Punjab-Haryana High Court
Attar Singh & Others vs State Of Haryana on 1 July, 2013
Bench: Jasbir Singh, G.S.Sandhawalia
CRA No.318-DB of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA No.318-DB of 2002
Date of decision: 01.07.2013
Attar Singh & others ....Appellants
Versus
State of Haryana ....Respondent
CRR No.1666 of 2002
Date of decision: 01.07.2013
Dharamvir ....Petitioner
Versus
State of Haryana & another ....Respondents
CRR No.1667 of 2002
Date of decision: 01.07.2013
Dharamvir ....Petitioner
Versus
State of Haryana & others ....Respondents
CRR No.1668 of 2002
Date of decision: 01.07.2013
Dharamvir ....Petitioner
Versus
State of Haryana & others ....Respondents
CRA No.488-MA of 2002
Date of decision: 01.07.2013
State of Haryana ....Appellant
Versus
Kailash Singh & others ....Respondents
CRA No.318-DB of 2002 -2-
CRR No.44 of 2004
Date of decision: 01.07.2013
Smt.Suman ....Petitioner
Versus
Om Parkash & others ....Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mrs.Baljit K.Mann, Advocate, for the appellants/petitioner
(in CRA No.318-DB of 2002 and CRR No.44 of 2004).
Mr.Kapil Aggarwal, Advocate, for the petitioner
(in CRR No.1666 to 1668 of 2002).
Mr.G.S.Chahal, Addl.A.G., Haryana, for the appellant
(in CRA No.488-MA of 2002 as well as for the State
in appeals and revision).
****
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. Whether to be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes **** G.S.SANDHAWALIA J.
1. This order shall dispose of CRA No.318-DB of 2002 filed by the 6 appellants against the judgment of Additional Sessions Judge, Rewari dated 30.03.2002 arising out of FIR No.266 dated 10.10.1998 under Sections 302/323/325/148/149 IPC Police Station Khol wherein appellant No.1, Attar Singh had been sentenced to undergo life sentence and to pay a fine of `2,000/- and in default, to further undergo RI for a period of 2 years under Section 302 IPC. He was further been sentenced to 3 years RI and pay a fine of `1000/- and in default, to further undergo RI for a period of 6 CRA No.318-DB of 2002 -3- months under Section 325 read with Section 149 IPC and RI for 6 months under Section 323/149 IPC. Appellant No.2, Kailash was released on probation for a period of 2 years after being convicted under Sections 325/323/149 IPC whereas Bhur Singh (non-appellant) and Mahabir Singh, appellant No.3 were sentenced to undergo RI for a period of 3 years 5 months (the period already spent by them in custody) and a fine of `1000/- under Section 325 read with Section 149 IPC and to further undergo RI for a period of 6 months in case of default and for 6 months RI under Section 323 read with Section 149 IPC. Appellants No.4 to 6, Suman, Ramkala and Shakuntla, being ladies, were released on probation for a period of 2 years after being convicted under Sections 325/323/149 IPC since appellants No.4 & 5 had spent 3 months in custody and appellant No.6 had spent 1 month in custody.
2. The complainant-Dharambir has filed CRR No.1666 of 2002 praying for enhancement of sentence of Attar Singh, whereas CRR No.1667 of 2002 was filed for enhancing the sentence of Bhur Singh (who was sentenced to undergo RI for 3 years 5 months and has already undergone the period of custody and has not preferred an appeal) and Mahabir Singh. Similarly, CRR No.1668 of 2002 has been filed by Dharambir for enhancing the sentence upon Kailash, Suman, Ramkala and Shakuntla who were released on probation. The State filed CRA No.488-MA of 2002 challenging the findings of the trial Court whereby Kailash, Bhur Singh and Mahabir Singh had been absolved from under Section 302 IPC. CRR No.44 of 2004, filed by the complainant, Smt.Suman in FIR No.267 dated 11.10.1998 whereby Om Parkash, Jag Ram, Ram Saran and Krishan, in FIR CRA No.318-DB of 2002 -4- No.266 dated 10.10.1998, were acquitted, arising out of the cross-case, is also subject matter of challenge.
