Karnataka High Court
The State Through Cpi vs Laxmi W/O Durgappa on 20 April, 2022
Author: K. Somashekar
Bench: K. Somashekar
1
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF APRIL 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
CRIMINAL APPEAL NO.3628/2012
Between:
THE STATE THROUGH C.P.I.
DEVADURGA P.S., RAICHUR
REPRESENTED BY ADDL. STATE
PUBLIC PROSECUTOR, GULBARGA. ..APPELLANT
(By Sri Sharanabasappa M Patil, HCGP)
And:
LAXMI W/O DURAPPA
AGE: 55 YEARS
OCC: COOLIE, R/O CHINCHOLI
TQ: DEVADURGA
DIST: RAICHUR. ... RESPONDENT
(By Sri Iswaraj S Choudapur, Advocate
Amicus Curiae for accused)
This appeal is filed under Section 378(1) and (3)
Cr.P.C. praying to grant leave to appeal against the
judgment and order of acquittal dated 15.3.2012 passed
by the Fast Track - I at Raichur in Sessions Case
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No.37/2011 acquitting the accused-respondent for the
offence punishable under Sections 302 and 307 IPC.
This appeal being heard and reserved on
06.04.2022, coming on for pronouncement of judgment
this day, K.Somashekar J. and Anant Ramanath
Hegde J., delivered the following:
JUDGMENT
This is an appeal by the State challenging the judgment of acquittal, dated 15.03.2012, rendered by Fast Track Court - I at Raichur. The sole accused is acquitted for the offences punishable under Sections 302 and 307 IPC.
2. The facts narrated in the complaint filed by Huliappa s/o Ramaiah Chaluvadi are as under:
The complainant is an agriculturist residing in Chincholi Village, Taluk Raichur. He had four brothers viz., Durgappa, Mariyappa, Shankar and Gurunath. It is stated that all the brothers were residing separately. It is alleged that the complainant's brother's wife Laxmi used to insist the complainant's brother Mariyappa, to cultivate the land. The complainant's brother Mariyappa refused to cultivate the land stating that there is no money to take care of 3 family expenses and he would earn money from coolie work and thereafter would cultivate the land. This being the position, on 17.11.2010, Laxmi had threatened Mariyappa that in case the land is not cultivated by him, she would kill him, his wife and his children by setting the fire. It is further stated that the neighbours Basappa, Sabaiah, Shivappa and Durgappa who heard Laxmi's threat had pacified Laxmi stating that Mariyappa would cultivate the land. On that day, however, Mariyappa did not cultivate the land and went out to do coolie work.
It is further alleged that on 18.11.2010, around 1.00 'O'clock, midnight, the complainant and neighbours heard a screaming sound and they found that Mariyappa and his wife Mallamma and daughters Basamma and Radhika were set on fire and Laxmi ran away after seeing the complainant and neighbours named above. It is further stated that Mariyappa, Mallamma, Basamma and Radhika who had sustained burn injuries were immediately admitted to the hospital. Around 6.45 p.m. on 19.11.2010 4 Basamma, aged 6 years died. The complainant's brother Mariyappa died on 20.11.2010 around 5.30 a.m. Later, Mallamma - the wife of Mariyappa also died on
03.12.2010. The complaint alleged that Laxmi poured kerosene on the complainant's brother Mariyappa, his wife Mallamma and two children Basamma and Radhika and committed murder by setting them ablaze at around 1.00 a.m. on 18.11.2010.
Based on the complaint, FIR was registered on 18.11.2010 by Jalahalli Police in Raichur and an investigation was carried out. After recording the dying declarations of Mariyappa, Mallamma and Basamma and after citing other witnesses, a charge sheet is laid against Laxmi for the offences under Sections 302 and 307 of IPC.
3. The committal Court acting under Section 209 of Criminal Procedure Code, 1973 (hereinafter referred to as the 'Code' for short) committed the case to the Sessions Court at Raichur in terms of an order dated 07.03.2011. 5 The case is registered as S.C.No.37/2011 before the Court of Fast Track-I at Raichur.
4. After hearing the Public Prosecutor and the counsel for the accused, the charges were framed for the offences under Sections 307 and 302 IPC. The accused did not plead guilty and claimed to be tried.
