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PETITIONER: HARI KISHAN & ANR.

       Vs.

RESPONDENT: SUKHBIR SINGH & ORS.

DATE OF JUDGMENT25/08/1988

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) OZA, G.L. (J)

CITATION:  1988 AIR 2127            1988 SCR  Supl. (2) 571  1988 SCC  (4) 551        JT 1988 (3)   711  1988 SCALE  (2)426

ACT:     Criminal Procedure Code,  1973: Section 357-order to pay compensation-All Courts to exercise this power liberally  to meet  ends of justice-Reasonable period for payment  may  be given-If necessary payment by installments.    Probation  of  Offenders Act, 1958:  Many  offenders-Not dangerous criminals- Weak characters who have surrendered to temptation  or provocation-Court placing such  offenders  on probation-Protects  them  from  possible  contamination   by prison.

HEADNOTE:     Seven  persons  were convicted under  sections  307/149, 325/l49, 3231/149 and 148 IPC and sentenced to undergo  R.Z. from  one year to three years. The High Court acquitted  two of  all  charges, and five of the offence under  s.  307/149 while  maintaining  their conviction and sentence  under  s. 325/149,  s. 323/149 and s. 148. They were however  released on  probation of good conduct. Each one of them was  ordered to  pay  compensation  of  Rs. 2,500  to  Joginder  who  was seriously injured and whose power of speech was  permanently impaired.     Before  this  Court  the appellant  contended  that  the intention of the five accused was obviously to commit murder of  Joginder  and  their  acquittal under  s.  3O7  IPC  was perverse.     Disposing of the appeal, it was,     HELD: (1) Under s. 307 IPC what the Court has to see  is whether  the act irrespective of its result, was  done  with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge must be such  as is  necessary to constitute murder. Without this  ingredient being  established  there can be no  offence  of"attempt  to murder".  Under  s.  307  the  intention  precedes  the  act attributed  to accused.  Therefore, the intention is  to  be gathered  from  all circumstances, and not merely  from  the consequences  that ensue. In this case, the respondents  had no  intention to commit murder. They had no  motive  either. [575F-G]                                                   PG NO 571                                                   PG NO 572

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   (2)  Many offenders are not dangerous criminals but  are weak  characters  or who have surrendered to  temptation  or provocation. In placing such type of offenders on  probation the  Court encourages their own sense of responsibility  for their future and protects them from the  stigma and possible contamination of prison. [576C-D]     (3) In this case, the High Court has observed that there was  no previous history of enmity between the  parties  and the  occurrence  was an outcome of a sudden  flare  up.  The accused  had  no intention to commit murder of  any  person. Therefore,  the  extension  of  benefit  of  the  beneficial legislation applicable to first offenders cannot be said  to be inappropriate. l576D-E]     (4) Section 357 empowers the Court to award compensation to  victims while passing judgment of conviction. This power of Courts to award compensation to victims is not  ancillary to other sentences but it is in addition thereto. This power is  intended to do something to reassure the victim that  he or  she is not forgotten in the criminal justice system.  It is  recommended  to  all  Courts  to  exercise  this   power liberally   so  as to meet the ends of justice in  a  better way. [577F-H]     (5)   The  payment  by  way  of  compensation  must   be reasonable. What is reasonable may depend upon the facts and circumstances  of each case, e.g. the nature of  crime,  the justness  of  claim  by the victim and the  ability  of  the accused  to  pay  etc. On  these  considerations  the  Court enhanced the compensation to Rs. 50,000. [578A-B]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  74 & 75 of 1986.     From  the  Judgment and Order dated  13.11.1984  of  the Punjab  and Haryana High Court in Crl. Appeal No. 128-SP  of 1984.     R.L. Kohli, R.C. Kohli and D.D. Sharma for the Appellant in Crl. A. No. 74 of 1984.     D.S. Tewatia and Mahabir Singh for the appellant in Crl. A. No. 75 of 1984.     U.R.   Lalit,  R.S.  Yadav  and  H.M.  Singh   for   the Respondents.     The Judgment of the Court was delivered by                                                   PG NO 573     JAGANNATH  SHETTY,  J.  These two  appeals,  by  special leave, are directed against a judgment of the High Court  of Punjab & Haryana in Criminal Appeal No. 128-SP of 1984.  The common  respondents  in  the appeals.  were  prosecuted  for various offenses in the court of Additional Sessions  judge, Faridkot.  By judgment dated February 28,1984 learned  Judge convicted and sentenced the accused as follows:     "Keeping  in view the circumstances of the case and  the part  played  by each of them I,  hereby  sentence  Sukhbir, Sukhpal  and  Surat Singh accused to undergo R.I.  for  four years  u/s 307/149 IPC. Each of Om Pal, Dhan Pal, Mannu  and Siri  Chand are ordered to undergo R.I. for three year.  u/s 307/149 IPC.     Each of the seven accused are further ordered to undergo R.I.  for one year 148 IPC, two years R.I. u/s 325  149  IPC and one year R. I. s/u 323/149 IPC.     Keeping  in view the circumstances of the case. all  the sentences shall run concurrently. ’’     The  accused appealed t the High Court  challenging  the conviction  and  sentence. The High Court  by  the  judgment