3. The genesis of the occurrence which is alleged to have taken place on 09.10.1998 at 6 p.m. in Village Chita Dungra under Police Station Khol in District Rewari in which Siri Ram son of Dev Karan was done to death was on the ground that Jag Ram and Om Prakash sons of Sunda Ram, the complainant party on one side and Attar Singh and Kailash sons of Ram Dev, the accused party on the other side had a dispute qua plot regarding which there was litigation inter se before the Assistant Collector, Rewari. Due to the dispute between these two sets of parties, the father of the complainant, Siri Ram became a victim of the said rivalry. The statement on the basis of which the FIR was lodged by the deceased's son, Dharambir reads as under:
"Statement of Dharamvir S/o Siri Ram by caste Ahir R/o Chita Dungra, aged about 37 years, Stated that I am resident of above address. I am agriculturist. There is a dispute among our neighbourers on a plot, Jag Ram and Om Parkash sons of Sunda Ram by caste AhirR/o Chita Dungra being on one side and Attar Singh and Kailash sons of Ramdev by caste Ahir R/o Chita Dungra on the other side.Once on 25.9.98 we had accompanied Jag Ram and others to Police Post Kund in connection with that dispute. Because of that reason Attar Singh and others have become inimical towards us. Yesterday i.e. on 9.10.98 at about 6.00 p.m., when myself and my father Siri Ram were sitting in our house, suddenly we heard a noise coming from out side and thus we both came out side of our house and saw that infront of the house of Krishan PTI, on the road Jag Ram and Om Parkash sons of Sunda Ram were being attacked by Attar Singh and Kailash sons of Ram Dev, Bhoor Singh S/o Indraj, Mahavir S/o Ram Narain, Suman W/o Rama CRA No.318-DB of 2002 -5- Nand, Ram Kali W/o Subhash Chand, Shakuntla W/o Raja Ram, Gindori W/o Ram Narain by caste Ahir all residents of Chita Dungra, with lathies. Krishan PTI was also present. When myself my father Siri Ram and Krishan PTI intervened to rescue the injured, on which Attar Singh gave a Lalkara that helpers (intervenors) be also taken to task and that they should not escape. Attar Singh inflicted a lathi blow on the left side of the head of my father. Simultaneously Kailash gave a lathi blow on the forehead of my father. As a result, my father fell down. Bhoor Singh gave a lathi blow on the right side of head and Mahavir gave a lathi blow on the left side of the back and one lathi blow on the arm of my fallen father. The movement myself and Krishan PTI intervened to rescue my father, Attar Singh inflicted a lathi blow on my head and Kailash gave a lathi blow on my left hand. Mahavir gave a lathi blow on my left leg while Bhoor Singh inflicted a lathi blow on my right hand. Krishan PTI was given a lathi blow by Mahavir on the left leg. Jag Ram and Om Parkash were given lathi blows by Attar Singh, Kailash, Mahavir, Bhoor Singh, Suman, Ram Kali, Shakuntla and Gindori. Numerous villagers gathered on the spot. After separation, I with the help of Gajraj and Krishan PTI, arranged a vehicle and when I was shifting my father Siri Ram to the hospital at Rewari, he (my father Siri Ram) breathed his last on the way as a result of the injuries sustained by him in the occurrence. Above named Attar Singh and others have, in prosecution of their common object, murdered my father Siri Ram and have also caused injuries to me, Jag Ram, Om Parkash and Krishan PTI. Legal action be taken. I have heard the statement which is correct.
Sd/- Dharamvir. Attested Sd/- Basant Pal ASI,
10.10.98."
4. The said statement (Exhibit PT) was recorded by Basant Pal, ASI, in-charge of Police Post Kund, Police Station Khol on 10.10.1998 at 2 a.m. on receiving a message that the dead body of Siri Ram was lying in the CRA No.318-DB of 2002 -6- General Hospital, Rewari. The medico legal report of Dharamvir also showed 4 injuries on his person with blunt weapons whereas Om Parkash and Jag Ram sons of Sunda Ram had suffered 7 injuries each with blunt weapons whereas Krishan Kumar had suffered 1 injury with blunt weapon.
