Ravi Malimath, J.The case of the prosecution is that the original house of the complainant is in Kadatoka village, Honnavar taluk, Karwar District. Due to the harassment of his senior uncle-Shivaram Parameshwar Hegde, his father had purchased a land in Mogalkeri and had constructed a house therein. The father of the complainant and brothers, effected a partition of the ancestral agricultural properties. On 09.12.2008 in the morning, the complainant along with Ishwar had visited Kadatoka-Jadigadde for cutting areca nut and when they were in the garden, they heard a loud voice near the house of Shivaram. They went there and found that Shivaram Hegde, Gajanan Hegde and Suhasini Hegde were assaulting Ramachandra Hegde and also abusing Ramachandra in a filthy language and were threatening him. Shivaram Hegde asaulted Ramachandra with a stick on his head. When the complainant and Ishwar tried to pacify the quarrel, Gajanan Hegde tried to assault the complainant on his head with a stick. In the process, the complainant sustained an injury to his right shoulder. Ramachandra sustained an injury on the head and became unconscious. The younger brother of the complainant - Satish, came there and pacified them.

2. On receipt of the complaint, the police registered a case in Crime No. 292 of 2008 for the offences punishable under Sections 307, 326 and 504 read with Section 34 of the Indian Penal Code (the IPC for short). Investigation was taken up. The charge-sheet was filed. The accused pleaded not guilty.

3. On trial, accused No. 3 was acquitted of the offences punishable under Sections 307, 326 and 504 read with Section 34 of IPC. Accused Nos. 1 and 2 were convicted for the offence punishable under Section 326 of IPC. Since the accused was in custody for a period of 10 days, a sentence was imposed for the period of detention already undergone and was directed to pay a fine of Rs. 2,000/- for the offence punishable under Section 326. Accused No. 2 was sentenced to pay a fine of Rs. 4,000/- and was sentenced to undergo simple imprisonment for a day, namely till the rising of the Court.

4. Seeking to set aside the order of acquittal of accused No. 3 and seeking conviction of accused Nos. 1 and 2 for the offences punishable under Sections 307, 326 and 504 read with Section 34 of IPC, the complainant and the injured PW-9 have filed Criminal Appeal No. 2882 of 2012. Seeking enhancement of sentence, the State has filed Criminal Appeal No. 2533 of 2013 for the offence punishable under Section 326 read with Section 34 of IPC.

5. Sri. S. B. Naik, learned counsel for the appellants in Criminal Appeal No. 2882 of 2012, contends that the acquittal of accused Nos. 1 to 3 is inappropriate. That the evidence and material on record would clearly indicate that they are guilty of the offences charged against them.

6. On the other hand, Sri. S.R. Hegde, learned counsel for respondent Nos. 1 to 3 defends the same.

7. The prosecution has let in evidence and material to implicate accused No. 3 for the offence alleged against her. The trial Court was of the view that the prosecution has failed to establish its case. That the evidence and material on record do not indicate that accused No. 3 is guilty of the offence alleged against her. None of the evidence leads to the involvement of accused No. 3. That no overt acts have been attributed to accused No. 3 in the commission of the said offence. Therefore, the trial Court has rightly acquitted accused No. 3. The trial Court has considered the evidence let in by the prosecution. We find no error committed by the trial Court in arriving at such a conclusion.

8. The further contention is that the order of acquitting accused Nos. 1 and 2 for the offences punishable under Sections 307 and 504 read with Section 34 of the Indian Penal Code requires to be reversed. That there is substantial material to convict the accused of the said offences. Keeping in mind the injuries sustained, it cannot be said that the order of acquittal is erroneous. The finding of the trial Court is based on evidence and material on record. It cannot be said that the view taken by the trial Court is either perverse or unjust. We find no good ground to take a different view than the one that has been taken by the trial Court. We are aware of the constraints of the Appellate Court in reversing the order of acquittal into one of conviction. No reasons have been assigned as to why the order of acquittal requires to be reversed. Only because a second view is possible, does not entail the Appellate Court to take a different view. Therefore, the prayer of the appellants seeking conviction of the accused No. 3 for the offences under Sections 307, 326 and 504 read with Section 34 of IPC and for reversing the order of acquittal of the accused Nos. 1 and 2 for the offences punishable under Sections 307 and 504 read with Section 34 of the Indian Penal Code requires to be rejected.

Hence, we find no good ground to interfere with the same. Consequently, Criminal Appeal 2882 of 2012 is dismissed.

9. Criminal Appeal No. 2533 of 2013 is filed by the State seeking enhancement of sentence. The learned Addl.SPP contends that on convicting the accused Nos. 1 and 2 for the offence punishable under Section 326 of the Indian Penal Code, the sentence awarded, is inadequate. That no adequate reasons have been given to justify such a sentence. The sentence awarded was imprisonment for a period of ten days and fine of Rs. 2,000/- with regard to accused No. 1 and simple imprisonment for a day, namely till rising of the Court and fine of Rs. 4,000/- for accused No. 2. Having convicted the accused, the sentence should be just and appropriate. The sentence should be relatable to the conviction of the accused. Therefore, he contends that the sentence be modified by enhancing the same.

