B.C. Varma, J.
1. The judgment in this appeal shall also govern the disposal of Criminal Appeal No. 920 of 1982 (The State of Madhya Pradesh v. Ganga Singh and Ors. and Criminal Revision No. 458 of 1982 (Narayan Singh v. Ganga Singh and Ors.).
2. Facts leading to this appeal in short are that Narayan Singh (P.W. 1) with his mother Jijibai (P.W. 2) had gone to see Ramlila at night on 18-4-1975. His father Dalsingh (P.W. 4) was also away from the house. Bhagwat Singh, brother of respondent Ganga Singh, taking advantage of their absence attempted to molest Narayan Singh's sister Shanta Bai (P.W. 6). Accidently, Narayan Singh accompanied by Sugarlal (P.W. 3) returned and finding Bhagwat Singh molesting Shanta Bai (P.W. 6) hit him with a Jharia. People gathered and Bhagwat Singh escaped. Bhagwat Singh himself lodged the report of being beaten by Narayan Singh. He was, however, prosecuted for offences punishable Under Section 354 and was convicted. He was alsq made an accused in this case but died during the trial. This is one incident.
3. The other incident related to the assault on Narayan Singh (P.W. 1). It appears that someone conveyed to Ganga Singh that his brother Bhagwat Singh was beaten. Ganga Singh, members of his family and other associates came to the house of Narayan Singh, dragged him out of the varandah and ultimately took him to the house of Bhagwat Singh. He was. tied against a pole by a rope and then Ganga Singh first caused burn injuries on the face of Narayan Singh by a burning cigarette. Later he attempted to throw acid on his face and to shoot him but was prevented. He, however, brought an axe and then very brutally chopped off both palms of Narayan Singh in bits. Narayan Singh was later released and was carried home. There he narrated the incident to his mother, Jijibai (P.W. 2) who had come back home by that time. First aid was given to Narayan Singh and then he and his mother, Jijibai (P.W. 2) went to the Police Station that very night and lodged the report, Ex. P-l. It was recorded at 4.15 A.M. on 19-4-1975. The report was signed by Jijibai (P.W. 2). Narayan Singh was then sent to the hospital where he was treated by Dr. Hariom (P.W. 11). The axe was seized. Blood smeared earth was also seized from Bhagwat Singh's house. The articles seized were sent to Chemical Examiner, Sagar and Serologist Calcutta and human blood was affirmed on them including the handle of the axe. After due formalities as many as 18 persons including Ganga Singh, his brother Bhagwat Singh and Raghuraj Singh were prosecuted. Bhagwat Singh and Raghuraj Singh died during the pendency of trial.
4. Although the defence pleaded alibi, the learned Magistrate who tried the respondents negatived that plea and held some of them liable. Gangasingh, Indersingh, Hakam Singh, Amol Singh, Hakam Singh, Lakhanlal, Surendra Singh, Munna alias Vishwanath Singh and Laxman Singh have been held liable Under Section 147, I.P.C. They have also been made liable Under Section 342, 1.P.C. Ganga Singh has further been held guilty Under Section 326, I.P.C. All other accused have been acquitted.
5. After giving a hearing on the question of sentence, the learned Magistrate convicted and sentenced Ganga Singh for offence Under Section 147, I.P.C. for a period of one month's rigorous imprisonment and to pay a fine of Rs. 1,000/-(Rs. One thousand) and in default of payment of fine Ganga Singh has to suffer rigorous imprisonment for four months on that count. For offence Under Section 342,1.P.C. Ganga Singh has been sentenced to undergo 15 days rigorous imprisonment and to pay a fine of Rs. 500/- (Rs. Five hundred) and in default of payment of fine to suffer rigorous imprisonment for two months. The other convicted accused i.e. Inder Singh, Hakam Singh, Amol Singh, Lakhanlal, Laxman Singh,Surendra Singh and Munna alias Vishwanath Singh have been sentenced to pay a fine of Rs. 800/- (Rs. Eight hundred) each, for offence Under Section 147, I.P.C. or in default of payment of fine to suffer imprisonment for three months. Each of them has also been sentenced to pay a fine of Rs. 200/- (Rs. Two hundred) for offence Under Section 342,1.P.C. and in default of payment of that fine to suffer rigorous imprisonment for one month. Ganga Singh has been sentenced to a period of 71 days rigorous imprisonment for offence Under Section 326, I.P.C. In addition he has been asked to pay a fine of Rs. 5,000/- (Rs. Five thousand) or in default to suffer rigorous imprisonment for nine months, out of the fine so collected a sum of Rs. 5,000/- has been directed to be paid to Narayan Singh.