The said information was converted into FIR at 3.30 a.m. on 10.10.1998 and sent to the Illaqa Magistrate and the SHO, Police Station Khol, Bharat Bhushan, PW13, thereafter, took up the investigation of the case and he conducted the inquest proceedings with respect to the dead body of Siri Ram (Exhibit PX). After recording the statements of the witnesses, the investigating officer went to the spot and inspected the same and took the blood stained earth vide memo Exhibit PY and also prepared the rough site plan (Exhibit PZ) of the place of occurrence. Thereafter, he arrested Attar Singh, appellant No.1 on 11.10.1998 and effected the recovery of lathi on his disclosure statement (Exhibit PD) and Bhur Singh and Mahabir Singh were arrested on 13.10.1998 and recoveries were got effected on their disclosure statements (Exhibits PU & PV) whereas Suman, Shakuntla and Gindori (one of the accused who died during trial) were arrested on 20.10.1998 by him.
5. The cross FIR No.267 dated 11.10.1998 was registered at the instance of Suman by Bharat Singh, SI, SHO, Police Station Khol and the same reads as under:
"Statement of Smt.Suman W/o Rama Nand by caste Ahir R/o Chita Dungra, aged 25 years. Stated that I am resident of above address. I am a house wife. On 9.10.98 at about 6.00 PM. Myself and Ram Kala wife of Subhash R/o Chita Dungra were fetching water from water tap (water khel) when Siri Ram S/o Dev Karan by caste Ahir R/o Chita Dungra exhorted that these CRA No.318-DB of 2002 -7- RAANDS (widows) be taught a lesson. In the meanwhile Jag Ram S/o Sunda Ram, Om Parkash S/o Sunda Ram, Ram Saran S/o Mehar Chand, Krishan S/o Mehar Chand by caste Ahir R/o Chita Dungra reached there, Jag Ram inflicted a blow with Jelly on my head while Ram Saran gave a lathi blow on the head of Ram Kala. We raised an alarm. In the meanwhile Om Parkash inflicted a blow with axe (kulhari) on the right elbow of the Ram Kala and Jag Ram gave a Jelly blow on the right hand of Ram Kala. Attar Singh s/o Ram Dev intervened to rescue us and at that time Krishan inflicted a blow with axe on his head. Ram Saran and Jag Ram and Ram Kala inflicted more injuries to Ram Kala. In this occurrence both the parties received injuries. Several persons gathered on the spot. My husband Rama Nand and brother-in-law Subhash took me, Ram Kala and Attar Singh to the hospital in a tempo. The cause of this fight was that Jag Ram and Om Parkash are having dispute with us over a plot since long. Because of that enmity the injuries were caused to us. Action be taken.
Statement has been heard which is correct. RTI Suman. Attested Sd/- Bharat Singh, SI SHO, PS: Khol 11.10.98."
6. On the basis of the statements of the prosecution witnesses and after taking into consideration the defence version of the accused party who examined as many as 8 witnesses, the trial Court came to the conclusion that the prosecution had been able to prove its case and the manner in which the occurrence had taken place. The injuries sustained by the injured had been explained and the trial Court, accordingly, rejected the plea that the accused were entitled to the benefit of doubt and that the evidence advanced by the prosecution was not reliable and trustworthy. The right of private defence was also rejected as it was noticed that false medical reports were sought to be prepared by the accused. However, the applicability of Section 149 IPC CRA No.318-DB of 2002 -8- was rejected regarding the second part of the occurrence in which the deceased-Siri Ram had been assaulted along with Om Parkash, Dharambir and Krishan. Accordingly, it was held that Siri Ram died as a result of head injuries which were caused by Attar Singh and injury No.2 which was commuted fracture of left parietal bone was inflicted by a lathi and was fatal in nature. Attar Singh was also held liable for injury to Jag Ram and injury No.1 on the anterior part of left parietal area of scalp in the form of a lacerated wound to Dharamvir, the complainant apart from causing injuries to Om Parkash. It was further concluded that the medical evidence supported the ocular version and that Jag Ram suffered 3 fractures with blunt weapons, regarding the fracture of the 7th and 9th rib fracture on the left and right side of the chest respectively and also at the head of the 5th metacarpal of the left hand which was proved by PW5, Dr.Karan Singh. Suman was held liable under Section 323 IPC and Ram Kala had caused simple hurt with lathi along with Shakuntla and were held to be liable under Section 323 IPC. Bhur Singh had cause simple injuries to the complainant on his right hand whereas Mahabir caused simple injuries to Dharamvir and PTI Krishan. Accordingly, they were sentenced as noticed in the opening para of the judgment.
