Andhra HC (Pre-Telangana)
Sonti Rambabu @ Ramu, S/O Nancharaiah, ... vs State Of A.P. Represented By Public ... on 12 October, 2004
JUDGMENT P.S. Narayana, J.
1. A1, A2, A3 and A6 preferred the present criminal Appeal as against the judgment dated 23.9.1998 in Sessions Case No.114 of 1996 on the file of the Sessions Judge, Mahila Court, Vijayawada.
2.The case of the prosecution, in nutshell, is that A1 developed intimacy with M. Amareswari (P.W.1) an unmarried girl on 09.09.2004 by entering ! into her house during the absence of her parents and had sexual intercourse with her inducing her to accept the same and by making promise to marry her. It is also the version of the prosecution that A1 used to meet her secretly and used to have sexual intercourse with her making her to believe that he would marry her, and that during the month of May and June, 1994, there was missing of monthly periods of the said Amareswari (P.W.1) and then, she requested A1 to marry her. The mother of P.W.1 after scenting the intimacy between A1 and P.W.1 had sent P.W.1 away to her grand parents' house at Pedapudi. A1 continued to meet P.W.1 at Pedapudi also through one Tata Venu. On 10.6.1994, P.W.1 informed A1 at Pedapudi about her pregnancy and requested him to marry her immediately. On 11.6.1994, A1 offered her soda after mixing some tablets in it and asked her to take that soda, so that miscarriage takes place and after that he would marry her. Due to the said compulsion by A1, P.W.1 sipped soda containing tablets mixture, as a result of which she suffered miscarriage subsequently. On 21.6.1995, A1 took P.W.1 from Pedapudi to Vijayawada for marrying her at Kanakadurga temple after duly intimating the same to A2 to A6 and A2 to A6 came there in a taxi and took A1 and P.W.1 to Hanumanthapuram giving assurance that they would perform their marriage at Hanumanthapuram and also asked P.W.1 to go to her house and later, A1 slipped from the village as per the directions of A2 to A6. All the accused declared that the marriage between A1 and P.W.1 would not be celebrated as there was no intimacy between them in spite of the intervention of the village elders.
3.The X Metropolitan Magistrate, Vijayawada had taken the case as PRC No.33 of 1996 and the same was committed to the Court of Metropolitan Sessions Judge, Vijayawada. The learned Sessions Judge, Mahila Court, Vijayawada recorded the evidence of P.Ws 1 to 9 and marked Exs.P1 to P3 and Exs.D1 and D2 and ultimately, came to the conclusion that the prosecution est! ablished the guilt of A1 for the offence under section 313 and 417 IPC beyond reasonable doubt and also guilt of A2 to A6 under Section 109 read with Section 417 IPC beyond reasonable doubt and accordingly, convicted A1 to undergo rigorous imprisonment for a period of one year and to pay an amount of Rs.5000/- towards fine and from out of it, an amount of Rs.3,000/- shall be paid towards compensation to P.W.1-victim woman, in default in payment of fine, A1 shall undergo simple imprisonment for a period of six months under Section 313 IPC. For the offence under Section 417 IPC, A1 was also further directed to pay Rs.7,500/- towards fine and out of it, Rs.5,000/- shall be paid to P.W.1, in default in payment of fine, he shall undergo simple imprisonment for a period of six months. Likewise, for the offence under Section 109 r/w 417 IPC, A2 to A6 were directed to pay fine of Rs.7,500/- each, and Rs.5,000/- from out of the fine paid by each of them shall be paid to P.W.1 towards compensation, in default, in payment of fine A2 to A6 shall undergo simple imprisonment for a period of six months. Aggrieved by the same, the present Criminal Appeal was preferred.
