Rajasthan High Court - Jodhpur
Moti Ram @ Moti Lal vs State on 24 November, 2011
Author: Govind Mathur
Bench: Govind Mathur
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
J U D G M E N T
Motiram @ Motilal vs. State of Rajasthan
D.B.Criminal Appeal No.816/2007
against the judgment dated
23.8.2007 passed by Additional
Sessions Judge (Fast Track) No.2,
Bikaner in Sessions Case
No.83/2006.
Date of Judgment :: 24th November, 2011
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
HON'BLE MR.JUSTICE NARENDRA KUMAR JAIN-II
Mr. M.K.Garg, for the appellant.
Mr. K.R.Bishnoi, Public Prosecutor, for the State.
....
BY THE COURT : (PER HON'BLE MATHUR,J.)
REPORTABLE This appeal is preferred to question correctness of the judgment dated 23.8.2007 passed by the court of Additional Sessions Judge (Fast Track) No.2, Bikaner convicting and sentencing the accused appellant as under:-
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u/S.307 IPC - life imprisonment with a fine of Rs.1000/- and in default of payment of fine to further undergo one month's additional imprisonment.
u/S.326 IPC - life imprisonment with a fine of Rs.1000/- and in default of payment of fine to further undergo one month's additional imprisonment.
u/S.324 IPC - three years rigorous imprisonment with a fine of Rs.1000/- and in default of payment of fine to further undergo one month's additional imprisonment.
The facts of the case are that on 15.3.2006 at 08:00 PM Shri Jetharam (PW-2) submitted a written report (Ex.P/2) at police station Nokha with assertion that about 06:00 PM on the same day when he was providing water to the goats to quench their thrust at his home, he went out of street on hearing some talks in high pitch. He found that Motiram was indulged in quarrel with Purkharam. Motiram then moved quite rashly to his house and brought a "barchhi", whereby he gave 2-3 blows on the head of Purkharam with an intention to kill him. An injury was also received by Asuram on his left leg, when he tried to pacify the situation. At the time of incident a huge crowd including Bagharam, Shivnarain, Puraram, Girdhariram, Rajuram etc. were present. On intervention, assailant Motiram fled to his house. Injured Purkharam and 3 Asuram were taken to hospital. As per the report, Motiram was having illicit relations with wife of Purnaram, brother of Purkharam, and that was objected by Purkharam on several occasions. Thus, Motiram was keeping vengeance with him.
While acting upon written report police registered a case and commenced investigation. A police report then was filed, charges were framed for commission of offences punishable under Sections 307, 326 and 326 Indian Penal Code and on denial of the same trial commenced as desired.
The prosecution supported its case by getting testimony of 12 witnesses examined and by getting 20 documents exhibited. The accused while explaining adverse circumstances available in the prosecution evidence termed the same false and outcome of vengeance. He also defended himself with the aid of three witnesses (DW-1 to DW-3) and by getting five documents (Ex.D/1 to Ex.D/5) exhibited. The trial court held the accused guilty for all the charges after examining the evidence available.
In appeal, beside the other arguments on merits, much emphasis is given by learned counsel about the quantum of sentence with assertion that the same is disproportionate to the guilty established. 4
We have scanned the entire record and considered the arguments advanced.
Purkharam (PW-1) is the injured victim. This witness in most unambiguous terms stated that in the evening of the festival of Holi, when he was going to convey best wishes, Motiram came and gave "barchhi" blows on his head. As per this witness he remained indoor patient at Bikaner Hospital for a period of about one and half month, and during that he remained unconscious for about a month. He also pointed out that because of the injuries received he is having numbness in hands and legs and he is suffering from paralysis. Suffice to mention that the court while examining this witness noticed that he was not in position to move at his own and he was brought to the court with the aid of three persons. The witness was not even capable to stand. Sarva Shri Jetharam (PW-2) Asuram (PW-3) and Girdhariram (PW-10) all eye witnesses supported the prosecution case with a definite statement that accused Motiram gave "barchhi" blows on the head of Purkharam and an injury also occurred to Asuram at his knee due to "barchhi" blow given by the accused.
Dr. Anil Surana (PW-4), Medical Officer, Community Health Centre, Nokha, who initially examined injuries of Asuram and Purkharam verified the injury reports Ex.P/4 and Ex.P/5. As per Ex.P/4 Asuram was 5 having an incised wound measuring 6 x 1 x 0.75 cm on right thigh and as per Ex.P/5 injured Purkharam was having following injuries:-
(1)Incised wound 10 x 3 x bone deep on antero medial side of right knee obliquely.
(2)Incised wound 2 x 1 x 0.5 cm on medial side of left knee.
(3)Incised wound 16 x 4 x bone deep on right parietal region 7 cm above left ear.
Dr. L.N.Agarwal (PW-12) conducted surgery to treat injured Purkharam and as per this witness injured was having head injury in fronto-parietal region near midline, and below to that bone was fractured leaning downwards and the brain matter was flowing out. The injury was sufficient to cause death in ordinary course of nature. This witness opined that paralysis may occur in left side, in the event of having a head injury in right side.
On basis of the information given by the accused as per provisions of Section 27 of the Indian Evidence Act a "barchhi" too was recovered and that was having blood stains, matching with the blood group of the blood stains available on the shirt of injured Purkharam. The recovery aforesaid is adequately established by the prosecution.