No submissions are forthcoming from the learned counsel for the accused so far as enhancement of sentence is concerned.

10. The trial Court convicted accused Nos. 1 and 2 for the offence under Section 326 of IPC. Having done so, in view of the fact that accused No. 1 was in custody for 10 days the said period was ordered as sentence and he was set at liberty. Accused No. 2 was sentenced to undergo imprisonment for a day, till rising of the Court.

11. The evidence would indicate that the first accused assaulted PW.9 on his head with a stick and when PW-9 cried for help PW-5 arrived at the spot along with others and tried to rescue him. Second accused gave a blow with another stick to PW-5.

12. We have considered Ex.P-6-the wound certificate pertaining to PW-5 who has sustained injuries as follows:

i) Fracture clavicle on right side.

ii) Lacerated wound-right temporal region x cm.

We have also considered Ex.P-11-wound certificate pertaining to CW-13 who has sustained injuries as follows:

i) B/L Black eye pressed,

ii) 4 cm long sutured wound over right front parietal skull,

iii) Right frontal bone depressed fracture.

13. Having considered the sentence awarded by the trial Court, we are unable to accept the same. The trial Court has found accused Nos. 1 and 2 guilty of the offence punishable under Section 326 of IPC and convicted them for the said offence. The punishment as contemplated under Section 326 is imprisonment for a term which may extend to 10 years and shall also be liable to fine. A sentence for a day till the rising of the Court is injustice. It is akin to adding insult to injury to the victim. Justice should not only be done, but should also appear to be done. It has not happened. There is no justice. Even though the trial court is entitled to award a sentence within the limits as prescribed in the relevant Section, adequate and acceptable reasons have to be assigned to sustain such a sentence. We are of the view that there are no adequate reasons as to why such a trivial sentence was imposed. Merely to say that on a careful perusal of the material, it is sufficient to sentence the accused for a period of ten days and 1 day respectively, is wholly unacceptable. The sentence that is imposed on the accused should be meaningful. It should be relatable to the offence for which he is convicted. Otherwise, sentencing would be meaningless. It would amount to a flea bite sentence.

14. The criminal justice system is not only for the accused but also for the victim and society. Various measures have been enunciated by the Court with regard to the same. The award of a sentence, dilutes or satisfies the right of the victim. The victim and the accused should always be satisfied that justice has been rendered.

15. The Honble Supreme Court in the judgment reported in (2014) 7 Supreme Court Cases 323 [LQ/SC/2014/526] (AIR 2014 SC 2840 [LQ/SC/2014/526] , paras 19 to 30 & 32) (Sumer Singh v. Surajbhan Singh and others) relied on a series of decisions on the question of sentencing. It held therein as follows:

23. In Sevaka Perumal v. State of T.N. (AIR 1991 SC 1463 [LQ/SC/1991/280] ), after referring to the decision in Mahesh v. State of M.P. (AIR 1987 SC 1346 [LQ/SC/1987/331] ), the Court observed that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. The Court further observed that if the courts do not protect the injured, the injured would then resort to private vengeance and, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.

24. In State of M.P. v. Saleem (AIR 2005 SC 3996 [LQ/SC/2005/681] ), the Court opined that the object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. It further ruled that it is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.

25. In Ravji v. State of Rajasthan (AIR 1996 SC 787 [LQ/SC/1995/1262] ) the Court while giving emphasis on relevance of imposition of adequate sentencing in the social context observed thus: (SCC p. 187, para 24) : (P. 794. Para 25).

"24. ... The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the societys cry for justice against the criminal". In our view, if for such heinous crimes the most deterrent punishment for wanton and brutal murders is not given, the case of deterrent punishment will lose its relevance."

26. In State of Karnataka v. Krishnappa (AIR 2000 SC 1470 [LQ/SC/2000/601] ), a three-Judge Bench, while discussing about the purpose of imposition of adequate sentence, opined that: (SCC P. 83, para 18) : (P. 1475, Para 17)

"18. ... Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

27. In Jameel v. State of U.P. (AIR 2010 SC (Supp) 303), the trial Court had convicted the appellant therein under Section 308 IPC along with another and punished them with two years-rigorous imprisonment. In appeal, the conviction and sentence of the appellant were affirmed. By the time the matter came to be considered by this Court, the appellant had already undergone eight months in custody. While reducing the sentence, the Court observed as under (SCC P. 535, paras 15-16) : (PP. 305-306, paras 11 & 12).

"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.

16. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

28. In Shyam Narain v. State (NCT of Delhi) (AIR 2013 SC 2209 [LQ/SC/2013/587] ), it has been ruled that: (SCC P.84, para 14) : (P. 2213, Para 11)

"14. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent."

The Court observed:(SCC pp.84-85, para 14)

"14. ... True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view."

It has been further opined that: (SCC p.85, para 14)

"14. ... while carrying our this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim."

29. In Guru Basavaraj v. State of Karnataka (2012 AIR SCW 4822), the Court, discussing about the sentencing policy, had to say this (SCC pp.744-45, para 33) : (pp. 4830-4831, Para 29).