7. In the cross case lodged on the next day, the trial Court came to the conclusion that the accused party (in the cross case) had received far more serious injuries and Siri Ram, father of Dharamvir had died in the said incident and the complainants had managed the false report to prepare false case and projected fracture on the skull of Suman on the strength of a medical report given by Karan Singh and an enquiry had also been conducted by Dr.H.R.Yadav, Senior Medical Officer, Civil Hospital, CRA No.318-DB of 2002 -9- Rewari wherein allegation made by Dharamvir etc. were found to be true. The re-medico-legal examination of injured Suman, Ram Kala and Attar Singh had been ordered on the said persons but they had refused to be medico-legally examined and accordingly, the accused therein had been acquitted.
8. Counsel for the appellants in CRA No.318-DB of 2002 has, accordingly, submitted that the present case was a result of free fight and there was no intention to cause death of Siri Ram who was only an intervenor and only a single blow which was grievous in nature had been inflicted which had caused the death and thus, the conviction of Attar Singh, appellant No.1 under Section 302 IPC was not sustainable. It was further submitted that as per the cross-case, the water was being fetched by the ladies and there was a dispute pending in which the deceased was not involved and thus, there was never any common intention to cause the death of Siri Ram.
9. Counsel for the State and counsel for Dharamvir, on the other hand, submitted that the trial Court had taken a lenient view while releasing Kailash on probation and sentencing Attar Singh and Mahabir Singh only for a period of 3 years and 5 months under Section 325/149 IPC and under Section 323 IPC for a period of 6 months whereas the ladies, Suman, Ram Kala and Shakuntla had been wrongly released on probation.
10. After hearing counsel for the parties and going through the records of the case, it would be clear from Ex. PDD, order of the Assistant Collector-I, Rewari dated 03.09.2001 that there was a dispute between Jag Ram and Raja Ram sons of Ram Dev on the one hand with Gaj Raj, Om Prakash and Jag Ram sons of Sunda Ram on the other hand regarding an CRA No.318-DB of 2002 -10- encroachment. That Jag Ram and Raja Ram had filed a complaint before the Block Development and Panchayat Officer who had given a report dated 16.08.1998 (Ex. DQ) that Gaj Ram and Om Parkash sons of Sunda Ram had merged the passage in their plot and blocked the common passage and these documents were proved by the statements of DW4 and DW6, Rajender Singh, Ahlmad to the Deputy Commissioner and Hari Singh, retired Block Development and Panchayat Officer. The FIR also specifically mentions regarding the said dispute. Thus, it would be clear that the appellants had attacked Jag Ram and Om Parkash, in front of the house of Krishan and had a motive for doing so due to the dispute of the plot. The deceased and his son, Dharamvir who also came to the spot had intervened to stop the free fight along with Krishan and in the ensuing melee, appellant No.1, Attar Singh inflicted a lathi blow on the left side of the head of Siri Ram whereas Kailash, appellant No.2 gave a lathi blow on his forehead whereas Bhur Singh (non-appellant) gave a lathi blow on the left side of the head and Mahabir Singh, appellant No.3 gave a lathi blow on the left side of the back and another lathi blow on the arm of the fallen Siri Ram. The injuries received by Siri Ram in the said incident, as per the postmortem report (Ex. PBB), read as under:
"1. A lacerated wound 1.5 cms x 1.2 cms on the fore- head, on the left side, 2 cms above the left eye brow. Clotted blood was present. Ragged margins.
2. Diffuse swelling on left parietal region on dissection blood was present in sub cutaneous region, comminutted fracture of left parietal bone was present. Underline left parietal lobe was lacerated surrounded by massive haemotoma (clotted) about the size of a fist. On exploring further fracture of base of skull was present.CRA No.318-DB of 2002 -11-
3. Diffuse swelling on right parietal region on exploration sub cutaneous haemotoma was present. Bone intact on right side.
