Delhi High Court
Nehru Jain vs State Nct Of Delhi on 15 January, 2005
Equivalent citations: 116(2005)DLT634, 2005(79)DRJ329
Author: T.S. Thakur
Bench: T.S. Thakur, J.P. Singh
JUDGMENT T.S. Thakur, J.
1. Leasurily moving marriage processions led by a band playing popular Hindi film tunes and a group of revelers dancing to such tunes is a common sight in this part of the country. To add gaiety to the occasion, some such processions add fireworks while some others would make public display of their affluence by freely throwing about currency notes or small change for the urchins to collect and make merry. The incident with which we are concerned in this appeal and which led to the death of a band man took place in the course of one such marriage procession. What distinguished this procession from others was the presence of the appellant among the marriage party with a licensed revolver from which he was firing shots. One of the bullets shot from the revolver is alleged to have hit the deceased Vikram, one of the members of the band party resulting in his death and a charge-sheet against the appellant for the commission of an offence punishable under Section 302 of the IPC. The trial court has, on the basis of the evidence adduced before it, come to the conclusion that the prosecution has proved the charge against the appellant and accordingly convicted and sentenced him to undergo imprisonment for life. The present appeal assails the correctness of the said judgment and order on sentence.
2. Information about a shooting incident having taken place in front of Tandoori Restaurant in Krishna Nagar was received in Krishna Nagar Police Station and recorded in DD entry No. 30-A, a copy whereof was handed over to SI Mukesh Tyagi of the said police station who rushed to the spot along with constable Subhash. On reaching the spot, SI Mukesh Tyagi was informed by Constable Surender Singh that the injured had been taken to GTB Hospital. SI Mukesh Tyagi and Constable Surender Singh, therefore, reached to the hospital and obtained the MLC of injured who had been admitted with a head injury and was unfit to make a statement. Sanjay Sharma, the proprietor of "Master Band" which had been booked full time for that evening in the name of one Satish Kumar, however, made a statement to the police. Sharma deposed that he had sent a band consisting 15 persons to 78-A, Dilshad Garden, New Delhi headed by Master Jameel. The marriage procession had to proceed from Dilshad Garden to Krishna Nagar. He stated that when the procession reached near Tandoori Restaurant Lake, Krishna Nagar, he went there to check the band. The accused was, at that time, standing near the bride groom and was shooting from a revolver. One of the bullets shot by him hit Vikram in the head who was playing base drum. The entire staff of the band had seen the accused shooting. He further stated that he had taken the injured to the GTB hospital in his car and got him admitted there.
3. On the basis of the above statement, a case was registered for investigation by SI Mukesh Tyagi who got the spot photographed, seized the blood sample and earth control, prepared a site plan and took into possession three empty cartridges recovered from the spot. He also recovered a .32 bore revolver with 20 live cartridges and the arm license from the residence of the appellant apart from recording the statement of the witnesses.
4. Injured Vikram eventually died in the hospital on 19th February, 1999 whereupon the case was converted to one under Section 302 of the IPC and further investigation handed over to Inspector Laxmi Narain, SHO. After post-mortem of the dead body was conducted, the body was handed over to the legal heirs and the accused arrested and sent up for the trial to the court of Additional Sessions Judge, Delhi where he pleaded not guilty and claimed a trial.
5. At the trial, the prosecution examined 20 witnesses in all including PW-1 Sanjay Sharma the complainant, PW-2 Jameel the band master, PW-3 Aslam the brother of the deceased, PW-4 Hafiz who had deployed the deceased in the band party, PW-7 Sanjeev Jain who as Metropolitan Magistrate had recorded the statement of witnesses under section 164 of the Cr.P.C, PW-9 Dr. N.S. Pandey Senior Scientific Officer who examined the revolver and cartridges sent to CFSL, PW-10 Dr. Gaurav Aggarwal who conducted the post-mortem, PW-13 Dr. Sanjeev Senior Scientific Officer, Chandigarh, PW-14 Dr. K. Biswas who had examined the deceased when he was taken to the hospital on the night of 18th February, 1999. The rest of the witnesses all happened to be police officials including the investigating officer associated with the investigation from time to time.
6. In the statement of the accused recorded under Section 313 of the Cr.P.C., he expressed ignorance about the incident. He stated that the police had threatened his wife and in his absence taken his revolver, three empty cartridges and 20 cartridges apart from the arms license and holster which were lying in the almirah. He denied the report submitted by Dr. N.S. Pandey of the CFSL as false. He also alleged that since he deals in real estate, he had been falsely implicated for not giving money to police officials which they used to ask for. The accused did not, however, lead any evidence in defense.