5. During the trial, 17 witnesses were examined on behalf of the prosecution as PWs 1 to 17 and 30 documents were marked as Ex.P.1 to P.30. Six material objects were marked as MOs 1 to 6. Section 313 Cr.P.C. statement was recorded based on incriminating materials on the record. The accused denied the incriminating circumstances against him. However, no evidence is led on behalf of the accused.
6. After hearing the learned Public Prosecutor and the learned defence counsel, the learned Sessions Judge acquitted the accused on the ground that the prosecution failed to establish the guilt of the accused. 6
7. Being aggrieved by the judgment of acquittal, the State is in appeal urging various grounds.
8. Heard Sri. Sharanabasappa M Patil learned High Court Government Pleader and Sri. Ishwaraj S. Chowdapur, who is appointed as Amicus Curiae to defend the accused.
9. The prosecution is relying on the dying declaration of Mariyappa which is said to have been recorded by PW16 - ASI Ramulu, in the hospital, between 10 a.m. and 11 a.m., on 18.11.2010. According to the prosecution, around 7.00 a.m., on 18.11.2010, when he was the Station House Officer, PW.16 received intimation from Raichur Hospital, relating to a medico-legal case and he reached the hospital around 9 a.m. after informing the jurisdictional Circle Inspector. It is also stated by him that the jurisdictional Taluka Executive Magistrate was informed by the hospital relating to the incident. He further states that he has given requisition to record the dying declaration. The evidence reveals that according to PW16, 7 the dying declaration of Mariyappa was already recorded at 9.00 a.m. by the Taluk Executive Magistrate. He further states that he has recorded dying declaration between 10 a.m. and 11 a.m. and the same is marked at Ex.P.7. The High Court Government Pleader has also referred to Ex.P.16 and 18 the dying declarations recorded by the Doctor, would urge that the case of the prosecution is established from the aforementioned dying declarations.
10. It is also urged by the appellant that the motive behind the commission of the offence is established by the prosecution. Referring to the complaint averments it is urged that the neighbours who are cited as witnesses in the charge sheet namely Basappa, Saibayya and Shivappa have seen the accused-Laxmi threatening the complainant's brother that she would kill his family members if the complainant's brother does not work in the field.
11. By referring to the evidence of the Doctor and the Executive Magistrate who recorded the dying 8 declaration, it is urged that the prosecution has proved the case against the accused beyond all reasonable doubt. It is the submission of the learned High Court Government Pleader that the Sessions Judge has ignored all these materials on record and erroneously acquitted the accused.
12. Sri. Ishwaraj Chowdapur, appearing for the accused as amicus curiae would submit that the prosecution has failed to prove the case against the accused beyond all reasonable doubt. It is submitted that the dying declarations relied upon by the prosecution are not at all the dying declarations in the eye of law. The suspicious circumstances surrounding the so-called dying declarations do not inspire confidence to place reliance on them. It is further submitted that the dying declarations are not bearing the signatures of the declarants. It is also submitted that the Doctor has not issued any certificate relating to the mental fitness of the persons who have suffered extensive burn injuries and the prosecution claims that said persons have given dying declarations. 9
13. It is also submitted by the learned counsel for the respondent, the motive attributed by the prosecution is not established. It is also submitted that there is serious doubt as to the scene of the offence, in as much as at one place, it is alleged that the incident has taken place inside the house and in another place, it is alleged that incident has taken place in the courtyard. It is also submitted that there is a contradiction relating to the courtyard as well. At one breadth the prosecution contends that the incident has taken place in the courtyard of the victims and at another breath, it is contended that the incident has taken place in the courtyard of the brother of the deceased - Mariyappa. Based on these submissions the learned counsel would urge to dismiss the appeal.
14. This Court has considered the submissions made at the Bar. Considered the evidence on record and also perused the impugned judgment.
