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2014 DIGILAW 269 (KER)

Vijayan v. State of Kerala

2014-03-21

N.K.BALAKRISHNAN

body2014
ORDER Mr. N.K. Balakrishnan, J. This revision petition is directed against the concurrent verdict of conviction entered against the petitioner for offences punishable under Sections 447,323 and 354 of IPC. He was sentenced to undergo simple imprisonment for one month for the offence under Section 447, and simple imprisonment for one month for the offence under Section 323 and to pay Rs. 2,000/- for the offence under Section 354 of IPC. The Appellate Court after a reappraisal of the evidence concurred with the verdict of conviction, but modified the sentence. 2. The Appellate Court sentenced the accused to pay a fine of Rs. 1,000/- for the offence under Section 323 IPC, Rs. 2,000/- for the offence under Section 354 and simple imprisonment for seven days for the offence under Section 447 of IPC. 3. The allegation is that on 21/09/2006, the accused approached the de facto complainant while she was cooking and made a request to have sexual intercourse with him. The wife of the accused was told about the same. The accused thus got infuriated. He again went to the courtyard of the complainant at 12.30 noon while she was washing her clothes. He caught hold of her and slapped on her left cheek and also pressed his knee at her abdomen. There is only the evidence of PW 1 the complainant but to some extent it gets corroboration from the factors noted in the wound certificate - Ext. P2. 4. The Trial Court accepted the evidence given by PW 1, convicted and sentenced the accused as mentioned above. Since in the peculiar circumstances of the case there was no possibility of any other person witnessing the incident and since it was found that the evidence given by PW 1 does not suffer from any infirmity her evidence was accepted by the Appellate Court. 5. The learned counsel for the revision petitioner has argued at length that in the absence of any independent evidence the Courts below were not justified in acting upon the uncorroborated testimony of PW 1. 6. The learned Magistrate had the opportunity to watch the demeanour of PW 1 and assess the evidence properly. The Appellate Court has rightly concurred with the view taken by the Trial Court. 6. The learned Magistrate had the opportunity to watch the demeanour of PW 1 and assess the evidence properly. The Appellate Court has rightly concurred with the view taken by the Trial Court. I have gone through the judgments and depositions of PW 1.I find no reason to differ from the view taken regarding the finding of guilt entered by the Courts below. The conviction is thus confirmed. 7. It is submitted by the learned counsel for the Revision Petitioner that at this distance of time the jail sentence awarded to the petitioner may be avoided and instead, if at all, the Court may direct compensation to be paid to the de facto complainant. 8. There is anomaly in the sentence passed by the Court below. Section 447 IPC is punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees, or with both. Section 323 is punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. 9. Section 354 IPC is graver in nature when compared to Section 447 and 323 IPC. The punishment prescribed for that offence is imprisonment for a term which may extend to two years, or with fine, or with both. The fine that can be awarded is not limited. It is seen that while modifying the sentence the learned Appellate Judge passed a sentence of fine of Rs. 1,000/- for the offence under Section 323 and Rs.2000/- for the offence under Section 354 whereas imprisonment for seven days was awarded for a lesser offence punishable under I Section 447 IPC. Section 354 IPC is punishable with imprisonment for a term which may extend to 2 years. The learned Magistrate ought to have stated reasons for not imposing a sentence of imprisonment in view of Section 354(4) CrPC. That apart, when the learned Magistrate chose to sentence the petitioner for the offence under Section 447 IPC with imprisonment for a term of 7 days it would appear improper to award only a fine of Rs.2000/- for the offence under Section 354 IPC and Rs.1000/-for the offence under Section 323 IPC. That shows the Appellate Judge did not apply the mind properly. That shows the Appellate Judge did not apply the mind properly. As complainant/State did not challenge the sentence awarded by the Courts below, this Court cannot now alter the sentence passed against the petitioner for the offences under Sections 323 and 354 IPC. As such, the only way to award compensation to the complainant is to modify the sentence passed by the Appellate Court for offence under Section 447 IPC. 10. A doubt was expressed by the learned counsel as to whether compensations can be awarded when fine has been imposed for the two other offences, Sections 323; IPC and 354 IPC. The sentence must commensurate with the gravity of the crime. The sentences modified by the Appellate Court is not in tune with the nature or gravity of the offence Proportionality is not seen maintained. 11. There should be conviction for each of the offences with which the accused is found guilty. When there is a conviction it must be followed by a sentence. In other words on each count there should be a conviction and a sentence. Section 357(3) CrPC reads: "When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such , amount as may be specified in the order to the person who has suffered and loss or injury by reason of the act for which the accused person has been so sentenced". The word "a sentence" in Section 357(3) of the Code has got significance. "A sentence must denote the sentence imposed for that particular offence and not on the accused for the offences for which he was convicted. As said earlier, for each conviction there should be "a sentence". If the Court imposes a fine for the offence under Section 447 IPC then the Court cannot in addition award compensation as part of the sentence for the offence under Section 447 IPC. Of course, from out of the fine amount compensation can be directed: be paid. If on the other hand, it is interpreted that if fine forms part of a sentence in respect of any of the offences, no compensation can be awarded to the aggrieved party, under Section 357(3) CrPC for other offences with which he is convicted. That would defeat the very object of Section 357(3) of CrPC. If on the other hand, it is interpreted that if fine forms part of a sentence in respect of any of the offences, no compensation can be awarded to the aggrieved party, under Section 357(3) CrPC for other offences with which he is convicted. That would defeat the very object of Section 357(3) of CrPC. There may be a case where one of the offence for which the accused was convicted is a petty offence for which fine alone is the punishment prescribed. Such an offence may be either under the Indian Penal Code or may be under other special Statute which offence also can be tried along with offences under the IPC The interpretation that whenever a fine is imposed on the accused by the Court for committing one or more offences, no compensation can be awarded for another grave offence which he was convicted in the very same trial is unacceptable. If it is accepted, it would lead to a situation where no compensation can be awarded to the victim/aggrieved party only for the reason that fine was imposed for a petty offence which was charged along with other major offences. That is not the intention of the Legislature. It only means that if the Court imposes a sentence of fine for a particular offence, which may be one of the Sections of offence for which verdict of conviction is entered, then compensation cannot be awarded for the commission of that offence in view of Section 357(3) CrPC. Therefore, though fine was imposed on the accused for offences under Section 323 and 354 IPC, it does not preclude the Court from awarding compensation to the complainant/victim for the offence under Section 447 IPC. Therefore, while maintaining the sentence awarded for the offences under Sections 323 and 354 IPC I find that the sentence awarded for the offence under Section 447 IPC is modified directing the petitioner to undergo imprisonment till the rising of the Court and to pay Rs.5,000/- as compensation to the victim-PW 1. In default of payment of that amount the petitioner will undergo simple imprisonment for 6 days.