7. The trial court came to the conclusion that a bullet had hit the deceased Vikram in his head while he was playing base drum as a member of the band party when the marriage procession which the band party was leading had reached a place in front of the Tandoori Night Restaurant. The court also came to the conclusion that the bullet injury that caused the death of the deceased had been fired through the revolver licensed in the name of the appellant. The court rejected the contention urged by the defense that apart from seizing 20 live cartridges, the police had also seized from Smt. Poonam Jain, the wife of the appellant, three empty cartridges. It held that three empty cartridges recovered from the spot had been fired from Ex.P-1, the revolver of the accused. The Ballistic expert had test fired three of the twenty live cartridges seized from the appellant's house marked Ex.PW-4/1-2 while the rest of the 17 live cartridges were still available and were marked Ex.PW-3/1-17. The court below concluded that the deceased had died on account of a gun shot injury fired from the revolver of the appellant. Relying upon the decision of Supreme Court in Pawan Kumar v. State of Haryana 2001 SCC (Cri) 594, the court held that the circumstances brought on record unerringly and unmistakably pointed to the guilt of the accused as the said circumstances were incompatible with the innocense of the accused. The court accordingly convicted the appellant of an offence punishable under Section 302 of the IPC and sentenced him to undergo imprisonment for life.
8. Appearing for the appellant, Mr. Tulsi made a two-fold submission in support of the appeal. The first of these submissions urged rather feebly was that the prosecution evidence did not connect the appellant with the bullet injury sustained by the deceased. He submitted that the prosecution had, in support of its case, relied upon the depositions of PW-1 Sanjay Sharma and PW-2 Jameel both of whom had not supported the prosecution version. PW-1 Sanjay Sharma had, according to the learned counsel, reached the place of occurrence after receiving a phone call from PW-2 Jameel who happened to be the band master heading the band party on the fateful evening. He was not, therefore, an eye-witness to what had transpired on the spot before his arrival. Even PW-2 Jameel who was heading the band party had not, argued Mr. Tulsi, supported the prosecution case that the appellant was firing from his revolver and that one of the bullets so fired had hit the deceased in the head. In the absence of any evidence connecting the appellant with the injuries sustained by the deceased, the court below had fallen in error in holding the appellant guilty.
9. The depositions of PW-1 Sanjay Sharma and PW-2 Jameel support the prosecution case but only to a limited extent. PW-1 Sanjay Sharma is the proprietor of 'Master Band', Lajpat Rai Market, Delhi. He claims to have received a phone call from Jameel, the band master, that one of the members of the band party had received an injury and was bleeding from his head. The band party which comprised 15 members had been booked for the marriage of Satish Kumar and was to go from Dilshad Garden to Krishna Nagar. The witness claims to have rushed to the spot near Tandoori Night Restaurant, Krishna Nagar and found the deceased Vikram who was one of the members of the band party lying in an injured condition with a head injury. The witness removed the injured to the GTB hospital where he expired the following day.
10. To the same effect is the deposition of PW-2 Jameel, the band master, according to whom a band party comprising 15 members had been booked in the name of Satish Kumar and was to go from Dilshad Garden at about 7:30 p.m. to reach Krishna Nagar by about 8:00 or 8:30 p.m. He was informed by a boy who came up to him that one of the members of the band party had received injuries. He rushed to the deceased who was playing base band and found him lying on the ground in an injured condition. The witness claims to have informed Sanjay Sharma, PW-1 on phone who arrived on the spot and took the injured to the hospital. The deceased had died the following day in the hospital.
11. It is true that both the witnesses have expressed total ignorance about how the deceased was hit by the bullet and have resoled from their statements recorded under Section 164 of the Code of Criminal Procedure, but the fact remains that the witnesses have leaving apart the involvement of the appellant proved the remaining facets of the prosecution case. Both the witnesses have supported the prosecution version that the deceased was one of the members of the band party which was booked in the name of Satish Kumar. Both of them have supported the prosecution case that the band party had started from Dilshad Garden and was on its way to Krishna Nagar on the fateful evening. Both the witnesses have further supported the prosecution case that when the party reached a spot near Tandoori Night Restaurant in Krishna Nagar, the deceased had sustained an injury in the head and collapsed on the ground in an unconscious state. He was then removed to the hospital where he passed away the following day.
