on PW.2 on 19.3.1997. The benefit of this situation, therefore, would certainly go in favour of the accused, apart from the fact that the learned JMFC also observed that the prosecution has not led any medical evidence regarding the treatment given to PW2 while he was admitted in the Hospicio Hospital at Margao where he was referred by PW7 Dr. Prakash. 21. Section 320 IPC defines grievous hurt. The following are designated as grievous hurts: First................................................... Secondly.- Permanent privation of the sight of either eye. Thirdly................................................ Fourthly.............................................. Fifthly................................................. Sixthly................................................ Seventhly............................................ Eighthly. Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. Section 325 IPC provides for punishment for voluntarily causing grievous hurt. It states that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 22. Although PW. 2 Shevlo had stated that he remained in GMC for one month, there is no evidence either from PW 7 Dr. Prakash or from PW. 13 Dr. Vinay or for that matter PW.11 Dr. Moraes to show that the injury to the left eye of PW.2 had endangered his life or that he had suffered bodily pains for a space of 20 days or on account of the same, he was unable to follow the ordinary pursuits. In the absence of such evidence, the accused could not be convicted under Section 325 IPC. The learned Advocate Mrs. Collasso has also brought to my notice the circumstance of PW.2 losing his eye-sight was not put to the accused while recording their 313 statements, and, it is rightly so. In the absence of such evidence, the accused could not be convicted under Section 325 IPC. The learned Advocate Mrs. Collasso has also brought to my notice the circumstance of PW.2 losing his eye-sight was not put to the accused while recording their 313 statements, and, it is rightly so. Reliance has also been placed on the case of Rauta Bodra and anr. v. State of Bihar5. In this case, the Supreme Court observed that though the findings of the trial Court and the High Court were based on proper appreciation of evidence, that they were unable to sustain the conviction of the appellant in view of the great error committed by the trial Court in that while examining the appellant under Section 313 Cr. P.C., it did not ask them to explain any of the circumstance appearing in evidence against them. The Supreme Court fur-ther observed that what would be the effect of such non-compliance was considered by that Court in a Three Judge Bench Decision in the case of Sharad Birdhichand Sarda v. State of Maharashtra6, and it was held, following the earlier decision, that the circumstances which are not put to the accused in an examination under Section 313 Cr.P.C., must be completely excluded from consideration because he did not have any choice to explain them. From whichever angle the matter is looked at, it is not possible to record a conviction against the accused under Section 325 Cr. P.C. 23. The next aspect of the case which was argued on behalf of the accused is that both the accused did not share common intention whilst assaulting PW.2 Shevlo. It was submitted that both the accused got into the bus at different stops and they had no premeditation suggesting that they acted with common intention. It was submitted that intention even if it is same or similar at times, the same cannot be equated to a common intention which was essential to convict both of them with the aid of Section 34 IPC. On the other hand, on behalf of the prosecution it was argued that both the accused were related to one another and were cousins of the said daughter-in-law of PW 2 Shevlo and when both of them saw PW 2 Shevlo in the bus, both acted in concert and started assaulting PW2. On the other hand, on behalf of the prosecution it was argued that both the accused were related to one another and were cousins of the said daughter-in-law of PW 2 Shevlo and when both of them saw PW 2 Shevlo in the bus, both acted in concert and started assaulting PW2. It is well settled that a common intention can develop even at the spur of moment. It is essentially state of mind which has to be gathered by inference from facts and circumstances proved in a given case. In my opinion, when both the accused started their assault on PW. 2 with slaps and fist blows, the inference which would follow from the said facts was that they shared their common intention to assault him on account of the grudge which they had against PW. 2 on account of the said murder of the said Geeta. 24. For the reasons stated herein-above, the judgment and order acquitting the accused has got to be set aside, as perverse and erroneous. Both the accused, therefore are, hereby, convicted under Section 323 read with 34 IPC. The accused to appear before this Court on 5th August, 2004 at 10.30, to be heard on the point of sentence. N.A. Britto, J. ssm. Date : August 05, 2004. 