4. Diffuse swelling on left side of back. Thorago lumbar region. Blackish pink coloured.
5. Diffuse swelling on the right hand dorsum was present."
11. As per the statement of PW14, Dr.M.K.Narang, all injuries except injury No.2 were simple in nature and the deceased was around 70- 75 years of age. A perusal of the site plans (Ex. PS & PZ) would also go on to show that the house of Krishan PTI, who was also injured in the incident, has been shown opposite the water khel where the alleged incident is supposed to have taken place and thus, substantiates the FIR in which it has been specifically mentioned that Dharamvir, Siri Ram and Krishan PTI had gone to stop the attack on Jag Ram and Om Parkash. Thus, the common intention to cause the death of Siri Ram was never in the mind of Attar Singh and he had no motive to cause a fatal blow in order to kill Siri Ram. The deceased who was an aged person, became unwittingly a victim of the circumstances between a dispute inter se the two parties who were fighting over a plot of land. The investigating officer, Bharat Singh SI, PW13 also, in his deposition, stated that when he had gone to the spot, the persons gathered there told him that it was a case of free fight and he had gone there for its investigation. This aspect has, unfortunately, been ignored by the learned Additional Sessions Judge who, while sentencing Attar Singh, had come to the conclusion that the injuries inflicted by him would fall within the ambit of Section 302 IPC.
12. A perusal of the injuries which are reproduced above would also show that only one of the said injuries was grievous injury which CRA No.318-DB of 2002 -12- caused the death of the deceased and though the prosecution has tried to put forward the plea that Siri Ram and his son had accompanied Jag Ram to the Police Station, Kund in connection with the dispute of the plot and it was for that reason Attar Singh had became inimical towards them. But there is nothing on record to show that Siri Ram and Dharamvir had, at any stage, gone along with Jag Ram and others to the Police Post in connection with the dispute due to which Attar Singh might have nursed a grudge in his mind. Thus, the submission of the counsel for the appellants that it was a free fight inter se two parties is with merit and Siri Ram, being only a mere intervenor, had suffered the injuries due to which he had died and there was no motive as such to commit his murder and his conviction under Section 302 IPC cannot be sustained.
13. The Hon'ble Apex Court in Ghapoo Yadav & others Vs. State of M.P. 2003 (1) R.C.R. (Criminal) 827 held that where injuries are sustained in a sudden quarrel without any pre-meditation and without any cruel intention and from the infliction of the injuries it could be shown that there was a sudden quarrel, then Section 304 would be clearly applicable. Accordingly, in the said case, the sentence was altered to 10 years under Section 304 Part I. The relevant paragraph reads as under:
"12. In the case at hand, out of the seven injuries, only injury No.2 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. The infliction of the injuries, and their nature proves the intention of the accused appellants, but causing of such injuries cannot be termed to be either in a cruel or unusual manner for not availing the benefit of Exception 4 to Section 300 IPC. After the injuries were inflicted the injured has fallen down, but there is no material to show that thereafter any injury was inflicted when he was in helpless CRA No.318-DB of 2002 -13- condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused appellants had come prepared and armed for attacking the deceased. The previous disputes over land do not appear to have assumed characteristics of physical combat. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in cruel or unusual manner. That being so, Exception 4 to Section 300 IPC is clearly applicable. The fact situation bears great similarity to those in Sukhbir Singh v. State of Haryana, 2002(2) RCR (Crl.) 57 (SC) : 2000 (3) SCC 327). Appellants are to be convicted under Section 304 Part I, IPC and custodial sentence of 10 years and fine as was imposed by the Trial Court would meet the ends of justice. The appeal is allowed to the extent indicated above.
Appeal allowed."
14. The Hon'ble Apex Court recently in Rampal Singh Vs. State of Uttar Pradesh (2012) 8 SCC 289 has elaborated the distinction between culpable homicide which amounts to murder and when not and held that the Court has to perform the delicate functions by applying the provisions of Indian Penal Code to the facts of the case to clearly demarcate as to what category of cases the case in hand falls and accordingly, punish the accused by keeping in mind whether there was any intention of causing death. In the said case, it was held that the accused who had a dispute with the deceased, had gone from the spot and had open fire from the roof on account of dispute regarding throwing of garbage on provocation by the deceased which had hit the deceased in his stomach and ultimately resulted in his death and accordingly, it was held that the accused was serving in the Indian Army and aimed the shot at the lower part of the body and and the appellant had committed the offence without any pre-meditation. Accordingly, the CRA No.318-DB of 2002 -14- appellant's conviction under Section 302 IPC was converted into 304 Part I IPC. The relevant observations read as under:
"22. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed.
23. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section 304 is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. It is neither advisable nor possible to state any straightjacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused."
15. In similar circumstances, in Abdul Nawaz Vs. State of West Bengal 2012 (6) SCC 581, the conviction under Section 302 was altered to one under Section 304 Part I on the ground that there was a sudden quarrel and the appellant had assaulted the deceased and pushed him into the sea CRA No.318-DB of 2002 -15- which had eventually resulted in his death as he was only interested in having his dinghy back.
16. The abovesaid judgments are fully applicable to the facts of the present case and accordingly, the sentence of Attar Singh is modified to one under Section 304 Part-I IPC for a period of 10 years.
17. However, keeping in mind the fact that Dharamvir has filed CRR No.1666 of 2002 seeking enhancement of the sentence and fine awarded to Attar Singh, we are of the opinion that the fine imposed on Attar Singh needs to be suitably enhanced under Section 357(3) Cr.P.C. in order to compensate his legal heirs for the loss caused to them on account of untimely death of Siri Ram. The Hon'ble Apex Court in Hari Singh Vs.Sukhbir Singh & others (1988) 4 SCC 551 has held that the Courts should liberally exercise its power towards compensation while passing the judgment of conviction and the power is step forward in the criminal justice system and is to be exercised liberally. It has been further held that the order may be enforced by imposing sentence in default. Relevant portion of the judgment reads as under:
"10. 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 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 CRA No.318-DB of 2002 -16- 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 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.
11. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to 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 installments, may also be given. The Court may enforce the order by imposing sentence in default."
The said view has been followed by the Hon'ble Apex Court in Vijayan Vs. Sadanandan K. & another 2009 (2) RCR (Criminal) 969 and Roy Fernandes Vs. State of Goa & others (2012) 3 SCC 221. In the latter case, the conviction awarded to the appellant under Section 302 read with Section 139 was modified as sentence under Section 323 and 325 and the appellant was directed to pay a sum of `4.5 lacs. The observations of the Hon'ble Apex Court read as under:
"39. Section 357 of the Code of Criminal Procedure embodies the concept of compensating the victim of a - crime and empowers the courts to award a suitable amount. This power, it goes without saying, shall be exercised by the Courts having regard to the nature of the injury or loss suffered by the victim as also the paying capacity of the accused. That the provision is wide CRA No.318-DB of 2002 -17- enough to cover a case like the present where the appellant has been found guilty of offences punishable under Sections 323 & 325 of the IPC has not been disputed before us. Indeed Mr. Luthra relied upon the provision and beseeched this Court to invoke the power to do complete justice short of sending the appellant back to the prison. Mrs. Subhashini also in principle did not have any quarrel with the proposition that the power was available and can be exercised, though according to her, the present being a gross case of unprovoked violence against law abiding citizens the exercise of the power to compensate the victims ought not to save accused from suffering a deterrent punishment warranted under law."
In R.Mohan Vs. A.K.Vijaya Kumar (2012) 8 SCC 721, Hon'ble Apex Court has further held that in case the compensation is not paid as imposed under Section 357, a separate sentence can be imposed qua imprisonment for default in payment of compensation. The relevant portion of the judgment reads as under:
"29. The idea behind directing the accused to pay compensation to the complainant is to give him immediate relief so as to alleviate his grievance. In terms of Section 357(3) compensation is awarded for the loss or injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order, directing compensation, is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non-observance. The whole purpose of giving relief to the complainant under Section 357(3) of the Code would be frustrated if he is driven to take recourse to Section 421 of the Code. Order under Section 357 (3) must have potentiality to secure its observance. Deterrence can only be infused into the order by providing for a default sentence. If Section 421 of the Code puts compensation ordered to be paid by the court on par with CRA No.318-DB of 2002 -18- fine so far as mode of recovery is concerned, then there is no reason why the court cannot impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine under Section 64 of the IPC. It is obvious that in view of this, in Vijayan, this court stated that the above mentioned provisions enabled the court to impose a sentence in default of payment of compensation and rejected the submission that the recourse can only be had to Section 421 of the Code for enforcing the order of compensation. Pertinently, it was made clear that observations made by this Court in Hari Singh are as important today as they were when they were made. The conclusion, therefore, is that the order to pay compensation may be enforced by awarding sentence in default."