12. The witnesses have resoled from their earlier statements according to which the appellant was standing near the bridegroom's mount and firing from a revolver one of which bullets had hit the deceased. They also denied the suggestion that they were resiling from the version given by them earlier for extraneous consideration and to save the appellant. The link that thus appears to be missing in the ocular evidence is, however, sufficiently provided by the testimony of Dr. N.S. Pandey, Senior Scientific Officer and the other witnesses examined in the case. PW-8 SI Mukesh Tyagi who had rushed to the spot after receiving information about the firing incident has, in his deposition, stated that when he reached Jheel Road, Krishna Nagar, opposite Tandoori Night Restaurant, he found blood on the ground from which he took a sample and sealed the same in terms of a memo prepared in that regard. He also testified that three empty cartridges were seized from the spot in terms of memo Ex.PW-1/C. The witness goes on to state that a revolver licensed in the name of the appellant, arms license for the said weapon and twenty live cartridges were handed over by Smt. Poonam Jain, w/o Nehru Jain, from the latter's house in terms of seizure memo marked Ex.PW-8/D.
13. Dr. N.S. Pandey, Senior Scientific Officer, Bureau of Police Research and Development, Ministry of Home Affairs, Lodhi Road, New Delhi has, in his deposition, stated that he was working as Senior Scientific Officer at CFSL, Chandigarh where four sealed parcels in connection with the present case were received. Three of these parcels were received with the seal of MT. The parcels were opened one of which was found to contain one .32 calibre 6 chamber Smith & Wason revolver No. H-144455. The second parcel contained twenty .32 S&W long cartridges while the fourth parcel contained three .32 S&W long fired cartridge cases. The fourth parcel had in it the crime bullet which killed the deceased. After conducting the requisite test, the witness found that the revolver was in working order and that the same had been fired through before receiving in the lab. The witness further testified that the three crime cartridge cases, when compared with the test fired cartridge cases under compression by microscope, were found to have been fired through the Smith & Wason weapon referred to above. Even the crime bullet marked 'B' was, in the opinion of the witness, fired from the weapon in question. The opinion recorded by the witness on the basis of tests and the observations made by him may, at this stage, be gainfully extracted.
OPINION :
1. The barrel of 32 calibre Smith &Wason revolver No. H-144455 marked A was swabbed and tested Chemically for the presence of firing discharge residue. On the basis of Chemical examined it opined that S&W revolver No. H-144455 mark A had been fired through before it was received in the Lab. The revolver mark A was in working order.
2. The crime cartridges cases Ex.C-1 to C-3 were compared with the test fired cartridges cases, test fired through revolver marked A under compression by micro scope for pertinent characteristic mark. On the basis of compression, it was opined that crime cartridges cases Ex.C-1 to C-3 had been fired through S&W revolver No. H-144455 mark A.
3. The crime bullet mark B was compared with test fired bullet, test fired through revolver mark A and under compression micro scope for pertinent rifling characteristic mark. On the basis of compression, it is opined that crime bullet mark B had been fired through revolver No. H-144455 mark A. I prepared my report Ex.PW-9/A . The report is Ex.PW-9/A and bears my signature at point A along with my seal. I had sealed the parcels under examination with my seal Ballistic Division, CFSL, Chandigarh and was given to SI Randhir Singh along with the report in sealed cover.
14. There is nothing in cross-examination which could possibly shatter or dislodge the opinion expressed by the witness either on the ground of deficient expertise of the witness or any other improbability whatsoever. The fact that the weapon used for firing the crime bullet was licensed in the name of the appellant and was recovered from his house with twenty live cartridges three of which were used for test firing by the expert is also firmly established by the evidence on record.
15. It was, in the above circumstances, difficult for the appellant to deny the use of the weapon in the commission of the crime. Confronted with this evidence, Mr. Tulsi, fairly conceded that in the absence of any explanation as to how the weapon came to be used for the commission of the crime, the other circumstances proved in the case including the presence of the appellant in the marriage procession at the time of the occurrence was sufficient to connect the appellant with the weapon as also the injury resulting in the death of the deceased, Vikram, the retraction of the statements made by PW-1 Sanjay Sharma and PW-2 Jameel notwithstanding. We have, in that view of the matter, no hesitation in rejecting the first limb of Mr. Tulsi's argument and holding that the trial court had correctly come to the conclusion that the deceased had died because of a bullet injury sustained by him in the head and that the said bullet had been fired by the appellant from the Smith & Wason revolver licensed in his name and subsequently seized from his house.