6. Those convicted and sentenced have not appealed. The State has filed an appeal (Cr. Appeal No. 919/82) against the acquittal of the respondents against various charges. Criminal Appeal No. 920 of 1982 has been filed for enhancing of the sentences awarded to the convicted accused on various counts. Criminal Revision No. 458 of 1982 has been filed by the complainant against the acquittal of the respondents.
7. Narayan Singh (P.W. 1) is the victim. He has deposed in Court the entire story. He did not hesitate to state that on seeing his sister molested by Bhagwat Singh, he beat Bhagwat Singh by a Jharia. He then deposed the Ganga Singh and his associates came there, dragged him out of the house and then took him to the house of Bhagwat Singh. He has named the accused who had been convicted. Those convicted have also been named in the first information report. Their presence at the house of Narayan Singh is duly established not only by him but also by his mother Jijibai (P.W. 2) and other witnesses. Narayan Singh has been corroborated by Sugarlal (P.W. 3) on all that happened at the house of Bhagwat Singh. There Ganga Singh chopped off his palms and fingers with an axe. Jijibai (P.W. 2) has established the presence of the convicted accused. The version of these two witnesses inspires confidence. They seem to be deposing all the truth because they stated that when Ganga Singh proposed to throw acid on Narayan Singh's face and then to shoot him, accused ''Kbrnal Singh and Umeshkumar expressed resentment, opposed Ganga Singh's action and even tried to save Narayan Singh. Further after his release Narayan Singh was taken back to his house by the accused and then Narayan Singh immediately told his mother about the assault on him. His version is further corroborated by a promtly lodged first information report and the medical evidence. We thus find that there is sufficient material on record to uphold the conviction.
8. We, however, find no substance in the appeal filed by the State against the acquittal of the accused on various charges. It has been rightly found that there is no evidence of any trespass into the house. Names of the accused who have been completely exonerated are missing in the first information report which was lodged by the victim himself. Jijibai (P.W. 2), the mother of Narayan Singh (P.W. 1) had accompanied him. In Court Narayan Singh (P.W. 1) instead of implicating accused Komal Singh and Umeshkumar deposed that they tried to persuade Ganga Singh not to assault. Accused Tulsi has also been completely exonerated by Narayan Singh (P.W. 1) as no overt act has been attributed to him. The lower Court, therefore, cannot be said to be in error in completely exonerating such accused persons. All have also been rightly acquitted of the charge Under Section 452 oftheI.P.C.
9. Learned Govt. Advocate urged that the convicted accused must also be held guilty of offence punishable Under Section 326 of the I.P.C. with the aid of Section 149, I.P.C. for having common object to assault. We do not agree. The evidence that accused Ganga Singh first proposed to throw the acid on the face of Narayan Singh (P.W. 1), then to shoot him by a gun and ultimately used an axe to assault, Narayan Singh (P.W. 1). As Narayan Singh (P.W. 1) was tied with a rope and as Ganga Singh was close to him, the others had to remain standing as helpless on-lookers. We also have the evidence that few of them even tried to avert the untoward incident. Under these circumstances, the lower Court cannot be said to be unjustified in reaching a conclusion that no other can be made vicariously liable for the act of Ganga Singh in giving axe blows to Narayan Singh (P.W. 1).
10. Here we may mention that while the appellate Court hearing an appeal against the judgment of acquittal although has full powers to review and reappreciate the evidence adduced, it shall be slow to interfere with the judgment of acquittal which reinforces the innocence of the accused. If the acquittal is based on view of the evidence which is reasonable and even if sitting so original Court it were possible to take a different view, then too, the judgment of acquittal has to be upheld. That being so, we do not find any reason to interfere with the judgment of acquittal which according tons, is based on sound reasons. Consequently, Cr. Appeal 919/82 must fail. Precisely, for this reason, the Criminal Revision No. 458/82 also must be dismissed.