15. The learned Sessions Judge while deciding the case, posed a question to himself as to whether the death 10 of Mariyappa, Mallamma and Basamma is homicidal or accidental. The dying declarations of Mariyappa and Mallamma marked at Exs.P.16 and 18 are analysed by the learned Sessions Judge. The learned High Court Government Pleader would place heavy reliance on Exs.P.16 and P.18 - the dying declarations and also Ex.P.11 - the alleged statement of deceased Mariyappa said to have been recorded by PW 16 - ASI Ramulu. In Ex.P.11 statement which is said to have been recorded on 18.11.2010, Mariyappa is said to have given a statement that accused Laxmi insisted Mariyappa to plough the land and he declined to plough the land. He states that he went to do coolie work and after returning from coolie work, he was sleeping in the courtyard of his house along with his wife and two children. The accused around 1.00 a.m., came and poured kerosene and lit the fire. It is further stated that the victims started screaming and saw Laxmi near the victims. It is further stated that PW7 - Basappa, PW8 - Durgappa, PW10 - Shivappa and Sabaiah came 11 there and doused the fire and also saw Laxmi running away from the scene of the offence.
16. The learned Sessions Judge has analysed the evidence of PW16 - ASI and has noted that according to the statement of PW16, while recording the dying declaration, PW2 - Dr Ashok and PWs 7 to 10 were also present in the hospital. While referring to evidence of PW7, the learned Sessions Judge has noted that PW7 is not in a position to state the timing of arrival of police to the hospital. PW7 in his evidence has not stated anything relating to the recording of the statement of Mariyappa. PW7 further states the police came to the hospital at 10 am and 11 am on 17.11.2010. The learned Sessions Judge has also noted why the statement of Mariyappa was not recorded when four police personnel had come to the spot as per the statement of PW7. PW7 in his cross- examination has also stated that evidence of all the witnesses are recorded by the police simultaneously on 18.11.2010 itself. However, according to the prosecution 12 the statements were recorded on 19.11.2010. The learned Sessions Judge has also noted the discrepancy in the evidence relating to the duration in recording the statements of the victims as per the evidence of PW7. PW7 has also stated in his evidence that the recording of statements went up to 1.00 p.m. However, Ex.P.11 - the endorsement reveals that the statement was recorded between 10 a.m. to 11 a.m.
17. Analysing the evidence of PW 9 - Gurunath, the learned Sessions Judge has taken note of the admission of Gurunath wherein he says that he has not heard the conversation between Mariyappa and the accused relating to the cultivation of land, refusal on the part of Mariyappa to cultivate the land and consequent threat by Lakshmi to eliminate Mariyappa and his family. PW 9 - Gurunath has also stated in the cross-examination that the police have not recorded the statement of other witnesses and he has contradicted the statement of PW16 who says he has recorded the statement of Mariyappa 13 between 10 to 11 a.m. The learned Sessions Judge has also raised serious doubt as to why Ex.P.11 does not reveal the statement of Mariyappa alleged to have been recorded before the recording of statement at Ex.P.11.
18. It is also noticed by the learned Sessions Judge that neither PW 7 - Basappa nor PW 8 - Durgappa have stated anything about the presence of the accused near the house of Mariyappa. PW8 also states that evidence of Durgappa was recorded after the death of Mariyappa. PW8
- Durgappa has pleaded ignorance relating to evidence of Mariyappa recorded by police. PW 9 - Gurunath in his evidence states that the police from Jalahalli and Devadurga came to the hospital at noon and recorded the statement of Mariyappa. This contradiction relating to the recording of statement as per Ex.P.11 is taken note of by the learned Sessions Judge and the learned Sessions Judge has disbelieved Ex.P.11.
19. It is the case of PW 16 - ASI that after investigating the matter in part, he has handed over the 14 investigation to the jurisdictional CPI. The learned Sessions Judge is of the view that there is no evidence as to when exactly and at what stage the investigation was handed over to CPI.
20. The evidence of Dr Ashok - PW2 is analysed by the learned Sessions Judge. Ex.P.2 is the certificate issued by PW2 - Dr Ashok. The Doctor did not give any evidence relating to the injury sustained by Mariyappa, Mallamma and Basamma. He has stated relating to the injury sustained by Radhika. Under the circumstances, he was once again summoned by the prosecution to give evidence. Dr Ashok in the cross-examination admits that he has not sent any intimation relating to a medico-legal case. In the cross-examination, the doctor has admitted that he has not given any certificate stating that the patients were in a position to give a statement.