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under  appeals acquitted  Sukhpal Singh and Surat  singh  of all  charges by giving them the benefit of doubt. The  other accused who are respondents herein are also acquitted of the offence  under s. 307/149 and s. 148 IPC.  There  conviction and  sentence under s. 325/149, 323/149 and s. 148  IPC  are however. maintained. They are released on probation of  good conduct. Each one of them, is ordered to pay compensation of Rs.  2,500  to  Joginder who was seriously  injured  in  the incident.  In  default  to pay  the  compensation  they  are directed  to serve their sentence. The operative portion  of the judgment runs like this:      "There  is  no previous history of  enmity  between  to parties. The occurrence is the outcome of a sudden flare up. I think, these five appellants namely Sukhbir Singh Dhanpal, Mannu,  Siri  Chand and Om Pal are  entitled  their  benefit under s. 360 Cr. P.C. Consequently, I suspend their sentence under s. 325/149, 323/149 and s. 148 IPC and order that  the appellants namely Sukhbir Singh, Dhan Pal Mannu. Siri  Chand and Om Pal be released on probation  on their entering  into bonds  of Rs.3,000 each with one surety in the  like  amount for a period of one year, to the  satisfaction of the  trial                                                   PG NO 574 court,  undertaking  to appear in the court to  receive  the sentence during the said period  whenever called upon to  do so  and  in  the  meantime to keep  peace  and  be  of  good behavior.  However,  each one of the   appellant  would  pay Rs.2,500  as  compensation  payable  to  Joginder   injured. Compensation  if not paid within two months, the  appellants namely Sukhbir Singh, Dhanpal. Mannu, Siri Chand and Om  Pal would be called upon to  serve their sentence. But for  this modification, appeal fails  and is hereby dismissed.     In  view of s. 12 of the Probation of Offenders Act,  no disqualification would attach to the appellants due to this conviction.                                          Sd/-K.P.S.Sandhu                                                 Judge"     Dt. November 13, l984     In  these  appeals,  there is no  serious  dispute  with regard  to acquittal of Sukhpal Singh and Surat  Singh.  The prosecution  case that they were armed with Barchha has  not been  proved. There was no incised injury on the  victim  or any of the prosecution witnesses. Their participation in the commission  of crime therefore appears to be  doubtful.  The High Court was justified in acquitting them.     Counsel  for the appellants are, however, vary  critical of  the  order of High Court with regard  to  the  remaining accused.  It  is  urged that the High  Court  was  too  much charitable to, them. The intention of accused was  obviously to  commit murder of joginder. Their acquittal under s.  307 IPC  is characterised as perverse. At any rate, it  is  said that  they  ought not have been put on probation. It  is  an abuse  of  the  process  of Court.  They  should  have  been properly  sentenced by term of imprisonment and fine. It  is also urged that Joginder has sustained permanent  disability due  to head injury and no amount of compensation  would  be adequate for him except severe punishment to the accused  as a  general deterrence. Counsel for the accused on the  other hand, seeks to support the order of the High Court in  every respect.     In  the light of the submissions, three questions  arise consideration (i) whether the respondents are not guilty  of the  offence  under s. 307/149 IPC; (ii)  whether  the  High Court  was  justified  in extending the benefit  of  s.  360 Cr.P.C.  and  releasing  the accused on  probation  of  good conduct;  and  (iii)  whether the  compensation  awarded  to