"33. There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the Court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored."

30. In Rattiram v. State of M.P. (AIR 2012 SC 1485 [LQ/SC/2012/187] ) though in a different context, it has stated that: (SCC p.542, para 64) : (p. 1501, para 50)

"64. ... The criminal jurisprudence, with the passage of time, had laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. ... it is the duty of the Court to see that the victims right is protected."

31. In State of M.P. v. Najab Khan (AIR 2013 SC 2997 [LQ/SC/2013/647] ), the State had preferred an appeal as the High Court, while maintaining the conviction under Section 326, IPC read with Section 34, IPC, had reduced the sentence to the period already undergone i.e., 14 days. In that context, the Court, after referring to number of authorities and reiterating the principles, stated that: (SCC p.515, para 16) : (p. 2999, para 9).

"16. ... in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration."

It was further observed that undue sympathy in imposing inadequate sentence would do more harm to the justice dispensation system and undermine the public confidence in the efficacy of law. It is the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. After so stating the sentence imposed by the High Court was set aside and that of the trial Judge, whereby he had convicted the accused to suffer rigorous imprisonment for three years, was restored. Similar principle has been assertively reiterated in Hazara Singh v. Raj Kumar (AIR 2013 SC 3273 [LQ/SC/2013/452] ).

32. xxxxxxxx

33. It is seemly to state here that though the question of sentence is a matter of discretion, yet the said discretion cannot be used by a court of law in a fanciful and whimsical manner. Very strong reasons on consideration of the relevant factors have to form the fulcrum for lenient use of the said discretion. It is because the ringing of poignant and inimitable expression, in a way, the warning of Benjamin N. Cardozo in The Nature of the Judicial Process:

"The Judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodised by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life."

34. In this regard, we may usefully quote a passage from Ramji Dayawala & Sons(P) Ltd. v. Invest Import :(SCC p. 96, para 20) : (AIR 1981 SC 2085 [LQ/SC/1980/424] , pp. 2094-2095, para 20)

"20. ... when it is said that a matter is within the discretion of the Court, it is to be exercised according to well-established judicial principles, according to reason and fair play, and not according to whim and caprice. Discretion , said Lord Mansfield in R. v. Wilkes, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular (see Craies on Statue Law, 6th Edn., p. 273)."

35. xxxxx

36. Having discussed about the discretion, presently we shall advert to the duty of the Court in the exercise of power while imposing sentence for an offence. It is the duty of the Court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the courts accountability to remind itself about its role and the reverence for the rule of law. It must evince the rationalised judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying the law can hunt one s past" cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the Code would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Therefore, striking the balance, we are disposed to think that the cause of justice would be best sub served if the respondent is sentenced to undergo rigorous imprisonment for two years apart from the fine that has been imposed by the learned trial Judge."

The Honble Supreme Court in the aforesaid judgments have narrated the principles of sentencing to be followed. Various parameters have been considered in the aforesaid judgments, thereby holding the seriousness to be attached while awarding a sentence. The awarding of sentence is not just a mere formality, but there should be a serious application of mind while doing so. Failure to apply ones mind while awarding a sentence leads to a travesty of justice. Misplaced sympathy in awarding an inadequate sentence does more harm than good. The discretion exercised in awarding a sentence cannot be exercised in a fanciful and whimsical manner.

16. Keeping in mind the aforesaid judgments of the Honble Supreme Court, we do hope and expect that the sentence to be awarded by the trial Court, is more meaningful and relatable to the offence.

17. Considering the reasons assigned as held herein above, we have no hesitation to hold that the sentence awarded is inadequate based on the injuries sustained and the manner in which the assault was committed. Hence, the sentence requires to be modified. The sentence awarded by the Trial Court is not only inadequate, but is not supported by any acceptable reasons. Further more, in view of the injuries sustained by PWs-5 and 9, we deem it just and appropriate that the fine amount be directed to be paid to PWs-5 and 9.

18. Accordingly, Criminal Appeal No. 2533 of 2013 is allowed. The conviction is sustained. The sentence dated 27.07.2012 passed by the District and Sessions Judge, Uttara Kannada, Karwar, in S.C. No. 11 of 2009 is modified. Accused Nos. 1 and 2 are sentenced to undergo imprisonment for a period of six months and to pay fine of Rs. 50,000/- each excluding the amount of fine, if paid, and in default of payment of fine, accused 1 and 2 shall undergo further imprisonment for six months for the offence punishable under Section 326 of IPC. They are entitled for set off for the period of sentence already undergone by them. Out of the fine amount, Rs. 40,000/- each shall be paid to PW-5 and PW-9. The balance of Rs. 20,000/- shall be appropriated towards the State, to defray the cost of investigation. Fine to be deposited within a period of eight weeks from today before the Trial Court.

19. Consequently, Criminal Appeal No. 2882 of 2012 is dismissed.

20. Criminal Appeal No. 2533 of 2013 is allowed in the aforesaid terms.

21. Registry shall furnish a copy of this order to the trial Judge who delivered the impugned judgment.