21. PW 15 - another doctor, who has examined Basamma, Mallamma and Mariyappa, states that he has taken 45 to 60 minutes to treat each of the patients and 15 he has not seen either Tahsildar or any police officer recording any statement. It is further stated in his evidence that none of them asked for the report relating to the physical and mental fitness of the victims to give the statement.
22. Under these circumstances narrated above, the learned Sessions Judge has doubted Ex.P.11 - the alleged dying declaration of Mariyappa who is said to have received 100% burn injuries. Again, referring to the evidence of P.W.16, the learned Sessions Judge has taken note of the fact that PW16 has admitted that the condition of Mariyappa was serious but his fingers were not burnt. He has also admitted that doctors were not present while recording the statements of Mariyappa. it is further admitted that the fitness certificate of the doctor is not obtained before recording the statement.
23. PW 14 is the jurisdictional Tahsildar and the prosecution claims that the declaration of Mariyappa and Mallamma is recorded by the Tahsildar and the same are 16 marked at Exs.P.16 and P.18 respectively. Admittedly, the declarations at Ex.P.16 and Ex.P.18 do not bear the signatures of the victims. The Tahsildar has given evidence to the effect that the fingers were burnt and the thumb impression of the victims was not taken for this reason. However, ASI - PW16 in his statement at Ex.P.11 claims that the thumb impression of Mariyappa is taken.
24. PW13 - Mohammed Alim, the police personnel who was said to be on duty on 17.11.2010 stated that he came to know about the incident, and he had arranged to send an ambulance to the scene of the offence. However, PW16 says that Mohammad Alim was not on duty on 17.11.2010 and claims that he was on duty. Because of this inconsistency and contradiction, the learned Sessions Judge has disbelieved the statement of ASI - PW16.
25. In paragraph No.38 of the Judgment, the learned Sessions Judge has referred to the judgment reported in 2011 Crl.Law Journal 4762 (VADDE PALLEPU 17 SEKHAR vs STATE OF ANDHRA PRADESH). In the light of the principle laid down in the judgment, the dying declaration of the Tahsildar is analysed by the learned Sessions Judge. The medical records marked at Exs.P.22 to 24 reveal that the victims were brought to the hospital between 7 am and 7.55 am. According to Dr Ashok who is examined as PW2, the Tahsildar came to the hospital at 8.10 am and the dying declaration of Mariyappa and Mallamma was recorded by Tahasildar. PW2 - Dr Ashok does not say anything about his presence at the time of the recording of the dying declaration by the Tahsildar. However, the doctor has signed Ex.P.16 and Ex.P.18 - the dying declarations. At the same time, the doctor has admitted that he has not given any certificate certifying the fitness of injured Mariyappa and Mallamma to give a statement. Because the victims have suffered 100% burn injuries, the learned Sessions Judge has doubted the statements of deceased Mariyappa and Mallamma. It is also forthcoming from the evidence of PW.15 - Dr Prabhuraj has treated Mariyappa and Mallamma. 18 However, Dr Prabhuraj has not given any certificate certifying the fitness of Mariyappa and Mallamma to give a statement. The Tahsildar has not secured the certificates of Dr Prabhuraj.
26. The dying declarations Ex.P.16 and Ex.P.18 are carefully analysed by the learned Sessions, Judge. The discrepancies in Ex.P.16 and Ex.P.18 are noticed by the trial Court. The declarations at Ex.P.16 and Ex.P.18 do not mention the particulars relating to requisition for recording dying declaration. The Tahsildar in his evidence has given contradictory versions as to the persons who were present at the time of recording dying declarations. In one breath he says Mariyappa's brothers were present and, in another breadth, he says none was present except the nurse while recording the dying declarations. Even the dying declarations of Mariyappa and Mallamma are not consistent with each other as to the place of the incident. Mariyappa says that the incident took place in his brother's 19 house. However, Mallamma says the incident took place at her house.
27. By analysing the evidence referred to above and noticing the discrepancies and contradictions, the learned Sessions Judge has rightly given the benefit of doubt in favour of the accused. There is no infirmity or error in appreciating the evidence on record. There are no grounds whatsoever to take a different view than the view taken by the learned Sessions Judge. Under the circumstances, the appeal has to be dismissed.
