REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.     1066       OF 2008 (Arising out of S.L.P.(Criminal) No.1080 of 2007)

MANISH JALAN — APPELLANT  

VERSUS

STATE OF KARNATAKA — RESPONDENT

J U D G M E N T

D.K. JAIN, J.:

Leave granted.  

2. The sole appellant stands convicted under Section 279

of the Indian Penal Code, 1860 (for short ‘IPC’) for the

offence  of  driving  on  public  way  so  rashly  or

negligently as to endanger human life and also under

Section  304A,  IPC  for  causing  death  by  rash  or

negligent  act,  not  amounting  to  culpable  homicide.

The  Trial  Court  sentenced  him  to  undergo  simple

imprisonment  for  one  year  and  to  pay  fine  of

Rs.5000/-  for  both  the  offences  and  in  default  to

undergo  simple  imprisonment  for  two  months.   On

appeal to the High Court, vide its judgment dated 10th

November, 2006 in Criminal Revision Petition No.159

of 2005, the High Court of Karnataka at Bangalore has

maintained  the  conviction  but  has  reduced  the

sentence to simple imprisonment for one year and a

fine of Rs.5000/- for the offence under Section 279,

IPC and simple imprisonment for six months and fine

of  Rs.5000/-  for  offence  under  Section  304A,  IPC.

This judgment of the High Court is under challenge in

this appeal by special leave.

3. Since learned senior counsel for the appellant has not

seriously questioned the correctness of the conviction

and has  confined  his  arguments  to  the  quantum of

sentence,  we  deem  it  unnecessary  to  refer  to  the

accusations against the appellant in greater detail.  It

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would suffice to note that the appellant was charge-

sheeted for driving a tanker in a rash and negligent

manner  so  as  to  endanger  human  life  and  in  the

process  dashing  against  a  Kinetic  Honda  scooter,

being driven by the deceased, who fell down and was

run over by the left wheel of the tanker. The deceased

succumbed to the injuries on way to the hospital. As

noted  above,  on appraisal  of  the  evidence,  both the

courts  below have  found the  appellant  guilty  of  the

offence under Sections 279 and 304A, IPC.

4. Mr.  U.U.  Lalit,  learned  senior  counsel  appearing  for

the appellant submitted that having regard to the fact

that  the  mother  of  the  victim has  filed  an affidavit,

inter alia, stating that she does not have any grievance

against the appellant as she believes that it was an act

of God and it was their destiny that their son left them

at an early age, the sentence of imprisonment awarded

to  the  appellant  may  be  set  aside.   Learned  senior

counsel also pleaded that the appellant was prepared

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to  pay  reasonable  amount  of  compensation,  which

may be determined by this Court to the mother of the

victim.  In support, learned senior counsel drew our

attention  to  the  affidavit  filed  by  the  mother  of  the

deceased, on issuance of notice to her.  Para 6 of the

affidavit, on which emphasis was laid by the learned

counsel, reads thus:

“I state that being the mother and class I heir  of  the  victim,  late  Shri  Vasant Prabhu,  I  am competent  and  willing  to compound  the  offence  against  Shri Manish  Jalan.   I  state  that  I  have  no objection whatsoever if this Hon’ble Court wishes  to  set  aside  the  conviction  and sentence against Shri Manish Jalan.  For this purpose,  I  am ready and willing to receive  such  additional  compensation which  this  Hon’ble  Court  may  feel appropriate, just and reasonable.”

5. Having  carefully  glanced  through  the  evidence  on

record and the reasoning of the courts below, we do

not find any ground to interfere with the conviction of

the  appellant  under  the  afore-mentioned  provisions.

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Hence, we reject the challenge of the appellant made

in this appeal to his conviction.

6. On  the  question of  compounding  of the offences,  as

prayed for in the affidavit, Section 320 of the Code of

Criminal  Procedure,  1973  (for  short  ‘CrPC’)  dealing

with  “compounding  of  offences”,  provides  that  only

such  offences  as  are  included  in  the  two  tables,

provided  thereunder  can  be  compounded.   Sub-

section (9) of Section 320 CrPC imposes a specific bar

on compounding of other offences, not included in the

two  tables.   Admittedly,  offences  punishable  under

Sections 279 and 304A, IPC do not figure in the said

tables  and  are,  therefore,  not  compoundable.