11. This now takes us to Criminal Appeal No. 920/82 in which a prayer has been made for enhancement of the sentence. We may mention that lower Court has given some reasons for taking a rather lenient view of the matter. The main consideration has been that the accused had suffered a trial for number of years and had for sometime been in jail also. It appears that the learned Magistrate did not, therefore, think it proper to send the accused back to jail again and to suffer imprisonment. Instead, he has chosen to impose some fine making a part of it payable to the injured Narayan Singh. After hearing the learned Govt. Adv. and Shri Datt, counsel who appeared for the respondents, we are of the opinion that the sentence awarded in the circumstances of the case is too inadequate to sound just and proper and is too insufficient to meet the ends of justice.
12. The classical principles of sentencing may be surnmed up in these four words: retribution, deterrence, prevention and rehabilitation. A Judge while considering the award of sentence must bear these principles in mind and should see with reference to the facts of that particular case as to which of them has greatest impprtance in the case. Punishment may be justified on the footing that the offender and law abiding should know that the threats of the law will be carried out and that those who unfairly take advantage of the self-restraint of the others cannot do so with impunity. The quantum of punishment should be such as deserved for the offence, no more no less. However, rehabilitative considerations may be allowed to reduce a sentence or to avoid a punitive sentence altogether (as in the case of probation). This may be so when the offence is not serious to require a punitive sentence. The gravity of the offence which certainly includes the wickedness and a reference to the amount of harm done by the offender intentionally or negligently is a factor that may also weigh in determining the extent of punishment. It also denotes at times a social rather than moral significance and also includes alarm caused by particular category of offence. Sir Rupert Cross (in English sentencing system, Third Edition at page 191) has observed:
The assumption that the object of the sentencing system is to promote the reduction of crime by making as many people as possible want to obey the criminal law requires, not only that there should be punishment according to desert (a result achieved with a fair degree of success by the system of punishment according to gravity), but also that the system should be administered with as little appearance of injustice and as mercifully as possible. So far as the criminal himself is concerned, punishment has less chance of benefiting him if he labours under a sense of injustice; so far as the public is concerned, respect for the criminal law will diminish if it is thought to be unjustly or mercilessly administered.
We may also quote Salmond to say 'The purpose of punishment is protection of society by deterring potential offenders, by preventing the actual offender from committing further offence and by reforming and turning him into a law-abiding citizen.' (Salmonds Jurisprudence, 12th edition, p. 94).
13. Section 248(2) of the Cr.P.C. gives an opportunity to both the parties i.e. the accused and the prosecution to bring to the notice of the Court circumstances which may determine the quantum of sentence to be awarded to the accused. Krishna Iyer, J. in Mohammad Giasuddin v. State of Andhra Pradesh : 1977CriLJ1557 pointed out that the State has to rehabilitate rather thdn avenge. The subculture that leads to anti-social behaviour has to be countered not by undue cruelly but by reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. Learned Judge laid emphasis that 'in terrorem' should yield to therapeutic outlook in all Criminal Courts. The same Judge in later decision in Ashok Kumar v. State (Delhi Administration) : 1980CriLJ444 while dealing with the question of sentence to be awarded to a student offender, aged 19 years, for stealing scooter described the sentencing as the cutting edge of the judicial process and emphasized need to consider the totality of factors bearing on the offence and the offender and to fix a punishment which will promote effectively the punitive objective of the law-deterrence and habilitation.