28. Accordingly, the appeal has to be dismissed confirming the judgment of acquittal of the trial Court. Order Under Section 357A of Code of Criminal Procedure, 1973
29. Radhika the 8 year old child has survived this tragic incident. She lost her parents as well as her elder sister. Though three persons have died, the State is not able to place evidence before the Court to prove the guilt 20 of the accused. The learned Sessions court has not passed any order under Section 357A of the Code relating to compensation payable to the victim.
30. Section 357A of the Code is amended in 2009. Section 357-A is extracted hereunder:
357A. Victim compensation scheme.-
(1) Every State Government in coordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Services Authority, or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the Victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.21
(5) On receipt of such recommendations on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.
31. Section 357A introduced in the Code in terms of Act 5 of 2009, is a victim-centric provision which aims to compensate the victims of the crime by providing an inexpensive and effective mechanism. Unlike Section 357, the recommendation to pay compensation to the victim is not dependent on the verdict of guilty. This is apparent from the bare reading of the provision. Even in the event of acquittal or discharge of the accused, there can be a recommendation for compensation under S.357A of the Code.
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32. Compensation is rehabilitation and victim-centric. It is not based on conviction and dehors the result of the main proceeding. This is the social philosophy and legislative implication. Failure on the part of the prosecution to secure a conviction for want of evidence or any other reason is not a ground to deny compensation to the victim of a crime. From the combined reading of Sections 357 and 357A of the Code, it can be concluded that the Court needs to answer three questions before passing appropriate orders under Section 357A of the Code:
a) Whether the person is a victim of a crime or not?
b) Whether compensation is to be awarded in favour of the victim or not?
c) Whether compensation can be recovered from the accused?
If the answers to the question (a) and (b) are 'yes' and the answer to question (c) is 'No' then there must be a recommendation to the District Legal Services Authority or the State Legal Services Authority for payment of 23 compensation as provided under Section 357A (2) & (3) of the Code.
33. It is also important to note that in case where the Court is dealing with Section 357A of the Code, in a situation where there is an acquittal or a discharge, then there is no need to dwell on the question (c) referred above. In case of an acquittal or a discharge, there is no liability on the accused to pay the compensation. In such an event, the liability is on the welfare State.
34. Even before the introduction of Section 357A of the Code, Section 357 conferred the jurisdiction on the Criminal Courts to pay compensation. The expression "whole or any part of the fine recovered to be applied"
found in Sub-section (1) of Section 357 restricted the power of the Court to award compensation from the fine amount imposed. Though various penal laws provided for payment of fine, the fine amount prescribed under the penal laws was not substantial. The fine amount prescribed under the Indian Penal Code, 1860 was 24 substantial in the 19th century. Hower the money value has eroded to a great extent since then. Failure on the part of the State to enhance the fine amount by way of suitable amendment to the penal law providing for fine, to bring the fine amount to a realistic level, made the provision relating to fine appear symbolic. It was not adequate to provide appropriate compensation under Section 357 of the Code. Though sub-section (3) of Section 357 conferred the jurisdiction on the criminal Courts exercising the powers under the Code to pay the compensation to the victim, the said provision was seldom invoked as observed by the Apex Court in HARI SINGH vs SUKHBIR SINGH reported in 1988(4) SCC 551. Even otherwise, said provision can be invoked only in the event of a conviction. The plight of the victim in cases ending in acquittal was not addressed at all.
35. 154th report of Law Commission of India having noticed the plight of the victims not getting adequately compensated and also taking into consideration the 25 concept of victimology gaining ground across various jurisdictions recommended amendment to the Code and accordingly, Section 357A came to be inserted vide Act No.5 of 2009.
36. In addition to awarding appropriate punishment to the offender, the concept of justice in its fold also includes the component of payment of adequate compensation to the victim for his rehabilitation. Punishing an offender without adequately compensating the victim of a crime, does not amount to complete justice. For the justice to be meaningful and complete, in addition to imposing appropriate punishment provided under law, the plight of the victim must necessarily be taken into account and appropriate compensation is to be paid to the victim for his or her rehabilitation. Every endeavour permissible under the law is to be made by the Court to mitigate the pain and wipe the tears of the victim. It is more so if the victim is a minor. The Court needs to extend its compassionate arm to the victim if a victim is a minor. 26 Looking into the welfare object behind Section 357A of the Code, which is apparent from the text of the provision, this Court is of the opinion that the Magistrate and Sessions Judge while delivering final judgments after completion of the trial, must pass a reasoned order as to whether there is a need to make a recommendation for payment of compensation for the rehabilitation of the victim of a crime or not.