18. Accordingly, the compensation is enhanced to `50,000/- which is to be paid by Attar Singh to the legal heirs of the deceased Siri Ram and in case of default, Attar Singh shall undergo further 1 year sentence in addition to the sentence imposed under Section 304 Part-I IPC for a period of 10 years.
19. The findings of the trial Court regarding the sentences imposed on other appellants are upheld as there is sufficient eye witness account in the form of the injured witnesses, namely, Dharamvir PW8, Om Parkash PW9 and Jag Ram PW10 which are corroborated with the medical evidence suffered by the said persons and which has been proved by the statements of PW5, Dr.Karan Singh and PW6, Dr.O.P.Dabas, Medical Officers, General Hospital, Rewari. It is settled proposition that the statements of injured witnesses are not to be discarded and in the present case, one of the witnesses is the son of the deceased and therefore, would have no reason to depose contrary to the facts as his effort would be to ensure that the accused CRA No.318-DB of 2002 -19- who are involved in the death of his father would be suitably punished for the crime they had committed.
20. The trial Court has also, in the cross case in FIR No.267 dated 11.10.1998, given valid reasons to justify the acquittal of Om Parkash, Jag Ram, Ram Saran, Krishan and come to the conclusion that it was the appellants who were the aggressors and inspite of the fact that Suman had suffered no fracture on her head, the evidence was created to lodge the FIR and in an attempt to save themselves from the criminal liability of FIR No.266 dated 10.10.1998. A perusal of the statement of Dr.H.R.Yadav PW 18 would go on to show that he was appointed the enquiry officer by the then Civil Surgeon on the complaint of Dharamvir and it was found that the allegation made in the complaint was correct as per his enquiry report (Ex.PZ) wherein he came to the conclusion that the skull fracture of Smt.Suman was shown despite there being no fracture and which was the proof of utter negligence of Dr.Karan Singh. Similarly, it was held that there was no fracture on the hands of Smt.Ram Kala and the fracture was shown with the motive to entangle the other side and false serious allegations would have put the other side to face great injustice. Similar is the deposition of Dr.P.K.Paliwal, Associate Professor, Department of Forensic Medicines, PGIMS, Rohtak (PW16), before whom the accused, Attar Singh was produced in pursuance to the orders dated 29.10.1998 of the JMIC 1st Class, Rewari to re-examine Attar Singh whereby he had refused to give his consent for medical re-examination. Similarly, even Suman and Ram Kala had also refused to give their consent for re-medical examination and they were not medically re-examined despite of the order of the JMIC 1st Class, Rewari. These facts would go on to show that they CRA No.318-DB of 2002 -20- were apprehensive of their false complaints being exposed on re- examination and therefore, refused to give their consent for re-examination.
21. Accordingly, for the reasons given above, CRR Nos.1667 to 1668 of 2002, filed by Dharamvir, complainant, CRA No.488-DB of 2002 filed by the State and CRR No.44 of 2004 filed by Suman, appellant No.5 are dismissed. Accordingly, CRA No.318-MA of 2002 is partly allowed by modifying the sentence of Attar Singh to one under Section 304 Part-I IPC for a period of 10 years. Similarly, CRR No.1666 of 2002, filed by Dharamvir is also partly allowed and compensation of `50,000/- is awarded to the legal heirs of the deceased Siri Ram which is to be paid by Attar Singh failing which, he shall further undergo 1 year sentence. The appellant No.1, Attar Singh, who is in bail, shall surrender before the CJM, Rewari to undergo the rest of the sentence and in the event of his non-appearance, the CJM shall take steps in accordance with law to ensure his arrest.
(G.S.SANDHAWALIA) JUDGE (JASBIR SINGH) 01.07.2013 JUDGE sailesh