http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: SARWAN SIMGH & ORS ETC.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT30/08/1978

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. SINGH, JASWANT

CITATION:  1978 AIR 1525            1979 SCR  (1) 383  1978 SCC  (4) 111  CITATOR INFO :  F          1979 SC1177  (9)

ACT:      Penal Code,  (Act 45),  1860 Section  300 r/w 149-Scope of.      Criminal Procedure Code, 1973 Section 357(3) (=s. 54 of 1898 Code) object of order to pay compensation to the victim or members of the family explained.

HEADNOTE:      The deceased  Mewa Singh  is the  brother  of  the  two accused Sarwan Singh and Bachan Singh and the paternal uncle of two  other accused  Karnail Singh  and Zora Singh sons of Sarwan Singh, Malkait Singh the other accused is the son-in- law of Sarwan Singh. They are thus close relatives and there was dispute  over a  common khal  of the  land and pahi. The deceased had put an application before the Revenue Authority against the  accused and  the matter  was pending  when  the occurrence took place on 8-9-1969. The deceased was attacked by the  accused with  deadly weapons resulting in as many as 27 injuries  of which  injuries 2  and 3  were grievous. The deceased died  the next day in the civil hospital. The cause of death  was shock  and haemorrhage  and the  injuries were ante-mortem and  sufficient in the ordinary course of nature to cause  death. The  trial court found all the five accused guilty under  s. 302  read with  s. 149  I.P.C. and punished them taking  the view  that once  the existence  of injuries sufficient to  cause death is proved, the intention to cause death  will   be  presumed   unless  the   evidence  or  the circumstances warrant an opposite conclusion. The High Court in appeal  from that  the common  object was clearly to kill the deceased and that the offence fell under s. 300. Thirdly read with s. 34 IPC and accepted the trial court’s Judgment.      Dismissing the appeals by special leave the Court, ^      HELD: (1)  If  a  person  causes  an  injury  with  the intention of  causing bodily  injury to  any person and when the bodily  injury intended to be inflicted is sufficient in the ordinary  course of  nature to  cause death, the offence would fall  under clause  (iii)  of  s.  300  and  would  be punishable under s. 302 I.P.C. [387 B]      (2) In order to find the person guilty of offence under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

s. 300 read with s. 149, the prosecution must establish that the offence  was committed  by any  member  of  an  unlawful assembly in prosecution of the common object of the assembly or such as the members of that assembly knew it to be likely to be  committed in prosecution of the common object. It is, therefore, necessary  for the  prosecution to establish that the common  object of the unlawful assembly was to commit an offence under  s. 300  or that  the members  of the assembly knew it to be likely that an offence under s. 300 punishable under s.  302 IPC  would be  committed in prosecution of the common object. [387 B-D]      (3) If the injuries that are sufficient in the ordinary course of  nature to  cause death are traced to a particular accused, he  will be  guilty of  an  offence  under  s.  300 punishable under  s. 302 without the aid of s. 149, when the injuries caused  are cumulatively sufficient to cause death, it is necessary before holding 384 each of  the accused guilty under s. 300 read with s. 149 to find that  the common object of the unlawful assembly was to cause death  or that  the members  of the  unlawful assembly knew it to be likely that an offence punishable under s. 302 IPC would  be committed in prosecution of the common object. [387 D-F]      In the instant case, on an analysis of the injuries (a) it cannot  be said  that any  of the  persons that inflicted injuries intended  to cause  death  or  such  injury  as  is sufficient in  the ordinary course of nature to cause death. (b) The circumstance that unexpected quarrel was between the members of the same family over a dispute as to water rights shows that  no offence  under s.  300 read with sec. 149 IPC punishable under  s. 302  IPC has  been made  out.  (c)  the common object  of the assembly was to cause bodily injury as is likely  to cause death. Though the doctor has stated that the injuries  were sufficient  in  the  ordinary  course  of nature to  cause death,  it is  difficult to  hold that  the injuries, cumulatively,  were  sufficient  in  the  ordinary course of  nature to  cause death.  The common object of the assembly in  the circumstances  can only  be said  to  cause injuries which  are likely  to cause  death which will be an offence punishable  under section 304(1) of the Indian Penal Code. [388 E-H 389 A]      (4)  (a)   The  object  of  s.  357(3)  is  to  provide compensation payable  to the  persons who  are  entitled  to recover damages  from the  person sentenced even though fine does not  form part  of the  sentence. Though s. 545 of 1898 Code enabled  the court  only to pay compensation out of the fine that would be imposed under the law, by s. 357 (3) when a court  imposes a  sentence, of  which fine does not form a part, the  Court may direct the accused to pay compensation. [390 D-E]      (b) In  awarding compensation  it is  necessary for the court to  decide whether  the case  is a  fit one  in  which compensation  has  to  be  awarded.  If  it  is  found  that compensation should  be  paid,  then  the  capacity  of  the accused to  pay a  compensation has  to  be  determined.  In directing compensation,  the object  is to  collect the fine and pay  it to  the person  who has  suffered the  loss. The purpose will not be served if the accused is not able to pay the fine  or compensation  for, imposing  a default sentence for non-payment of fine would not achieve the object. If the accused is  in a  position to  pay the  compensation to  the injured or  his dependent  to which  they are  entitled  to, there could  be no  reason for  the court not directing such compensation  When  a  person,  who  caused  injury  due  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