25. The accused have been heard on the point of sentence. Both the accused contend that they are poor. On their behalf, an application has been filed submitting that both the accused be released under Section 3 of the Probation of Offenders Act, 1958. 26. In the said application filed on behalf of the said accused, it has been stated that both are youngsters and at the time of incident were employed in the occupation of fishing; that they do not have any previous conviction and have never been involved in any offence and since the alleged incident, they have also not indulged in any nefarious activity either in relation to the said Complainant or any other person. 27. On behalf of the Complainant, it has been submitted that the accused deserve a proportionate sentence with the crime committed by them and that this Court ought not to lose sight of the fact that the said Complainant in the said incident lost his sight of one eye. 28. Mr. 27. On behalf of the Complainant, it has been submitted that the accused deserve a proportionate sentence with the crime committed by them and that this Court ought not to lose sight of the fact that the said Complainant in the said incident lost his sight of one eye. 28. Mr. S.N. Sardessai, learned Public Prosecutor on behalf of the State has referred to the case of State v. Raju7, and has submitted that the facts of the case at hand do not call for invoking the provisions of Sections 3 or 4 of the Probation of Offenders Act, 1958. On facts, the case of State v. Raju (supra) is quite distinguishable. In that case, the accused had entered the field of the Complainant at night and that they were in the process of committing theft of his tomato crop, which was considered to be an aggravating circumstance. 29. The learned Public Prosecutor has next submitted, relying on the case of Mangilal v. State of M.P.8  that this is a fit case at least to award sufficient compensation to the said Complainant. In this case, the Supreme Court has observed that Sub-section (1) of Section 357 deals with a situation when a Court imposes a fine or a sentence (including sentence of death) of which fine also forms a part. It confers a discretion on the Court to order as to how the whole or any part of the fine recovered is to be applied. The Supreme Court has further held that if no fine is imposed, Sub-Section (1) of Section 357 has no application. The Supreme Court further observed that Sub-Section (3), on the other hand, deals with the situation where fine does not form part of the sentence imposed by a Court. In such a case, the Court when passing a judgment can order the accused persons to pay by way of compensation such amount as may be specified in the order to the person who has suffered a loss or injury by reason of the act of which the accused person has been so convicted and sentenced. The basic difference between Sub-Sections (1) and (3) is that in the former case, the imposition of fine is the basic and essential requirement, while in the latter even the absence thereof empowers the Court to direct payment of compensation. The basic difference between Sub-Sections (1) and (3) is that in the former case, the imposition of fine is the basic and essential requirement, while in the latter even the absence thereof empowers the Court to direct payment of compensation. Such power is available to be exercised by an appellate Court or by the High Court or Court of Sessions when exercising revisional powers. Sub-Section (5) has provisional powers. 30. Admittedly, at the time of commission of the offence, accused No. 1 Subhash was about 23 years of age and accused No. 2 Chandras @ Mono Pagi was 25 years of age. Admittedly also no previous conviction has been proved against them nor they have been shown to be of bad character. The accused, probably, had some sort of animosity against the said Complainant and for that reason, they acted in the manner they did, but their actions cannot be justified on that count. 31. Considering the background, the facts of the case, and the age of the accused, this should be a fit case to release both the accused on admonition under Section 3 of the Probation of Offenders Act, 1958 but not without invoking the power under Section 5 of the said Act. Both the Accused, therefore, are hereby directed to pay to the said Complainant compensation of Rs. 1,000/- each under Section 5(1)(a) of the said Act. The said compensation, if not paid, before the learned Judicial Magistrate, First Class, Canacona, within a period of fifteen days, the same shall be recovered as contemplated under Sub-Section (2) of Section 5 of the Act. The said compensation, if paid or recovered, shall be paid to the said injured PW 2 Shevlo Pagi. Appeal allowed partly. 1. AIR 2003 SC 185 . 2. 2003 Cri.L.J.SC 1282. 3. AIR 1988 SC 696 . 4. AIR 1983 SC 753 . 5.1999 SCC (Cri) 1319. 6. 19843 (4) SCC 116. 7. (2004) Cr.L.J. 980. 8. (2004) 2 SCC 447 .