37. The Hon'ble Apex Court in the matter of Ankush Shivaji Gaikwad V/s. State of Maharashtra ( 2013 (6) SCC 770 ) extensively discussed the scope and the application under Section 357 of the Code. Interpreting the word "may" appearing under Section 357 of the Code, the Hon'ble Apex Court in the aforesaid judgment has held that the duty is cast upon the Court to apply its mind to the question of awarding compensation in every criminal case.
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38. The Division Bench of this Court had the occasion to consider the scope of Section 357 and Section 357A of the Code in the following matters:
(i) In the case of THE STATE OF KARNATAKA, POLICE SUB-INSPECTOR, PATTANAYAKANAHALLI POLICE STATION, SIRA TALUK vs RANGAWAMY reported in ILR 2015 KAR 4879 has held that the compensation can be awarded by the appellate Court in exercise of power under Section 357A of the Code.
(ii) In the case of STATE OF KARNATAKA, by THE POLICE SUB-INSPECTOR, MOODABIDRI vs MR VISHWANATHA DEVADIGA AND ANOTHER reported in ILR 2019 Kar. 4643 has issued certain guidelines for the application of Sections 357 and 357A of the Code.
39. Section 357A of the Code comes into the picture when the Court finds that the compensation payable under Section 357 of the Code is inadequate. The expression "whenever recommendation is made by the Court for compensation" appearing in Sub-Section 2 of 28 Section 357A of the Code would necessarily mean that the Court has a duty to consider whether the compensation is to be paid to the victim or not.
40. The expression "whenever a recommendation is made by the Court for compensation" found in Sub-section (2) of Section 357A of the Code and the expression "If the Trial Court, at the conclusion of the trial, is satisfied that the compensation awarded under Section 357 of the Code is not adequate for such rehabilitation," found in sub- section (3) of Section 357A, on meaningful construction would lead to the conclusion that the Court has to decide as to whether there is need for recommendation to pay compensation to the victim. The provision focuses its attention on the victim of a crime, whose interest till the 2009 amendment was not adequately taken care of by the State other than prosecuting the case on behalf of the victim. The provision does not confer any discretion on the Court to ignore Section 357A of the Code. If the Court does not pass any order under Section 357A of the Code then the said provision would be a dead letter and it 29 defeats the very object behind Section 357A of the Code. Such omission violates the right to life guaranteed under Article 21 of the Constitution of India. Victim of a crime is entitled to know whether he/she is entitled to compensation or not? In either case, he must know the reasons. Adjudication of criminal cases without reference to Section 357A of the Code where there is a person who is a victim of a crime is antithetical to the concept of victim compensation envisaged in Section 357A of the Code.
41. However, as a word of caution it is to be observed that the Trial Court before recommending compensation under Section 357A of the Code should ensure that the scheme is not misused to claim compensation by registering the false criminal cases. Whenever the Court finds that the Crime has not taken place and there is no victim of the crime, then there cannot be a recommendation to pay the compensation.
42. In the instant case, though the accused is acquitted, there is no denial of the fact that Radhika - the 30 victim of the accident has lost her parents and elder sister at the tender age of 8. Under the circumstances, this Court is of the opinion that victim Radhika is entitled to compensation under Section 357A of the Code.
43. In terms of the mandate under Sub-section (2) of Section 357A of the Code, the Court may recommend the District Legal Services Authority or the State Legal Service Authority for compensation to be paid to the victim. The word 'Court' referred to under Sub-section (2) of Section 357A includes trial Court as well as appellate Court.