Conscious  of  the  legal  position,  learned counsel  did

not  press  for  compounding  of  the  offences.

Accordingly, we reject the prayer for compounding.

7. The next question for consideration is whether facts of

the  case,  particularly  the  supervening  circumstance

brought on record by way of the affidavit of the mother

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of the victim, warrant interference in the quantum of

sentence awarded to the appellant?

8. As noted above, pursuant to the notice issued to the

heirs  of  the  deceased,  the  mother  of  the  deceased,

namely, Smt. H. Sunanda Prabhu, has filed the afore-

mentioned affidavit.  Vide order dated 30th November,

2007,  the District  Judge,  Mangalore  was directed to

make  necessary  inquiry  through  his  own  sources

whether the said affidavit had, in fact, been sworn by

Smt.  H.  Sunanda  Prabhu  and  ascertain  the

authenticity thereof.   In his report dated 8th January,

2008,  the  Principal  District  Judge,  Mangalore,  has

reported  that  the  said  affidavit  has  been  sworn  by

Smt. H. Sunanda Prabhu before a Notary on 9th July,

2007 and the same is authenticated.

9. The law which enables the Court to direct payment of

compensation to the dependents of the victim is found

in Section 357 CrPC (1973), corresponding to Section

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545 of the 1898 Code.  The relevant portion of Section

357 reads as follows:

“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;

(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;

(c) When,  any  person  is  convicted  of any  offence  for  having  caused  the death of another person or of having abetted the commission of shelf  all offence, in paying in, compensation to the  persons who are,  under  the Fatal  Accidents  Act,  1855  (13  of 1855)  entitled  to  recover  damages from the  person  sentenced  for  the loss  resulting  to  them  from  such death;

(d) … … …

(2) … … …

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(3) 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 any loss or injury reason of the act for which the accused person has been so sentenced.

(4) An  order  under  this  section  may also be made by all Appellate Court or by the High Court or Court of Session when exercising its powers of revision.”

10.Sub-section (1) of Section 357 clothes the Court with

the power to award compensation to a victim of the

offence  out  of  the  sentence  of  fine  imposed  on  the

accused.  Sub-section (3) of the Section contemplates

that when a Court imposes a sentence, of which fine

does not form a part,  the Court may, when passing

judgment,  order  the  accused  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.  In other words, sub-

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section  (1)  provides  for  application  of  an amount  of

fine  as  compensation  when  it  forms  part  of  the

sentence whereas under sub-section (3) the Court can

direct the convicted person to pay compensation even

in cases where fine does not form part of the sentence.

The power vested in the Appellate Court or the High

Court or the Court of Sessions (in revision) to award

compensation  under  sub-section  (3)  of  Section  357

CrPC is wide and is in addition to any other sentence

which  may  be  awarded  on  conviction  of  a  person.

Needless to add that it is no substitute for sentence on

conviction.

11. Though a comprehensive provision enabling the Court

to  direct  payment  of  compensation  has  been  in

existence  all  through but  the experience  has shown

that the provision has rarely attracted the attention of

the  Courts.   Time  and  again  the  Courts  have  been

reminded  that  the provision  is  aimed at  serving the

social  purpose  and should  be  exercised  liberally  yet

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the results are not very heartening.  On this aspect,

Law Commission in its 42nd Report at para 3.17, inter

alia, observed:

“We  have  a  fairly  comprehensive provision for payment of compensation to the  injured  party  under  Section  545  of the  Criminal  Procedure  Code.   It  is regrettable  that  our  courts  do  not exercise their salutary powers under this Section as freely and liberally as could be desired.  The Section has, no doubt,  its limitations.   Its  application  depends,  in the first instance, on whether the Court considers  a  substantial  fine  proper punishment for the offence.  In the more serious cases, the Court may think that a heavy  fine  in  addition  to  imprisonment for  a  long  term  is  not  justifiable, especially  when  the  public  prosecutor ignores  the  plight  of  the  victim  of  the offence  and  does  not  press  for compensation on his behalf.”