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                                                 PG NO 575 Joginder could be legally sustained, and if so, what  should be the proper compensation ?     For  a proper consideration of these questions,  we  may summarise briefly the factual background: The rival  parties in this case are collaterals. On September 28, 1982 at about 8/9 a.m. they had an altercation near the tubewell belonging to Hari Kishan. Joginder is the son of Hari Kishan. Virender another injured in this case is nephew of Hari Kishan.  Hari Kishan was sitting near his tubewell. Virender and  Joginder were sowing Berseem crop. The accused carne from the side of the  tubewell. They were armed with Ballams and Dangas.  One of  them  raised  a Lalkara at which  the  accused  attacked Virender  and Joginder. In the brawl that followed  some  of the  accused were also injured. The injured were removed  to Civil  Hospital,  Ballabgarh.  The  Medical  Officer   there referred  them to Safdarjung Hospital, New Delhi.  Finally., they  landed themselves at the AIIMS, New Delhi.  They  were examined  by  the Doctors. Virender was found  to  have  two injuries caused by blunt weapons. Joginder was found to have head  injury. Amongst the accused Siri Chand, Dhan  Pal,  Om Pal  and  Sukhbir Singh were injured.  They  were  medically examined  in AIIMS or Safdarjung Hospital, New  Delhi.  Siri Chand had four injuries including a fracture caused by blunt weapon.  that has been proved by Dr. Rita Sood  (DW1).  Dhan Pal and Om Pal each had four injuries but simple. They  were also,  caused by blunt weapons. Dr. V.K. Dhingra (DW 2)  has spoken  to that. Sukhbir singh had one incised wound on  his person. Dr.Anurag Saxena (DW 3) has testified.     On  the  first question as to acquittal of  the  accused under  s.3O7/149 IPC, some significant aspects may be  borne in  mind.  Under  s.307 IPC what the Court has  to  see  is, whether  the act irrespective of its result, was  done  with the intention or knowledge and under circumstances mentioned in  that section. The intention or knowledge or the  accused must  be  such as is necessary constitute’  murder.  Without this  ingredient being established, there can be no  offence of "attempt to murder". Under s. 307 the intention  precedes the  act attributed to accused. Therefore, the intention  is to  be gathered from all circumstances, and not merely  from the consequences that ensue. The nature of the weapon  used, manner in which it is used. motive for the crime,severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration it,determine the intention. In this case, two parties in the course  of  a fight inflicted on each  other  injuries  both serious  and  minor. The accused though  armed  with  ballam never used the sharp edge of it.                                                   PG NO 576     They  used only the blunt side of it despite they  being attacked  by the other side. They suffered injuries but  not provoked  or tempted to use the cutting edge of the  weapon. It is very very significant. It seems to us that they had no intention  to commit murder. They had no motive either.  The fight  as  the High Court has observed, might  have  been  a sudden  flare up. Where the fight is accidental owing  to  a sudden quarrel, the conviction under s. 307 is generally not called  for.  We, therefore, see no reason  to  disturb  the acquittal of accused under s. 307 IPC.     The  question  next  to be  considered  is  whether  the accused  are  entitled to the benefit of probation  of  good conduct   ?  We  gave  our  anxious  consideration  to   the contentions  urged  by counsel. We are of opinion  that  the High Court has not committed any error in this regard  also. Many  offenders  are not dangerous criminals  but  are  weak