negligence or  is made  vicariously liable  is bound  to pay compensation it is only appropriate to direct payment by the accused  who  is  guilty  of  causing  an  injury  with  the necessary mens  rea to  pay compensation  for the person who has suffered injury. [390 E-G]      (c)  The   court  should   not  first   consider   what compensation sought  to be  awarded  to  the  heirs  of  the deceased and  then impose  a fine  which is  higher than the compensation. It  is the  duty of  the court  to  take  into account the  nature of  the crime,  the injury suffered, the justness of  the claim for compensation. the capacity of the accused to  pay the  other relevant  circumstances in fixing the amount of fine or compensation. [390 G-H, 391 A]      Palaniappa Gounder v. State of Tamil Nadu, [1977] 3 SCR 132 applied.      [The  Court   altered  this   conviction   of   offence punishable under s. 304(1) read 385 with s.  149 and  sentenced to 5 years R-I and a fine of Rs. 3500/- each,  the fine  to be  paid as  compensation to  the widow of the deceased]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 59 and 60 of 1972.      Appeals by  Special Leave  from the  Judgment and order dated 23-9-1971 of the Punjab and Haryana High Court in Cr1. A. 512 of 1970.      R. L. Kohli and U. P. Singh for the Appellants.      A. S.  Sohal, Hardev  Singh and  R. S.  Sodhi  for  the Respondent.      The Judgment of the Court was delivered by      KAILASAM, J. The two criminal appeals Nos. 59 and 60 of 1972 are  by special  leave. Criminal  Appeal No. 59 of 1972 is, preferred by Sarwan Singh, Karnail Singh, Zora Singh and Malkiat Singh,  while Criminal  Appeal No.  60 of 1972 is by Bachan Singh  against their  conviction and sentence imposed on them  by the  trial court and confirmed by the Punjab and Haryana High  Court in Criminal Appeal No. 512 of 1970. This Court granted  special leave  in both  cases limited  to the question  as   to  whether  the  offence  committed  by  the appellants is  one punishable  under section  300 I.P.C.  or under any part of section 304 I.P.C.      The facts  necessary for  determining what  offence the accused were  guilty of  may be  stated. Sant  Singh is  the father of  Sarwan Singh, Bachan Singh and Mewa Singh. Sarwan Singh is  the first  appellant in  Criminal Appeal No. 59 of 1972 and  Bachan Singh  is the  sole appellant  in  Criminal Appeal No.  60 of  1972. The  deceased Mewa  Singh is  their brother. Sarwan  Singh had  two sons, Zora Singh and Karnail Singh who are appellants Nos. 3 and 2 in Criminal Appeal No. 59 of  1972. Sarwan  Singh’s daughter was married to Malkiat Singh who  is the fourth appellant in Criminal Appeal No. 59 of 1972.  Pending appeal, Sarwan Singh and Bachan Singh have died  and  their  appeals  have  abated.  We  are  therefore concerned only  with Karnail  Singh, Zora  Singh and Malkiat Singh who  are appellants Nos. 2, 3 and 4 in Criminal Appeal No. 59 of 1972.      The deceased  is the  brother of  the two  accused  and paternal uncle  of the  two other  accused. The  dispute was over a common Khal of the land and a pahi. The deceased Mewa Singh  put  an  application  before  the  Revenue  authority against the  accused and  the matter  was pending  when  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