4.Sri K. Venkateswalu, Counsel representing the appellants made the following submissions:
The learned Counsel had taken this Court through the relevant provisions of the Indian Penal Code viz., Sections, 313, 417 and 109 IPC and would contend that even if the evidence available on record to be taken into consideration, the ingredients of these offences had not been satisfied. The learned Counsel also would maintain that the only allegation made as against A2 to A6 is to the effect that there was a promise to see that the marriage of A1 would be celebrated with P.W.1 and subsequent thereto, there was breach of promise and the marriage was not further proceeded with and the same was not celebrated. Except this, nothing more had been spoken to in relation to A2 to A6. The learned Counsel also would further submit that except the evidence of P.W.1,! there is no other evidence available on record relating the alleged pregnancy or abortion thereof. The evidence of P.W.6 is very vague and at any rate, it cannot be said to be corroborative. The medical evidence also is absent as far as this aspect is concerned. The learned Counsel also, in alternative, would maintain that in the light of Section 313 IPC and the language employed therein read with Section 90 IPC, at the best it can be said that A1 convinced P.W.1 on the fateful day for the purpose of carrying out abortion with the fond hope that the marriage would be celebrated and nothing more and nothing beyond. In this view of the matter also, the ingredients of Section 313 IPC are not satisfied. The learned Counsel also further contended that there is evidence available on record that A1 was deeply interested with P.W.1 it being a love affair between teenagers at the relevant point of time and the very fact that he was inclined to proceed with the marriage would go to show that initially he had no intention or requisite mens rea of committing breach of promise and hence, the ingredients of cheating also are not attracted. The learned Counsel further would contend that the conviction of A2 to A6 under Section 417 read with Section 109 IPC also cannot be sustained.
5. Per contra, the learned Additional Public Prosecutor had taken this Court through the evidence available on record and would submit that it is no doubt true that there is no medical evidence in this direction, but the evidence of P.W.1 is definitely sufficient relating to the miscarriage. At any rate, it cannot be said that P.W.1 was consenting party to the abortion, which she had suffered. Inasmuch as the consent also, if any was obtained, only on the premise by A1 to have marriage, such consent definitely cannot be said to be given voluntarily and on the strength of the same, it cannot be contended that the ingredients of Section 313 IPC are not attracted. The learned Additional Public Prosecutor had also taken this Co! urt through the evidence of the mother of P.W.1 who was examined as P.W.4 and would submit that the evidence of P.W.4 is so natural and convincing and the same cannot be disbelieved. The learned Additional Public Prosecutor placed strong reliance on the evidence of P.W.6 and would contend that this evidence well corroborates with the evidence of P.W.1 relating to the miscarriage and in the facts and circumstances of the case, the learned Judge had arrived at the correct conclusion in convicting the accused and sentencing A1 to undergo rigorous imprisonment for a period of one year and also to pay fine and directing the other accused to pay fine amount. The learned Additional Public Prosecutor also would submit that this is a fit case where, instead of imposing the paltry amounts, discretion could have been exercised by the learned Judge in fixing the lump sum compensation amount.
6.Heard the Counsel at length, perused the evidence available on record and the findings recorded by the learned Judge.