12. In  Hari  Singh  Vs.  Sukhbir  Singh  &  Ors.1,  while

emphasising  the  need  for  making  liberal  use  of  the

provisions contained in Section 357 CrPC, this Court

has observed thus:

1 (1988) 4 SCC 551

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“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 reassure 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 extent, a constructive  approach  to  crimes.  It  is indeed  a  step  forward  in  our  criminal justice system.”

13. However,  in  awarding  compensation,  it  is  necessary

for the Court to decide if the case is a fit one in which

compensation deserves to be awarded.  If the Court is

convinced  that  compensation  should  be  paid,  then

quantum  of  compensation  is  to  be  determined  by

taking into consideration the nature of the crime, the

injury suffered and the capacity of the convict to pay

compensation  etc.   It  goes  without  saying  that  the

amount of compensation has to be reasonable, which

the person concerned is able to pay.  If the accused is

not  in  a  position  to  pay  the  compensation  to  the

injured or his dependents to which they are held to be

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entitled to, there could be no reason for the Court to

direct  such compensation.   (See:  Sarwan Singh &

Ors. Vs. State of Punjab2).   

14. Very  recently  in  Dilip  S.  Dahanukar  Vs.  Kotak

Mahindra Co. Ltd. & Anr.3 explaining the scope and

the  purpose  of  imposition  of  fine  and/or  grant  of

compensation, this Court observed as follows:

“The purpose of imposition of fine and/or grant of compensation to a great extent must  be  considered having the  relevant factors  therefor  in  mind.  It  may  be compensating the person in one way or the other.  The  amount of  compensation sought  to  be  imposed,  thus,  must  be reasonable  and  not  arbitrary.  Before issuing a direction to pay compensation, the capacity of accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way may be necessary. Some reasons, which may not be very elaborate,  may also have to be  assigned;  the  purpose  being  that whereas  the  power  to  impose  fine  is limited  and  direction  to  pay compensation can be made for one or the other  factors  enumerated  out  of  the same; but sub- Section (3) of Section 357 does not impose any such limitation and thus,  power  thereunder  should  be

2 (1978) 4 SCC 111 3 (2007) 6 SCC 528

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exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a judge.”

15.True that in the instant case the appellant has been

found  to  be  guilty  of  offences  punishable  under

Sections  279  and  304A,  IPC  for  driving  rashly  and

negligently  on  a  public  street  and  his  act

unfortunately resulted in the loss of a precious human

life.   But  it  is  pertinent  to  note  that  there  was  no

allegation  against  the  appellant  that  at  the  time  of

accident, he was under the influence of liquor or any

other substance impairing his driving skills.  It was a

rash and negligent act simplicitor and not a case of

driving  in  an  inebriated  condition  which  is,

undoubtedly despicable aggravated offence warranting

stricter and harsher punishment.

16.Having regard to all these facts and bearing in mind

the fact that the mother of the victim has no grievance

against  the  appellant  and  has  prayed  for  some

compensation, we are of the view that a lenient view

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can  be  taken  in  the  matter  and  the  sentence  of

imprisonment can be reduced.  We are of the opinion

that the ends of justice would be met if the sentence of

imprisonment  is  reduced  to  the  period  already

undergone  but  in  addition  thereto,  the  appellant

should be directed to pay an amount of Rs.1,00,000/-

to the mother of the deceased by way of compensation.

Learned counsel  for the  appellant,  in fact,  indicated

that his client was willing to pay that much amount.

We order accordingly.

17.Accordingly,  the  conviction  of  the  appellant  under

Sections 279 and 304A, IPC is maintained.  However,

the substantive sentence of imprisonment is reduced

to the period already undergone.  Imposition of fine is

also  affirmed.    Besides,  the  appellant  shall  pay  an

amount of Rs.1,00,000/- to the mother of the victim,

namely,     Smt.  H.  Sunanda  Prabhu,  by  way  of

compensation within three months from today.  If the

appellant  fails  to  pay  the  said  amount  within  the

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stipulated time, the same shall be recovered as per the

procedure prescribed under Section 431 CrPC and be

paid to Smt. H. Sunanda Prabhu.

18.The appeal is partly allowed and the order of the High

Court is modified to the extent indicated above.  

………………………………….…J.  ( C.K. THAKKER )  

…………………………………….J.  ( D.K. JAIN )

NEW DELHI; JULY 11, 2008.

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