occurrence took place.      On the  date of  the occurrence,  8-9-1969, at  about 3 P.M., PW..  3, Mohinder  Singh, went  to Amar Singh, P.W. 5, who is  Lambardar of  his village  in  connection  with  the mutation of his land. Amar Singh was grazing his cattle near the minor canal just opposite to the well 386 of the  accused and the deceased Mewa Singh. When P.W. 3 was 20 Kadams  away from  the place where Amar Singh was grazing his cattle,  he heard  a Raula  coming from the side of tube well of  Mewa Singh.  Hearing the  noise, P.W. 3 ran towards their place  of the  occurrence. He  also saw  P.W. 5,  Amar Singh and  Mohinder Singh,  son of Thakar Singh, P.W. 4 also running towards the place of occurrence. The three witnesses and Ujagar  Singh, P.W. 9 who are eye-witnesses spoke to the actual incident as follows:-           "When they  reached near  the place  of occurrence      they heard  Zora Singh  shouting to  Mewa  Singh.  Zora      Singh was  armed with  a  Gandasi,  Karnail  Singh  was      holding a Takwa, Malkait Singh was armed with a Gandasi      and Sarwan  Singh and  Bachan Singh were having a Lathi      each. Zora  Singh gave a Gandasi blow to Mewa Singh who      raised his  hands to  ward off  the blow  and sustained      injury. Karhail  Singh then  gave a  Takwa blow to Mewa      Singh which  he warded off by raising his hands and got      an injury  on his  hand. Zora  Singh and  Karnail Singh      gave  more  injuries  with  their  respective  weapons.      Therefore, all  the accused started causing injuries to      Mewa Singh  with their  respective weapons while he was      Lying on the ground."      On the  evening at  about 8.30  P.M., P.W.  14 saw Mewa Singh and  enquired from  the doctor whether he was in a fit condition to,  make a statement. The doctor gave his opinion that Mewa  Singh was  not fit  to  make  a  statement.  Mewa Singh’s condition  was found  to  be  not  satisfactory  and therefore he  was moved to Civil Hospital, Ludhiana. He died at 5.40  p.m. On  9-9-1969. The  doctor noted 27 injuries on the person of Mewa Singh. According to the doctor, the cause of death  was shock  and haemorrhage  and the  injuries were ante-mortem and  sufficient in the ordinary course of nature to cause  death. Dr.  Jagjit Singh,  P.W. 5,  examined  Mewa Singh on  admission to the hospital at 6.45 p.m. On 8-9-1969 and found 27 injuries on Mewa Singh, of which injuries 2 and 3 were grievous. Injuries at 3, 5 to 9, 11 to 17 were caused by sharp-edged  weapons. All  the injuries,  except 2  and 3 were simple in nature.      The trial  court was  of the view that the question for consideration was  whether the  accused intended  to inflict the injuries  in question  and  if  once  the  existence  of injuries sufficient  to cause death is proved, the intention to cause  death will  be presumed unless the evidence or the circumstances warrant  an opposite conclusion. In this view, the trial  court found  all the accused guilty under section 302 read with section 149 of the Indian Penal Code. The High Court found that 387 the common  object was  clearly to kill the deceased and the offence fall  under section  300. Thirdly, read with section 34, Indian Penal Code.      The facts  of the case disclose that five accused armed with various  weapons caused  the injuries  to the  deceased which resulted  in his  death. If  a person causes an injury with the  intention of  causing bodily  injury to any person and when  the bodily  injury intended  to  be  inflicted  is sufficient in  the ordinary course of nature to cause death,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