7.The evidence of P.W.1 is crucial. The evidence of P.W.1, in brief, is as hereunder:
P.W.1 deposed that at the relevant point of time, A1 was a student and however, she does not know the particulars of his studies though she is literate. She also deposed that the incident had happened about three years ago and about one year prior to the incident, A1 was hurling small stones against her and she admonished him against his conduct, but he has continued such conduct towards her. Subsequently, Vinayaka Chavithi festival was celebrated in their village and on that day, her parents and her younger brother went to the temple as there was a Bhajana and she was all alone at her house and she was lying down and the time then was about 8.00 p.m. A1 entered the house, closed the doors and committed rape on her in spite of her protest. She deposed that when she was weeping, A1 stated that there was no need for her to weep so, that he would marry her and that if she reveals that incident to anybody, he would! kill her. Therefore, she did not reveal the incident to anybody. She further deposed that two days later, she questioned A1 about their marriage and he assured her that he would marry her after completing his studies. Later, as he assured of the marriage, he used to meet P.W.1 during the absence of her parents and she also used to talk with him willingly and they used to have sexual intimacy also. Later on, on May day festival, her parents went to the fields and he was all alone in the house, A1 came to her house and while he was leaving their house hurriedly, her mother, who was returning home observed him, and questioned P.W.1 why A1, who was not in the habit of visiting their house, came there, without answering her and that her father came and questioned her mother why she was beating and abusing her and then her mother told that she was not answering her enquiry as to why A1 came to their house. Later, she was sent to Pedapudi, place of her grandfather. Her grandfather's name is Gajula Veeraswamy. Tata Venu is the son of her maternal uncle. A1 used to meet Venu at his school and used to enquire about her. She used to go and meet A1 and used to question him about their marriage. A1 promised her that he would marry her soon and she was carrying 2nd month pregnancy by that time. She informed the same to A1 and then, he stated that if she accompanied him to a movie he would give her the date of marriage. She informed her grandmother that she was going to a movie and her grandmother permitted her to go there and she went to the cinema hall and A1 also came there and brought a soda for her and he mixed two or three tablets in the soda and she questioned about the said tablets. A1 told her that those tablets were meant for causing abortion and he further told her that if he was to marry her, she could not be carrying pregnancy, as the people would comment that he married a pregnant woman. She refused to take the tablets and pressed that A1 has to marry her. A1 threatened her that unless she! consumes the said tablets, he would not marry her. Therefore, she drank that soda and after the Matnee show, she went home and later she suffered from stomach ache. On the next day at 12 noon, she suffered from abortion and she has not informed her pain and suffering to her grandmother and she pretended to her that she was suffering from some head ache. After the abortion, she herself cleaned the mess to prevent her grand mother from noticing the same. On the next day, A1 came to Pedapudi and enquired her about her health. She questioned him about their marriage and he stated that he would say about it later. Likewise, he postponed the matter. Subsequent thereto, A1 came and stated to her that he would marry her at Kanaka Durga temple and asked her to come out of the house informing her grandmother that she was going to her parents' place. Accordingly, she accompanied him to Kanakadurgamma temple. A1 made her to sit near the banks of Krishna river at Kanakadurga temple. A1 was promising that he would marry her. A2 to A6 came there in a car and told her that A1 is the only son to his parents and she is the only daughter to her parents and that they would perform their marriage with A1informing her parents, stating so, brought her to Hanumathapuram and there, they threw her from out of the car and asked her to go to her house and went away. P.W.1 went home weeping and the time was 9.00 a.m. P.W.1 deposed that when her mother enquired her, she informed her as to what happened. Her mother went to meet her father and the accused are related to his maternal grandfather. Her parents and her maternal grandfather approached the accused to ask for marriage between her and A1. A2, A3 and other elders of their family including the other accused informed her parents and her grandfather that after Ashadamasam the marriage could be performed and later on coming to know the other alliances were being looked into for A1, her parents and grandfather went to question the accused. The accused informed that ! A1 would not marry P.W.1 and they all came to her house raising a galata and asked her parents to do what ever they can do. Her parents and grandfather raised a dispute before Paruchuri Venkateswarao, an elder to their village. The said elder called the accused and his parents and tried to mediate the dispute. Even before the said elder, A1 refused to marry her. Thereafter, she went to police station and gave oral report (Ex.P-1). The Police sent P.W.1 for medical examination. This witness was cross-examined at length. In cross-examination, P.W.1 deposed that it is not true to suggest that she did not state either in Ex.P-1 or to the police that A1 so hurled stones at her and she admonished him and that it is not true to suggest that she did not state either in Ex.P-1 or to the police that A1 entered into her house at 8.00 p.m., that he committed rape on her and that he threatened her that he would kill her, if she reveals the incident to anybody and it is not true to suggest that she did not state either in Ex.P-1 or to the police that A1 assured her that he would marry her after completing his studies. This witness also specifically deposed that it is true that since A1 expressed to her that he was treating her as his wife and that she is his wife only, she accepted his advances willingly including the sexual intercourse. It is not true to suggest that she did not state either in Ex.P-1 or to the police that she suffered abortion at 12 noon on the next day of the administration of the pills. Several other suggestions were also denied by this witness. It was also suggested to P.W.1 that " It is not true to suggest that my contention that A1 was after me is false and that I myself was after him, that I was pressurizing to marry me and to accompany me to the movies and to other places." No doubt, the said suggestion was denied. The other suggestions put to this witness had been specifically denied. This is the evidence of P.W.1.