16. It was next argued by Mr. Tulsi that even if the prosecution case was accepted in its entirety, the appellant could not be convicted for an offence of murder punishable under Section 302 of the IPC. He urged that the prosecution had not alleged leave alone proved that the appellant intended to kill the deceased by shooting him in the head. There was no enmity between the appellant and the deceased nor any motive for the commission of the offence of murder. The trial court had, argued the learned counsel, fallen in error in holding that the appellant's case fell under Section 300 fourthly of the IPC. It was contended that the circumstances in which the incident had taken place clearly suggested that there was neither any intention nor the knowledge requisite for a conviction under Section 302 of the IPC that the firing of a shot from the revolver held by the appellant could cause death. The appellant's act of firing from the revolver could at best constitute a rash and negligent act punishable under 304A of the IPC. It was submitted that the appellant was ready and willing to pay compensation to the parents of the deceased in terms of Section 357 of the Cr.P.C. To make that submission good, the appellant has furnished two bank drafts for a sum of Rs. 1,75,000/- each in the name of the parents of the deceased Vikram.
17. The trial court has, while dealing with the nature of the offence committed by the appellant, held that an offence of culpable homicide will tantamount to murder even when the person committing the act does not intend to cause the death of the victim. Knowledge that the act is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death would be sufficient to make out a case of murder even when the offender did not have the intention to either kill or cause such bodily injury as was likely to cause the death of the person to whom the harm is caused. The court held that the appellant had not given any version leave alone a plausible one regarding the genesis of the incident. He had simply expressed ignorance about the incident which was unacceptable in view of the cogent evidence led against him. The court, therefore, concluded that the act of firing from the revolver was to the knowledge of the appellant so imminently dangerous that the appellant must be presumed to have known that it would, in all probability, cause death or such bodily injury as was likely to cause death.
18. Section 299 of the IPC defines culpable homicide. From a careful reading of the said definition, it is evident that an offence of culpable homicide is committed if death is caused by an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that the offender is likely by such act to cause death. Section 300 defines murder and sets out the situations in which culpable homicide will amount to murder except in cases covered by five exceptions to the said provision. We are not here concerned with the exceptions as the accused has not taken shelter under any one of them.
19. The short question that all the same needs to be examined is whether the appellant's act of causing death of the deceased tantamounts to an offence of murder as held by the trial court or any lesser offence as argued by Mr. Tulsi. Section 299 of the IPC is the genus of which murder is only a specie. Both sections 299 and 300 provide for situations in which death is caused by an act with the intention of causing death or with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused. Section 300 as also Section 299 also deal with cases where there is no intention of either causing death or a bodily injury likely or sufficient in the ordinary course of nature to cause death. They provide for situations in which the offender has the knowledge that he is likely by his act to cause death. The absence of intention to cause death or bodily injury as is likely or sufficient in the ordinary course of nature to cause death is not, therefore, conclusive of the matter. What needs to be seen further is whether the act is one where the offender must be deemed to have had the knowledge that he was likely by such act to cause death.
20. The facts and circumstances of the present case do not suggest any intention on the part of the appellant to cause the death of the deceased. It is not even the case of the prosecution that either because of any enmity or other provocation, the appellant could be said to have intentionally caused the death of the deceased or inflicted an injury which was likely or sufficient in the ordinary course of nature to cause death. What is argued by the prosecution and what has found favor with the trial court is that the appellant must be deemed to have had the knowledge that his act of firing from the revolver was so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death or atleast that the appellant had the knowledge that his act was likely to cause death. Reading Sections 299 and 300 in juxta position would make it clear that there is a significant difference in the language employed in the two provisions in so far as they refer to the knowledge of the offender regarding the nature of the act and the extent of the danger implicit in the same. In Section 299, the words used are "with the knowledge that he is likely by such act to cause death". In Section 300 Fourthly which deals with cases where the offence comprises knowledge of the offender, the words used are "if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death." There is, therefore, a marked difference in the language employed in the two provisions. The difference lies in the nature of the act and the likelihood of its causing death. In the case of an offence under Section 299, what is required is that the offender had the knowledge that he is likely by such act to cause death regardless whether or not the act is so imminently dangerous that it must, in all probability, cause death. Under Section 300, culpable homicide is murder only if the offender knew that his act is so imminently dangerous that it must, in all probability, cause death or such bodily injury as was likely to cause death. Illustration 'D' appearing under Section 300 of the IPC sufficiently indicates the kind of acts qua which the offender will be presumed to know that the same is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. It reads as under :
"A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual."