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characters   or  who  have  surrendered  to  temptation   or provocation.   In  placing  such  type  of   offenders,   on probation,   the  Court  encourages  their  own   sense   of responsibility  for their future and protect them  from  the stigma  and possible contamination of prison. In this  case. the  High  Court  has observed that there  was  no  previous history of enmity between the parties and the occurrence was an  outcome of a sudden flare up. These are not shown to  be incorrect.  We  have already said that the  accused  had  no intention  to  commit murder of  any  person.  Therefore,the extension   of   benefit  of  the   beneficial   legislation applicable   to  first  offenders  cannot  be  said  to   be inappropriate.     This  takes  us to, the third questions  which  we  have formulated  earlier  in this judgments. The High  Court  has directed  each  of  the  respondents to  pay  Rs.  2,500  as compensation to Joginder. The High Court has not referred to any   provision   of  law  in  support  of  the   order   of compensation.  But  that can be traced to s.  357  Cr.  P.C. Section 357, leaving aside the unnecessary, provides :    "357. Order to pay compensation :     (1)  When  a  court  imposes a sentence  of  fine  or  a sentence (including a sentence of death) of which fine forms a part,the Court may. when passing judgment. order the whole or any part of the fine recovered to be applied-     (a) in defraying the expenses properly incurred in   the prosecution;                                                   PG NO 577     (b) in the payment to any person of compensation for any loss  or injury caused by the offence. when compensation  is in the opinion of the Court, recoverable by such person in a civil Court;                       XXXXX XXXXX XXXX                         XXXXX XXXXX                            XXXXX     (3) When a Court imposes a sentence, of which fine  does not  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 any loss or injury by reason of the act for which the accused person has been so sentenced.     (4)  An order under this section may also be made by  an Appellate  Court  or by the High Court or Court  of  Session when exercising its power of revision.     (5)  At  the  time  of  awarding  compensation  in   any subsequent   civil  suit relating to the  same  matter.  the Court  shall take into account any sum paid or recovered  as compensation under this section."     Sub-section  (1) of Section 357 provides power to  award compensation  to victims of the offence out of the  sentence of  fine  imposed  on  accused. In this  case.  we  are  not concerned  with sub-section (1). We are concerned only  with sub-section  (3).  It is an important provision  but  Courts have  seldom  invoked it. Perhaps due to  ignorance  of  the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction,  the  Court may order the accused  to  pay  some amount by way of compensation to victim who has suffered  by the  action of accused. It may be noted that this  power  of Courts  to  award  compensation is not  ancillary  to  other sentences  but  it is in addition thereto.  This  power  was intended to do something to re-assure the victim that he  or she is not forgotten in the criminal justice system. It is a measure  of  responding appropriately to crime  as  well  of reconciling  the  victim with the offender. It is,  to  some

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extent.  a constructive approach to, crimes. It is indeed  a step   forward   in  our  criminal   justice   system.   We, therefore,recommend  to  all Courts to exercise  this  power liberally so as to meet the ends of justice in a better way.                                                   PG NO 578     The  payment  by way of compensation must,  however,  be reasonable What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation  may be  determined by taking into account the nature  of  crime, the  justness  of claim by the  victim and  the  ability  of accused to pay. If there are more than one accused they  may be asked to pay in equal terms unless their capacity to  pay varies  considerably.  The payment may also  vary  depending upon   the  acts  of each  accused.  Reasonable  period  for payment  of compensation, if necessary by installments,  may also  be given. The Court may enforce the order by  imposing sentence in default.     Joginder  in  this case is an  unfortunate  victim.  His power  of speech has been permanently impaired.  Doctor  has certified that he is unable to speak and that is why he  has not  stepped into the witness box for the  prosecution.  The life  long  disability of the victim ought not  to  be  bye- passed by the Court. He must be made to feel that the  Court and  accused have taken care of him. Any such measure  which would  give  him  succor is far better than  a  sentence  by deterrence.     The  compensation  awarded  by the High  Court,  in  our opinion,  appears  to  be inadequate having  regard  to  the nature of injury suffered  by Joginder. We have  ascertained the  means of accused and their  ability to pay further  sum to  the victim. We are told that they are not  unwilling  to bear  the additional burden. Mr. Lalit learned counsel  said that his clients are willing to pay any amount determined by this  Court.  It  is indeed a good gesture on  the  part  of counsel and his clients.     With  due regard to all the facts and  circumstances  of the  case,  we   consider that  Rs.50,000   compensation  to Joginder  would  meet  the ends of justice.  We  direct  the respondents  to pay the balance within two months  in  equal proportions.     The  order  of the High Court is modified  only  to  the extent  of Compensation as indicated above and in all  other respects it is kept undisturbed. The appeals are accordingly disposed of.       R.S.S.                          Appeals disposed of.