8. P.W.6-Grandmother of P.W.1 deposed that her grand son! Venu informed her that P.W.1 and A1 met each other at the cinema hall and after P.W.1 returned home, she admonished her and on that day, at about 8.00 p.m., P.W.1 complained stomach and wept being unable to bear the said pain. She deposed that P.W.1 left her house stating that she was going to her house as she was wishing to see parents.
9. P.W.7 is the doctor, who had examined P.W.1 and he opined that P.W.1 was habituated to the sexual intercourse and the doctor also examined her to determine her age and was of the opinion that her age on that day was 18 years. Ex.P-2 is the certificate issued by P.W.7. Submissions at length were made on the strength of the evidence of P.W.7 that nothing had been deposed by P.W.7 relating to either the alleged pregnancy or the abortion thereof. As can be seen from the evidence of P.W.7, this aspect was not adverted to and this doctor P.W.7 is a male doctor.
10. P.W.2 -father of P.W.1 had deposed about all the details and also specifically deposed the incident about returning of his wife from the fields and scolding P.W.1 and when this witness questioned and he was informed about the observation made by his wife when A1 was hurriedly leaving the house.
11. P.W.3-grandfather of P.W.1 deposed that he knows A1 to A6 and they are all distantly related to him and this witness also corroborated the evidence of P.Ws 1 and 2 about series of events which had happened commencing from chiding of P.W.1 when the mother of P.W.1 had seen A1 hurriedly leaving the house up to the promise of A1 to marry P.W.1 and breach thereof.
12. P.W.4 is the mother of P.W.1, who specifically deposed about seeing A1 hurriedly leaving the house and suspecting something questioning P.W.1 why A1 came to the house at all and scolding P.W.1 and P.W.1 not giving proper answers and informing her husband and sending P.W.1 to the grandfather's house and all other subsequent events till giving of the report to the police. Certain suggestions were put to P.W.4, which had been denied by this! witness
13. P.W.5 is the elder, who mediated for the purpose of advising to perform marriage in between A1 and P.W.1 who belong to the same community. This witness specifically deposed that A2 expressed that he was not willing for marriage in between P.W.1 and his son and therefore, he informed the same to P.Ws 1 to 4 and advised them to do whatever they can.
14. P.W.8 is the cousin of P.W.1. This witness deposed that A1 came to him and asked him to convey P.W.1 to come to Kuchipudi centre as he was intending to talk to her and he passed on the said information to P.W.1. He further deposed that A1 took P.W.1 to a movie and from some distance, he observed her weeping while she was near cinema theatre and on one day as P.W.1 expressed that she was to go to her parents place, he accompanied her to the bus station and there P.W.1 and A1 together boarded the bus going towards Vijayawada.
15. P.W.9 is the Sub-Inspector of Police, who deposed about the details of investigation and filing of the charge sheet.
16. As per the evidence available on record, the following facts clearly emerge:
A1 and P.W.1 were neighbours and A1 was aged about 22 years and P.W.1 was aged about 18 years. A2 and A3 are the father and mother of the A1. A6 is the uncle of A1 and the other accused are also related to A1. The evidence of P.W.1 would clearly disclose that A1 developed intimacy with P.W.1 and it is the specific case as deposed by P.W.1 that on a day when others were not available in the house, A1 entered the house and against her consent committed rape. But subsequent thereto, promised to marry and he also threatened her that he would kill if the same is revealed to others. That is the commencement of the version of the prosecution. Submissions at length were made by the learned Counsel representing the appellants that in view of the subsequent conduct of A1, A1 had no requisite mens rea or intention of cheating or deceiving as on that date or subsequent thereto and hence, the ingredients of! Section 417 are not attracted. Strong reliance was placed on Hridaya Ranjan Pd. Verma v. State of Bihar, 2000 Crl. L.J. 2983 in this regard. Where, the Apex Court had an occasion to deal with the Breach of contract and offence of cheating. If series of events continuously are taken into consideration or examined, it is clear even from the evidence of mediator and also the conduct of A2 coupled with the subsequent conduct of A1 that they were bent upon not to proceed with the celebration of marriage.