21. The impugned judgment appears to proceed on the premise that the appellant's act of firing from the revolver in the present case was comparable to firing of a loaded cannon into a crowd of persons so that he ought to have known that the said act is so imminently dangerous that it would, in all probability, cause death or such bodily injury as was likely to cause death. There is, however, no real basis for comparing the appellant's act of firing from the revolver in the facts and circumstances of the present case with a case where the offender fires a loaded cannon into a crowd of persons. The prosecution witnesses, even in their statements under Section 164, did not accuse the appellant of having fired into the crowd of persons constituting the marriage procession or the band party ahead of it. All that was stated was that the appellant was firing from his revolver which act, in the absence of any positive basis or indication from any quarter that the fire was directed towards the crowd and in total disregard for the safety of those comprising the same, could not bring the appellant's case under clause fourthly of Section 300 of the IPC. Suffice it to say that while the act of firing from the revolver in a place which is crowded by people may itself be a dangerous proposition, so long as the firing is not directed against the crowd, it will be difficult to describe the same as an act so imminently dangerous that it must, in all probability, cause death or a bodily injury that was likely to cause death. The court below was, in that view of the matter, in error in holding that the appellant's act tantamounted to culpable homicide amounting to murder.
22. That leaves us with the option of finding the appellant guilty either under Section 299 read with Section 304 of the IPC or Section 304A thereof. Section 304A, reliance whereupon was placed by Mr. Tulsi, reads as under :-
"Causing death by negligence - Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
23. A bare perusal of the above would show that the essential requirement for attracting Section 304A is that death must be caused by a rash and negligent act which does not otherwise amount to culpable homicide. It follows that before an offender can be found guilty under Section 304A, the court must examine whether the act of which he is accused amounted to culpable homicide for it is only if it did not that Section 304A would come into play. In other words, what amounts to culpable homicide cannot be dubbed or wished away as a rash or negligent act and punished lightly under Section 304A of the IPC.
24. That necessarily takes us back to the question whether the act of which the appellant was guilty amounted to culpable homicide even when he did not have any intention of causing the death of the deceased or the intention of causing any bodily injury to him as was likely to cause death. The prosecution, in this regard, argues that the appellant had the knowledge that his act of firing from the revolver without taking adequate safeguards and without proper care and caution was likely to cause death. Mr. Tulsi, on the other hand, contended that the appellant was firing in the air which was, according to him, safe and as it did not endanger anybody's life. Knowledge that the appellant's act was likely to cause death could not, therefore, be attributed to him. That being so, an essential requirement for an offence under Section 299 of the Code was missing in the process bringing the appellant's case under Section 304A.
25. The argument urged by Mr. Tulsi appears to be enticing at its face value but does not stand closer scrutiny. We say so for more than one reasons. In the first place, the circumstances in which three gun shots were fired from the appellant's revolver were best known to him and ought to have been explained. The appellant has not, however, done anything of that kind. He has, on the contrary, totally denied any knowledge about the incident and alleged that he has been falsely implicated. The evidence on record, as already noticed earlier, conclusively established that three gun shots had fired from the licensed revolver of the appellant, the empty cartridges whereof were recovered from the spot which were then compared with three other test fired cartridges in the CFSL at Chandigarh for the ballistic experts' opinion. The ballistic experts' opinion further conclusively proves that the crime bullet which killed the deceased was also fired from the very same weapon. The weapon was admittedly recovered from the house of the appellant. The appellant, in these circumstances, owed an explanation for it was he alone who could testify as to how the weapon had travelled from his house to the place of occurrence and was used for firing three shots one out of which killed the deceased. In the absence of any such explanation, the argument that the appellant was indeed firing in the air and that he did not have the knowledge that the said act was likely to cause death of any innocent in the crowd cannot be accepted.