44. On receipt of such recommendation by the Court, the District Legal Services Authority acting under sub-section (5) of Section 357A of the Code has to hold an enquiry to determine the compensation payable to the victim. The scope and nature of enquiry are spelt out in the 'The Karnataka Victim Compensation Scheme, 2011' ('Scheme 2011' for short). As per the mandate of sub- section (1) of Section 357A of the Code, the Government 31 has come out with a scheme called 'The Karnataka Victim Compensation Scheme, 2011'. Clause 6 of the said scheme prescribes the eligibility criteria for grant of compensation. Clause 7 deals with the procedure for grant of compensation. In terms of the said Clause, the compensation can be granted based on a recommendation made by the Court or based on an application by the victim. Such an exercise must be carried out within two months. Sub-Section (3) of Section 357A also provides for rehabilitation and payment of compensation to the victim.
45. It is also relevant to note that in terms of the directions of the Hon'ble Apex Court issued in the case of NIPUN SAXENA AND ANOTHER vs UNION OF INDIA AND OTHERS reported in (2019)13 SCC 719, a scheme called, 'The Compensation Scheme for women victims/survivors of sexual assault/other crimes, 2018' (for short 'scheme, 2018') is established. In terms of the guidelines dated 05.01.2021 issued by Karnataka State Legal Services Authority, the guidelines issued in the 32 scheme, 2018 are to be followed while awarding compensation.
46. In the instant case, the victim was aged 8 years at the time of the incident. Now, she is aged 15 years. Admittedly, she is a minor. No application is filed on behalf of the victim seeking compensation. Clause 9 of the scheme provides that the application seeking compensation shall not be entertained after twelve months from the date of crime. However, the power is conferred on the District Legal Services Authority to condone the delay for sufficient reasons, if the claim is made beyond the prescribed period of twelve months. However, from a reading of sub-section (2) of Section 357A, no time limit is prescribed for the Court to make recommendations for rehabilitation and compensation.
47. Under the circumstances, this Court is of the opinion that Radhika, who is now aged 15 years and who lost her parents and elder sister at the tender age of 8, 33 should be compensated appropriately as per the provisions of the Karnataka Victim Compensation Scheme, 2011.
48. It is also necessary to add here that Radhika is minor. The minor's interest is to be protected. If there are no guardians to protect the interest of the minor, the District Legal Services Authority shall take the necessary steps to open the account in the name of minor Radhika and to deposit the compensation payable to Radhika. Clause 15 of the scheme, 2018 shall be followed to the extent possible.
49. The District Legal Services Authority shall determine the compensation payable to minor Radhika in terms of the guidelines prescribed under The Karnataka Victim Compensation Scheme, 2011 and also 'The Compensation Scheme for women victims/survivors of sexual assault/other crimes, 2018'.
50. Since Radhika is now aged 15 years, it is also required to ascertain under whose care and custody she is at present. If the District Legal Service Authority after 34 enquiry contemplated under sub-section (5) of Section 357A of the Code concludes that Radhika needs rehabilitation or that her interest is not adequately safeguarded by the present defacto guardian if any, then jurisdictional District Legal Services Authority shall make suitable orders for rehabilitation of Radhika and the jurisdictional District Legal Services Authority shall also ensure that compensation payable to Radhika is utilised for the benefit and welfare of Radhika.
51. Hence, the following:-
ORDER a. Criminal Appeal No.3628 of 2012 is dismissed. Consequently, the judgment of acquittal dated 15.03.2012 passed by the Fast Track Court-I at Raichur in Sessions Case No.37/2011 is confirmed.
b. The Karnataka State Legal Services Authority shall decide on the quantum of compensation payable to victim-Radhika under the Karnataka Victim Compensation 35 Scheme, 2011 and also 'The Compensation Scheme for women victims/survivors of sexual assault/other crimes, 2018' on proper identification.
c. The copy of this order shall be sent to the Member Secretary, The Karnataka State Legal Services Authority and the jurisdictional District Legal Services Authority for further action in terms of this judgement.
d. Necessary action shall be taken within 2 months by the jurisdictional District Legal Services Authority as contemplated under sub-section (5) of Section 357A of the Code and the action taken report shall be submitted to the Karnataka Legal Services Authority for reference.
e. Registry shall pay Rs.10,000/- as honorarium to learned advocate Sri.Iswaraj S Choudapur, who appeared on behalf of the accused as Amicus Curiae.36
f. Copy of the Judgment is marked to the Director, Karnataka Judicial Academy for reference and circulation.
Sd/-
JUDGE Sd/-
JUDGE Brn