17. Section 415 IPC dealing with Cheating reads as hereunder:
"Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation--- A dishonest concealment of facts is a deception within the meaning of this Section."
Section 417 IPC dealing with punishment for cheating specifies that "Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."
18. Hence, in the light of the clear evidence of P.Ws 1 to 4, 6 and 8 coupled with the evidence of elder-P.W.5, there cannot be any doubt or controversy that whatever may be the oscillating mind of A1 being a teenager, definitely all the accused were bent upon to see that the celebration of marriage between A1 and P.W.1 was not finalized, despite the series of events, which had been deposed by the prosecution witnesses. Hence, in the light of the facts and circumstances, this Court is of the considered opinion that the findings recorded by the learned Judge in this regard holding that A1 guilty under section 417 IPC and A2 to A6 guilty under Section 109 rea! d with Section 417 IPC cannot be found fault in any way and the said findings are hereby confirmed.
19. In relation to causing miscarriage, submissions at length were made. Section 312 IPC dealing with causing miscarriage reads that "Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with, imprisonment of either description for a term which may extend to three years, or with fine, or with both, and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years and shall be liable to fine.
Explanation: A woman who causes herself to miscarry, is within the meaning of this section."
Section 313 IPC causing miscarriage without woman's consent reads as hereunder:
"Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not shall be punished with imprisonment for life or with imprisonment of either description for a term, which may extend to ten years, and shall also be liable to fine."
Section 90 IPC dealing with consent known to be given under fear or misconception reads as hereunder:
"A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person-if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child - unless the contrary appears from the context, if the consent is given by a person who is under 12 years of age."
(i) In In re N. Jaladu 2 the Division Bench o! f Madras High Court held that "The expression " Under a misconception of fact" in Section 90 of the Penal Code is broad enough to include all cases where the consent is obtained by misrepresentation, and the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. A misrepresentation as to the intention of a person in stating the object for which consent, is asked is a misrepresentation of fact.
Consent obtained by misrepresentation or fraud cannot be availed of under the Penal Code to justify what otherwise would be an offence."
Hence, the consent obtained must be voluntary consent and not consent of the nature, which had been canvassed by the learned Counsel.
(ii) In Bodhisattwa Gautam v. Miss Subhra Chakraborty, 1996 (1) ALT (Crl.) 252 (SC) it is held that "While proceedings were pending before the Magistrate, the petitioner, a collage lecturer approached the High Court to quash proceedings and the High Court declined and the Supreme Court upheld order of High Court- Respondent, a girl student of petitioner and the love in first instance secret marriage and two abortions -Finally cheated by petitioner - Her complaint before the Magistrate for offences aforesaid.
It was held that the petitioner shall pay to respondent a sum of Rs.1,000/- every month as interim compensation during the pendency of the Criminal Case in the Court of the Judicial Magistrate, Kohima, Nagaland. He shall also be liable to pay arrears of compensation at the same rate from the date on which the complaint was filed till this date."
(iii) In Sekar v. State By Inspector of Police, 1995 (2) ALT (Crl.) 552 (Madras) it is held that "Consent known to be given under fear or misconception - The Revision Petitioner, according to the prosecution, raped the prosecutrix under threat and was continuing the sexual assault under promise of marrying her but when she became pregnant he denied access to her.
Does the promise of marriage amount to a misconception ? Doe! s Section 90 IPC come into play ?
The learned Single Judge of Madras High Court answered the same in the negative."
