1989 PLP 1521 (MLD)

"There is no previous history of enmity between the 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 arc entitled to benefit under S. 300, Cr.P.C. Consequently, I suspend their sentence under Ss. 325/149, 323/149 and S. 148, I. P. C. and order that the appellants namely Sukhbir Singh, Lean 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 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 behaviour. However, each one of the appellants 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/- Dt. November 13, 1984 K.P.S. Sandhu, Judge"

3. In these appeals, three 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.

4. Counsel for the appellants are, however, very 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, I. P. C. is characterised as perverse. At any rate, it is said that they ought not to have been put on probation. It is an abuse of the process of Court. They should have been properly sentenced to terms 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.

5. In the light of the submissions, three questions arise for consideration (i) whether the respondents are not guilty of the offence under S. 307/149, I. P. C.; (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 Joginder could be legally sustained, and if so, what should be the proper compensation?

6. 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 tube-well 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 tube-well. Virender and Joginer were sowing Berseem Crop. The accused came from the side of the tube-well. They were armed with Ballams and Dangs. 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 (sic). Amongst the accused Siri Chand, Dhan Pal, Om Pal and Sukhbir Singh were injured. They were medically examined in AIIMS of Safdarjung Hospital, New Delhi. Siri Chand had four injuries including a fracture caused by blunt weapon. That has been proved by Dr. Rita Sood (D. W. 1). Dhan Pal and Om Pal each had four injuries but simple. They were also caused by blunt weapons. Dr. V. K. Dhingra (D. W. 2) has spoken to that. Sukhbir Singh had one incised wound on his person. Dr. Anurag Saxena (D.W. 3) has testified it.

7. On the first question as to acquittal of the accused under S. 307/149, I. P. C. some significant aspects may be borne in mind. Under S. 307, I. P. C. 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 of the accused must be such as is necessary (to) constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under section 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 to 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. They used only the blunt side of it despite they being attacked by the other side. They suffered injuries but were not provoked or tempted to use the cutting edge of the weapon. It is 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, I. P. C.

8. 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 characters or who have surrendered to temptation or provocation. 1n 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. 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 .to 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.

9. This takes us to the third question which we have, formulated earlier in this judgment. 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 0w 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 imposed 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; (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 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 powers 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."

10. Subsection (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 arc not concerned with subsection (1). We arc concerned only with subsection (3). 1t 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 reassure the victim t 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 sonic extent, a constructive approach to crimes. It is indeed all step forward in our criminal justice system. We, -therefore; recommend to alts Courts to exercise this power liberally so its to meet the ends of justice in a better way.

11. 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 D pay. If there arc 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 instalments, may also be given. The Court may enforce the order by imposing sentence in default.

12. 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 lifelong disability of the victim ought not to be bypassed 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 succour is far better than a sentence by deterrence.

13. 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 arc 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. 1t is indeed a good gesture on the part of counsel and his clients.

14. 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.

15. 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. M. B. A./31/F. C. Order accordingly.