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In view of the evidence discussed above we are having no doubt that the accused appellant assigned grievous injuries by "barchhi" to Purkharam and a simple injury to Asuram, on his left leg.
The issue deserves consideration now is the nature of offence committed by the accused appellant. To constitute an offence punishable under Section 307 Indian Penal Code, it is essential for prosecution to establish that the intention or knowledge of the accused was such as is necessary to constitute murder. To attract the provisions of Section 307 Indian Penal Code what is material is intention or knowledge with which the act was done. The nature of injury may be grievous or may be capable of causing death, but that only is not sufficient to attract the provisions of Section 307 Indian Penal Code. In a case even of simple injury, if the intention and knowledge to cause murder of victim is found, then the accused can very well be convicted for attempt to murder, however, in absence of such intention or knowledge, no conviction under Section 307 Indian Penal Code can be recorded.
In the case in hand such an intention is conspicuously absent in prosecution evidence. As per the proved document Ex.P/1 and the other evidence available, initially some quarrel took place between Motiram and Purkharam and then Motiram brought "barchhi" from his house whereby he gave blows to 7 Purkharam. As such, the injuries given were outcome of spur and heat of moment, without having any intention or knowledge to cause murder. As such, the conviction of the accused appellant under Section 307 Indian Penal Code is unsustainable.
So far as charge under Section 326 Indian Penal code is concerned, i.e. certainly established against the accused appellant, as he voluntarily caused a grievous hurt by dangerous weapon. Similarly, his guilt for an offence punishable under Section 324 Indian Penal Code is also established by sufficient evidence pertaining to voluntarily causing hurt by "barchhi" to injured Asuram.
The argument of learned counsel for the appellant regarding quantum of sentence now deserves consideration.
Suffice to note that the trial court while awarding life term imprisonment for the offences punishable under Sections 307 and 326 Indian Penal Code noticed pathetic physical condition of injured victim Purkharam. The trial court observed that only the sentence of life term imprisonment shall be appropriate to satisfy the agony faced by the victim, who is living in much worst condition than a dead. We are having all respects for the concern of the trial court about miserable physical conditions of the 8 victim, however, while awarding sentence the court is required to maintain a balance with the circumstances existing and the other ancillary objective conditions. The severest and maximum punishment should be given only when no other lenient mode is available, adequate and feasible looking to the facts of the case. So far as the intensity of agony suffered by a victim is concerned, the law take proper care of that to meet and melt the same. The agony of victim Purkharam could have been reconciled in better way by providing him compensation in addition to a reasonable sentence of imprisonment to the accused.
Section 357 Code of Criminal Procedure empowers the court to award compensation to victim while passing the judgment of conviction. Hon'ble Supreme Court in Manish Jalan v. State of Karnataka, reported in (2008)3 SCC (Cri) 456, while examining amplitude of Section 357 Cr.P.C., held as under:-
10. 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 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 9 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) ... ... ...
(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 10 the High Court or Court of Session when exercising its powers of revision."
11. 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-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.
12. 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 11 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 the results are not very heartening. On this aspect, Law Commission in its 42nd Report at para 3.17, inter alia, observed:
"3.17. 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."
13. 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: (SCC p. 558, para 10) "10 ... 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 12 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."
14. 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 entitled to, there could be no reason for the Court to direct such compensation. (See: Sarwan Singh & Ors. Vs. State of Punjab).
15. 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: (SCC p.545, para 38) 13 "38. 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 exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a judge."
In the case in hand accused and the victim were keeping vengeance for the reason already mentioned, therefore, some altercations and quarrel took place during which due to heat of moment accused rushed to his house and brought a "barchhi" and gave grievous blows. Unfortunately the blows given resulted into permanent disablement of the victim. The 14 circumstances in no manner demands maximum punishment though desires adequate compensation.
Having considered all these facts, we are of the considered opinion that a lenient view in awarding sentence should be taken while ensuring necessary care to reconcile the physical agony faced by the victim. An adequate compensation, thus, should be awarded to the victim, who is suffering permanent disablement. The compensation shall certainly be a quite effective course to melt and face the agony suffered. Before adopting this course, we inquired from learned counsel for the appellant about the economic status of the accused. Learned counsel, after availing instructions, conveyed that the accused, though is coming from lower economic strata, shall be able to arrange funds for payments of compensation. It is also stated that some relatives and well-wishers of the accused are ready and willing to assist him in collecting necessary funds.
Accordingly, this appeal is allowed in part. The conviction recorded and sentence awarded to the accused for the offence punishable under Section 307 Indian Penal Code is set aside. The conviction and sentence awarded for the offence punishable under Section 324 Indian Penal Code is affirmed. The conviction under Section 326 Indian Penal Code is also maintained. However, the sentence for life term 15 imprisonment with fine of Rs.1000/- is substituted by the imprisonment for a term of six years with a liability to pay a compensation to victim Purkharam in a tune of Rs.1,50,000/-. The compensation awarded is required to be deposited with the trial court by the accused within a period of one month from the date of his release from prison. In the event of failure to do so, the accused shall be liable to undergo three years rigorous imprisonment.
The trial court on receiving the amount of compensation shall pay the same to victim Purkharam in the form of a Fixed Deposit with a nationalized bank for a term of two years. Subsequent thereto, victim Purkharam shall be at liberty to utilise the money as per his will and wishes.
(NARENDRA KUMAR JAIN-II),J. (GOVIND MATHUR),J. Mathuria KK/ps.