14. One of the six modes of punishment to which an offender is liable under the provisions of our Penal Code is imposition of fine, which indeed, is forfeiture of money by way of penalty. Only in few cases, not involving heinous crimes, limit has been fixed. The Code contains four groups of offences where fine is imposed as the sentence. They are : (1) Offences in which fine is the sole punishment and its amount is limited, (2) Offences in which fine is an alternative punishment but its amount is limited, (3) Offences in which it is an additional imperative punishment but its amount limited and (4) Cases in which it is both one imperative punishment and its amount is unlimited. One of the groups to justify fine as the additional penalty is desirability to compensate the complainant in a given case. 'Payment of fine brings home the sense for responsibility in a surer fashion than even short terms of imprisonment in some cases.' (Krishna Iyer, J. in Ashok Kumar's case (supra)). The gravity of offence is as much a determining factor in fixing the amount of fine as it is in fixing the length of a prison sentence. The Courts, however, cannot disregard the profit derived from the offence while fixing the amount of fine to be imposed on the offender. The Courts, however, are cautioned to guard themselves against the use of fines as punishment to give persons of means an opportunity of buying themselves out of being sent to prison. Article 702 of the 'American Law Institute's Model Penal Code is entitled Criteria for Imposing Fines' and reads as follows: -
(1) The Court shall not sentence a defendant only to pay a fine, when any other disposition is authorised by law, unless having regard to the nature and circumstances of the crime and to the history and character of the defendant, it is of the opinion that the fine alone suffices for protection of the public.
(2) The Court shall not sentence a defendant to pay a fine in addition to a sentence of imprisonment or probation unless:
(a) the defendant has derived a pecuniary gain from the crime or
(b) the Court is of opinion that a fine is Specially adapted to deterrence of the crime involved or to the correction of the offender.
(3) The Court shall not sentence a defendant to pay a fine unless:
(a) the defendant is or will be able to pay the fine; and
(b) the fine will not prevent the defendant from making restitution or reparation to the victim of the crime.
(4) In determining the amount and method of payment of a fine, the Court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.
This may afford a guideline while determining imposition of sentence of fine.
15. Now the instant case presents a picture of extreme brutality and lawlessness. The helpless young girl all alone in the house was first molested. The natural resentment by her brother resulted in a mob attack. Brother, Narayan Singh (P.W. 1) was dragged out of the ho'use and then was bodily lifted to the house of the miscreant. He was then completely disabled when he was tied with a rope against a pole. He was then tortured. His face was burnt by a burning cigarette. Ganga Singh first attempted to throw acid on the face and then tried to shoot but was prevented. He then brought an axe and Narayan Singh's palms were cut into pieces bit by bit. Narayan Singh was then dragged to his house and was. left there. This act on behalf of Ganga Singh does not entitle him to any mercy. Instead, in our opinion, Ganga Singh has rendered himself liable to the extreme penalty permissible under the law. In Gurdeep Singh v. State of Rajasthan : AIR1979SC1432 , the accused was found guilty Under Section 326, I.P.C. for maiming both hands of the victim. A sentence of three years' rigorous imprisonment and a fine of Rs. 600/-was held to be just and the Court observed that there was no room for reduction in this sentence. Cases were cited to show that the Courts have taken lenient view in award of sentence (Mohammad Giasuddin v. State of Andhra Pradesh : 1977CriLJ1557 Dilbag Singh v. State of Punjab : 1979CriLJ636 ; Ashok Kumar v. State (Delhi Administration) : 1980CriLJ444 ; Jagdish Chander v. State of Delhi : 1SCR204 and the judgments of this Court in Criminal Revision No. 312 of 1978, decided on 30-3-1982, Cr. Appeal No. 844/78 decided on 30-3-82 and few others. Considerations like tender age of the accused, his dependants and the time during which the trial lay pending and sense of remorse and assurance for future good behaviour are few of such considerations which have weighed with Court in these judgments to impose short term sentences and some fine. Ganga Singh has not brought on record any such circumstances, except some delay in concluding the trial. He is liable to be visited with the maximum penalty which is three years rigorous imprisonment as the case was tried by Magistrate First Class. We also maintain the sentence of fine awarded to him. He shall pay that fine in addition to this sentence of three years' rigorous imprisonment. The sentences awarded to the other convicted accused do not need any modification and are maintained.
16. Thus, Criminal Appeal No.,920 of 1982 partly succeeds. Ganga Singh is sentenced to rigorous imprisonment for three years in place of sentence of 71 days' imprisonment awarded by the Magistrate. In addition, he shall also pay the fine imposed on him by the Magistrate. In the result, Cr. Appeal No. 919/82 and Criminal Revision No. 458/82 failed and are dismissed.
17. Criminal Appeal No. 920 of 1982 succeeds partly as indicated above.