(iv) In Md. Naimatullah Habibi v. Sogra Bibi, 1997 Crl.L.J.706 it is held that "Where the Complaint was for offences under Sections 376 and 313 of IPC and Complainant, maid servant in family was ravished, raped and thereafter forced to terminate her pregnancy. She appears to be helpless victim in face of inevitable compulsion and not a consenting party. Court prima facie satisfied of the commission of alleged offence. Order taking cognizance offence need not be interfered with."
(v) In Md. Sharif v. State of Orissa, 1996 Crl.L.J. 2826 it is held that "Where the victim was an unmarried girl, gave her consent for termination of pregnancy to avoid social stigma and Complaint filed against accused-lover - Doctor and victim girl not arrayed as accused, but Accused had only accompanied her to nursing home. No evidence to show that pregnancy was terminated on his instructions -He cannot be held criminally liable for causing miscarriage - More so, when doctor had opined that termination was done to save girl's life - Act of termination would therefore fall within exception to Section 312 IPC."
(vi) In Moideenkutty Haji v. Kunhikoya, it is held that "While dealing with ingredients to Section 313 IPC held that where the only allegation in the complaint was that on hearing that the woman was pregnant the accused took her to a doctor who caused the abortion and there was no case that it was without her consent and, on the other hand, the averments showed that the woman willingly submitted herself to abortion and even thereafter she had sexual intercourse with the accused and there was nothing to show that abortion was at the instance of the accused and it was not clear from the allegations whether he was only accompanying the lady at her request and whether he even made a request to the Doctor to have abortion and the doctor who conducted the abortion was not made an! accused which showed that she had no complaint against him, it was clear that an offence under Section 313 was not made out."
20.To arrive at a conclusion whether the ingredients of Section 313 IPC have been satisfied in the present case, a careful scrutiny of the evidence of P.W.1, P.W.6, P.W.7 and P.W.8 would be necessary. P.W.1 specifically deposed that on the fateful day at the theatre, Soda mixed with tablets had been given and the fact that it was meant for abortion also had been brought to the notice of P.W.1 and though P.W.1 was not a willing party, under the threat that A1 would not marry her if the pregnancy was not terminated, she had consumed the same and subsequent thereto, she suffered with stomach ache and consequently abortion was caused. In nutshell this is the evidence of P.W.1.
21.P.W.6-grandmother of P.W.1 deposed that her grand son Venu informed her about P.W.1 and A1 meeting at the cinema hall and after P.W.1 returned home, she had admonished her and P.W.1 also complained stomach ache and wept since she was unable to bear the same. P.W.8 also had corroborated the evidence of P.W.1 and also P.W.6 to some extent in this regard. This is the evidence available on record on which the prosecution relied to satisfy the ingredients of section 313 IPC.
22.It is pertinent to note that in a matter of this nature, the medical evidence would play a very crucial role. P.W.7-male Civil Assistant Surgeon alone had been examined in case of termination of pregnancy and to detect the symptoms of abortion. It would be always suggestible and desirable that preferably, if P.W.1 could have been examined by a female doctor, inasmuch as the medical opinion relating to the private parts of P.W.1, would be more relevant in deciding the same. However, absolutely, there is no medical evidence as far as this aspect is concerned. The learned Additional Public Prosecutor, however, would submit that inasmuch as the evidence of P.W.1 is a natural and on the strength of the evidence of P.W! .1 alone, the conviction of A1 under Section 313 IPC also may have to be sustained. It may be due to passage of time also the medical evidence in this regard may fall into insignificance. Even on appreciation of the evidence available on record, in the light of the nature of evidence, which had been given by P.W.1, this Court is of the considered opinion that in the absence of corroborative medical evidence and in the light of the other vague evidence, just on the uncorroborated testimony of P.W.1 alone, it would not be safe to convict A1 under section 313 IPC. It is needless to say that on the strength of the scant evidence, conviction for a serious offence under Section 313 IPC cannot be sustained and hence, this Court is of the opinion that it is a fit case where benefit of doubt to be given to A1 as far as the charge under Section 313 IPC is concerned and accordingly acquittal is recorded against A1 for the offence under Section 313 IPC.