26. That apart, if the shots fired from the weapon were really meant to be in the air, there was no possibility of any bullet so fired hitting a band man leading the procession. It is true that if a shot is fired in the air which implies a shot towards the sky in the open, it may be incapable of causing any serious harm to anyone including those standing in close proximity of the person firing. But if the fire is not really in the air or towards the sky, the person firing must be deemed to have the knowledge that he is likely, by such act, to cause death. The knowledge about the possible consequences of the act would depend upon the care which the offender has taken while committing the same. If the offender is guilty of an act which is in its very nature dangerous and from which knowledge about the likely consequences including death of a fellow human being can be attributed to him, the offence committed would be culpable homicide within the meaning of Section 299 and punishable under Section 304 part 2 and not one under Section 304A of the IPC. The explanation offered at the bar that shots were fired in the air is on the face of it false for the obvious reason that if that were really so, it could cause no harm to any one leave alone kill an innocent bystander. Mr. Tulsi's argument that the shots were perhaps fired while dancing to tunes being played by the band in which case a slight carelessness could also result in a mishap as it did in the present case, would appear sound only if such a case was set up by the defense at the trial. Nowhere has the defense suggested that the firing took place while the appellant was dancing in the crowd so that one little jerk from any other dancer could let the shot go in a direction not intended by the appellant. Suffice it to say that while the burden that rests on the prosecution never shifts, there are situations in which the defense set up by the accused would require articulation at the trial whether in the form of a specific case set up by him or in the nature of suggestions to the prosecution witnesses. The appellant has done neither of the two in the present case which cannot be helped or re-noticed at this stage. We have, in that view of the matter, no hesitation in rejecting the argument of Mr. Tulsi that the case at best makes out the commission of an offence punishable under Section 304A only.
27. The next question then is as to what is the appropriate sentence which can be imposed upon the appellant. An offence of culpable homicide not amounting to murder punishable under Section 304 part 2 may result in an imprisonment of either description for a term extending up to ten years, or with fine, or with both. Three circumstances, however, need to be kept in view while dealing with the question of sentence. The first is that the appellant is a family man barely 45 years old with a deaf and dumb daughter who suffers from multiple medical problems. The second is that the appellant has no previous history of involvement in any criminal case. The unfortunate incident that led to the death of an innocent band man also did not arise from any motive against the deceased or anyone else.
28. The third and an equally important circumstance is that the appellant has readily agreed to suitably compensate the aged parents of the deceased and deposited in this court a sum of Rs. 3,50,000/- in the form of two bank drafts in a sum of Rs. 1,75,000/- each drawn in the name of the father and the mother of the deceased Vikram. While loss of a member of the family cannot be compensated nor freedom bargained by an offender by paying compensation to the victim or his legal heirs, the readiness with which the appellant has come forward and deposited a substantial amount towards compensation for payment to the parents of the deceased is a significant circumstance that needs to be kept in mind. Section 357 of the Cr.P.C. provides for payment of compensation to the person who has suffered any loss or injury by reason of an act for which the accused has been sentenced to undergo imprisonment. This provision is a significant step forward in criminal justice system and sanctions a refreshingly new approach to the concept of reconciling the victim with the offender. The Supreme Court has in Hari Krishan and State of Haryana v. Sukhbir Singh and Ors. and Dr. Jacob George v. State of Kerala 1994 SCC (Cri) 774 recommended to all the criminal courts in the country to exercise the power vested in them under Section 357 liberally so as to meet the ends of justice in a better way. In Sukhbir Singh's case (supra), the court observed :
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 provisions 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 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. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.
29. The deceased Vikram has left his aged parents one of whom has filed an affidavit indicating broadly the income which the deceased was earning as a band man and from other sources. Considering the fact that the deceased and his parents came from an economically lower strata of the society, the present was, in our opinion, a fit case for the court to exercise its powers under Section 357. The court's job of determining the amount that would be just, fair and proper was made easy by the appellant offering to pay a sum of Rs. 3,50,000/- as indicated above which amount is, in our opinion, reasonable compensation having regard to the paying capacity of the appellant and the extent of loss suffered by the parents of the deceased. Taking all these circumstances into consideration, we are inclined to take a lenient view in regard to the imposition of the sentence to do complete justice between the parties.
30. In the result, we allow this appeal in part and alter the conviction of the appellant from Section 302 to Section 304 part 2 of the IPC and sentence him to undergo a rigourous imprisonment for a period of two years. Since the appellant is paying compensation to the legal heirs of the deceased, we do not impose any sentence of fine. We further direct that the amount of Rs. 3,50,000/- in the form of bank drafts deposited by the appellant in this court shall be disbursed by the Registrar Judicial to the parents of the appellant after proper identification as compensation in terms of Section 357 of the Cr.P.C. The impugned judgment and order shall stand modified accordingly.