the offence would fall under clause (iii) of section 300 and would be  punishable under  section 302  of the Indian Penal Code. The five accused were convicted by the trial court for an offence under section 302 read with section 149 I.P.C. In order to find the person guilty of offence under section 302 read with  section 149,  the prosecution must establish that the offence  was, committed  by any  member of  an  unlawful assembly in prosecution of the common object of the assembly or such as the members of that assembly knew to be likely to be committed  in prosecution  of the  common object.  It is, therefore necessary  for the  prosecution to  establish that the common  object of the unlawful assembly was to commit an offence under  section  300  or  that  the  members  of  the assembly knew it to. be likely that an offence under section 300 would  be committed in prosecution of the common object. The cumulative  effect of the injuries was no doubt found to have been  sufficient in  the ordinary  course of  nature to cause death.  If the  injuries that  are sufficient  in  the ordinary course  of nature  to cause  death are  traced to a particular  accused,   he  will  be  guilty  of  an  offence punishable under section 302 without the aid of section 149, when the  injuries caused  are  cumulatively  sufficient  to cause death,  it is  necessary before  holding each  of  the accused guilty  under section  302 read  with Section 149 to find that  the common object of the unlawful assembly was to cause death  or that  the members  of the  unlawful assembly knew it  to be  likely  that  an  offence  punishable  under section 302  I.P.C. would be committed in prosecution of the common object.  In order  to determine  this question, it is necessary to refer to the injuries caused in some detail:      Two grievous injuries are injuries 2 and 3 described in Ex. PD.  Injury No.  2 is  an incised wound 3/4" x 1/4" bone deep on the right little finger at its middle and injury No. 3 is  incised wound 1/3" distal to injury No. 2 at the right little finger  cutting the  bone  underneath.  The  grievous injury is  the fracture  and cutting  of  the  Light  little finger  caused  by  a  sharp-edged  weapon.  All  the  other injuries are  simple in  nature. The injuries Nos. 1 to 3, 5 to 9, 11 to 17 were caused by sharp-edged weapon. Injury No. 1 is incised wound 1/2 " x 1/6" muscle deep on the left palm in-between the left thumb and index 388 finger. Injury  No. 2 is incised wound 3/4" x 1/4" bone deep on the  right little  finger at  its middle. Injury No. 3 is incised wound  1/3" distal  to Injury  No. 2  at  the  right little finger  cutting the  bone underneath. Injury No. 5 is incised wound  2" x 1/4" muscle deep on the left shin at its middle areas.  Injury No.  6 is incised wound 1/2" x 1/4" on the left  shin. Injury  No. 7  is incised  wound 1/3" x 1/4" muscle deep  on the left shin. Injury No. 8 is incised wound 1/3"x 1/4"  muscle deep  on the  left shin.  Injury No. 9 is incised wound  3/4" x  1/3" muscle  deep on  the left  shin. While Injury  No. 1  is on The left palm in between the left thumb and  index finger,  injuries Nos. 2 and 3 on the right little finger at its middle, injuries Nos. 5 to 9 are in the area of  the left  shin. Most  of the injuries are only 1/4" deep while  injury No.  9 is  1/3" deep, and injury No. 1 is 1/6" in  depth. The  other injuries Nos. 11 to 17 are on the right shin  and are incised wounds, most of which are of the size of  1 3/4" x 1/4". The other injuries are contusions in the chest  area on the right and the left side, the with not exceeding 3/4  of an  inch. Injury  No. 26 is on the head of the dimension  of 1 3/4" X 1/4" muscle deep on the left side of the  head 3"  above the  left ear.  All the  injuries are described by  the do tor as simple. The depth of the incised

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

injuries is  not more  than of  an inch and the width of the contusions is  not more  than 3/4".  The area  of the injury cannot be said to be a vital part of the body. The injury on the head  is only 1" in depth and has not caused any damage. On an analysis of the injuries it cannot be said that any of the persons  that inflicted injuries intended to cause death or such  injury as  is sufficient  in the ordinary course of nature to  cause death. If the common object of the unlawful assembly was  to commit  murder and  in prosecution  of  the common object  of the unlawful assembly any member caused an injury which  is sufficient in the ordinary course of nature to cause  death, the members of the assembly would be liable for an offence under section 302 I.P.C. read with 149 I.P.C. but on  a consideration of the injuries we are not satisfied that the common object of the unlawful assembly was to cause death. Taking  the circumstance  that the unexpected quarrel was between the members of the same family over a dispute as to water  rights, we  are unable  to held that offence under section 302  read  with  section  149  is  made  out.  On  a consideration of  the circumstances  and the  nature of  the injuries, it  is not possible to hold that the common object of  the  assembly  was  to  cause  bodily  injury  which  is sufficient in  the ordinary course of nature to cause death. It can be said that the common object of the assembly was to cause bodily  injury as is likely to cause death. Though the doctor has  stated that  the injuries were sufficient in the ordinary course  of  nature  to  cause  death,  we  find  it difficult to  hold that  the  injuries,  cumulatively,  were sufficient in the ordinary course of nature 389 to cause  death. The  common object  of the  assembly in the circumstances can  only be  said to cause injuries which are likely to  cause death  which will  be an offence punishable under section  304(1) of  the  Indian  Penal  Code.  In  the circumstances we  set aside the conviction under section 350 read with  section 34  I.P.C. but  find the  appellants  are guilty of  an offence  punishable under  section 304(1) read with section  149 I.P.C.  and sentence  them to  five  years rigorous imprisonment and a fine of Rs. 3,500/- each.      In this case, the death was caused by the brothers in a quarrel regarding  water rights.  From the  records  we  are satisfied that  the accused  are possessed  with  sufficient funds to  compensate, at least to some extent, the loss that has been suffered by the dependants of the deceased.      The law  which enables the Court to direct compensation to be  paid to the dependants is found in section 357 of the Code  of   Criminal  Procedure   (Act  2   of   1974).   The corresponding provision  in the  1898 Code  was section 545. Section 545  of the  Code of  Criminal Procedure  (Act 5  of 1898) was  amended by  Act 18 of 1923 and by Act 26 of 1955. The amendment  which is  relevant for  the  purpose  of  our discussion is  525(1)(bb) which,  for  the  first  time  was inserted by  Act 26  of 1955. By this amendment the court is enabled to  direct the  accused, who  caused  the  death  of another person,  to pay compensation to the persons who are, under the  Fatal Accidents  Act, entitled to recover damages from the  persons sentenced,  for the loss resulting to them from such  death. In  introducing the  amendment, the  Joint Select Committee  stated "when  death has  been caused  to a person, it  is but  proper that  his  heirs  and  dependants should be  compensated, in  suitable  cases,  for  the  loss resulting to  them from  such death,  by the  person who was responsible for  it. The  Committee proceeded  to state that though section  545 of  the Code  as  amended  in  1923  was intended to  cover such cases, the intention was not however