23.In view of the fact that A2, A3 and A6 are found guilty for the offence under Section 109 read with Section 417 IPC, the findings recorded by the learned Judge against them and the conviction and sentence imposed against them to pay fine of Rs.7,500/- and also the direction to pay Rs.5,000-/ from out of the fine paid by each of them to be paid to P.W.1 by way of compensation are hereby confirmed.
24.Powers of the Courts to award compensation to victims under Section 357 Cr.P.C. are not ancillary to other sentences but in addition thereto, it is a measure of responding appropriately to a crime as well as reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes and it is indeed a step forward in the criminal justice system.
(i) In Hari Singh v. Sukhbir Singh and Ors, the Apex Court observed that "Section 357(2) 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 re-assure 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 as 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. The Supreme Court recommended to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. 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 pay. If there are 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."
(ii) In State of H.P. v. Lekh Raj, the Apex Court while dealing with offence under Sections 376 and 323 IPC "While dealing with offence under Sections 376 and 323 IPC -Compensation to the victim - Accused, besides imprisonment, sentenced to pay a fine of Rs.5000/- and Rs.500/- under Sections 376 and 323 IPC respectively. In case of the amount being recovered, a sum of Rs.4,500/- directed to be paid to the victim."
(iii) In Sarwan Singh v. State of Punjab, 1978 Crl.L.J. 1598 10 it is held that "While dealing with the factors to be considered in award of compensation under section 357 Cr.P.C. it! was held that the object of the section 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. 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 to 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. 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 and other relevant circumstances in fixing the amount of fine or compensation."
For the offence punishable under section 417 IPC, A1 was directed to pay fine of Rs.7,500/- and from out of it, Rs.5,000/- to be paid to P.W.1-victim, in default in payment of fine, he shall undergo simple imprisonment for a period of six months.
25.In view of the foregoing discussion and in the light of the observations made in the aforesaid decisions, the imposition of fine of Rs.7,500/- and the direction to pay Rs.5,000/- to P.W.1-victim woman from out of the fine amount to be paid by A1 under Section 417 IPC are hereby set aside, with a view to enhance the compensation amount to be paid to P.W.1 by A1. It is made clear inasmuch as the imposition of fine amount is set aside by this Court with a view to enhance the compensation further to a tune of Rs.20,000/- to P.W.1, thus, P.W.1 is entitled to total compensation of Rs.27,500/-viz., Rs.7,500/- already paid by A1 and in addition thereto, an amount of Rs.20,000/-further fixed by the appellate Court. The amount of Rs.7,500/- already paid by A! 1 towards fine to be adjusted as part and parcel of this compensation amount. Apart from the amount of Rs.7,500/- already paid, an additional amount of Rs.20,000/- to be paid to P.W.1 towards compensation by A1 within a period of two months, in default thereof, A1 shall undergo rigorous imprisonment for a period of one year. This fixation of compensation in the considered opinion of this Court as appellate Court would be just and reasonable in the facts and circumstances of the case.
26. In the result, the conviction and the sentence imposed as against A1 under Section 313 IPC are hereby set aside and it is needless to say that A1 is entitled to refund of fine amount, if any paid, in relation to the charge under section 313 IPC.
27. The conviction imposed against A1 under section 417 IPC is confirmed and the sentence of imposition of fine awarded against him is modified and compensation is enhanced as specified in paragraph No.25.
28. The conviction and the sentence of imposition of fine against A2, A3 and A6 for the offence under Section 109 read with Section 417 IPC are hereby confirmed.
29. In all other particulars, except the modification and fixing the further amount of compensation payable by A1 in respect of the offence under Section 417 IPC, the findings recorded by the learned Judge are hereby confirmed.
30. Accordingly, the Criminal Appeal is partly allowed to the extent indicated above.