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

very clearly brought out and therefore in order to focus the attention of  the courts on this aspect of the question, the Committee have  amended section  545 and  it has  been  made clear that  a fine may form a part of any sentence including a sentence  of death  and it has also been provided that the persons who  are entitled  under the  Fatal  Accidents  Act, 1855, to  recover damages  from the  person sentenced may be compensated out  of the  fine imposed. It also expressed its full agreement  with the  suggestion that  at  the  time  of awarding judgment  in a  case where  death has resulted from homicide, the  court should  award compensation to the heirs of the deceased. The Committee felt that this will result in settling the  claim once for all by doing away with the need for a  further claim  to a  civil Court,  and avoid needless worry and expense 390 to both  sides. The  Committee further  agreed that in cases where the death is the result of negligence of the offender, appropriate compensation  should be awarded to the heirs. By the introduction  of clause  (bb)  to  section  545(1),  the intention  of  the  legislature  was  made  clear  that,  in suitable  cases,   the  heirs   and  dependents   should  be compensated for  the loss  that resulted  to them  from  the death, from  a person  who was  responsible for it. The view was also  expressed that the court should award compensation to the  heir of  the decease  so that  their claims would be settled finally. This object is sought to be given effect to by section  357 of  the new  Code (Act  2 of  1974). Section 357(3) provides  that 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 sufered any loss or injury by reason of the  act  for  which  the  accused  person  has  been  so sentenced. The  object  of  the  section  therefore,  is  to provide compensation payable to the persons who are entitled to recover  damages from  the person  sentenced even  though fine does  not form part of the sentence. Though section 545 of 1898  Code enabled the court only to pay compensation out of the  fine that would be imposed under the law, by section 357(3) when  a Court  imposes a sentence, of which fine does not form  a part,  the Court  may direct  the accused to pay compensation. In  awarding compensation  it is necessary for the court  to decide  whether the case is a fit one in which compensation  has  to  be  awarded.  If  it  is  found  that compensation should  be  paid,  then  the  capacity  of  the accused to  pay a  compensation has  to  be  determined.  In directing compensation,  the object  is to  collect the fine and pay  it to  the person  who has  suffered the  loss. The purpose will not be served if the accused is not able to pay the fine  or compensation  for, imposing  a default sentence for non-payment of fine would not achieve the object. If the accused is  in a  position to  pay the  compensation to  the injured or  his dependents  to which  they are  entitled to, there could  be no  reason for  the Court not directing such compensation. When  a person,  who  causing  injury  due  to negligence or  is made  vicariously liable  is bound  to pay compensation it is only appropriate to direct payment by the accused  who  is  guilty  of  causing  an  injury  with  the necessary Mens  Rea to  pay compensation  for the person who has suffered injury.      In awarding  compensation as cautioned by this Court in a decision  reported in Palaniappa Gounder v. State of Tamil Nadu, the  Court should not first consider what compensation ought to  be awarded  to the  heirs of the deceased and then

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

impose a  fine which  is higher than the compensation. It is the duty of the Court to take into account the 391 nature of  the crime,  the injury  suffered, the justness of the claim  for compensation,  the capacity of the accused to pay and order relevant circumstances in fixing the amount of fine or  compensation. After  consideration of all the facts of the  case, we  feel that in addition to the sentence of 5 years rigorous  imprisonment, a  fine of Rs. 3,500/- on each of  the  accused  under  section  304(1)  I.P.C.  should  be imposed. The  fine will be paid as compensation to the widow of the  deceased, Mewa Singh. Tn default of payment of fine, the accused  will undergo  further Simple imprisonment for 6 months. S.R.                                      Appeals dismissed. 392