Himachal Pradesh High Court
Nota Ram vs State Of Himachal Pradesh on 21 October, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Revision No. 67/2009
Decided on : October 21, 2016
Nota Ram ................Petitioner
.
Versus
State of Himachal Pradesh ..........Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting? Yes.
For the petitioner : Ms. Archna Dutt, Advocate.
of
For the respondent : Mr. Rupinder Singh Thakur, Additional
Advocate General with Mr. Rajat Chauhan,
Law Officer.
rt
Sandeep Sharma, Judge (Oral):
Present criminal revision petition filed under Sections 397 and 401 CrPC is directed against Judgment dated 21.4.2009 passed by the Sessions Judge, Kullu, HP in Cr. Appeal No. 7/2008 affirming judgment/order dated 18.3.2008/31.3.2008 passed by learned Chief Judicial Magistrate, L & S at Kullu in Criminal Case No. 436-I of 2002/46-ii of 2005, whereby present petitioner-accused (herein after referred to 'accused') was held guilty of offence under Sections 41 and 42 of Indian Forest Act whereas he was acquitted under Section 379 IPC. Accordingly, present petitioner was convicted and sentenced to undergo imprisonment for a period of six months and to pay a fine of `1,000/- for the commission of offence under Sections 41 and 42 Indian Forest Act.
2. Briefly stated the facts of the case as emerge from the record are that on 19.3.2002, a police team led by HC Lal Singh, HHC ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 2 Darshan Singh and HHC Pitamber Lal of Police Station Kullu was on patrolling duty near Angan Nallah in government vehicle bearing registration No. HP34A-0162. It also emerges from the record that at later point of time, aforesaid team of Police Station was joined by Gita .
Ram, Forest Block Officer, Gumat Ram, Forest Guard of Pah Beat and Poshu Ram, Chowkidar of Forest Department. The police alongwith forest officials went to Pah Nallah in the said vehicle. When they were 100 metres short of Pahnalah, they found a Tractor baring registration of No. HP-34-3582 parked in start condition. As per prosecution story, one Suresh Kumar son of Dola Ram was found sitting on the driver rt seat, whereas other persons including the present petitioner were found sitting in the Tractor. However, the fact remains that that after seeing the police and forest officials, Suresh Kumar, Driver stopped the tractor and taking advantage of darkness, ran away from the spot.
Police and forest officials checked the trolley of tractor and found 8 sleepers of different sizes of Deodar lying in the trolley. Police immediately took into possession the trolley as well as timber lying in the same vide memo Ext. PW-3/A. Head Constable Lal Singh prepared Rukka Ext. PW-9/A and sent to the Police Station, Kullu, where on the basis of same, FIR Ext. PW-9/B was registered. Police also prepared site plan Ext. PW-11/A and produced the case property alongwith tractor trolley before the Authorized Officer-cum-Divisional Forest Officer, Shamsi for disposal under Section 52A of Indian Forest Act. During investigation, police found tractor in question to be owned by one Bhag Chand, who claimed that he had given this tractor to the accused for a period of seven months on monthly rent of `7,000/- per ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 3 month from 1.3.2002 to 30.9.2002, vide contract agreement Ext. PW-
1/A. Police also took into possession, aforesaid agreement and insurance of the tractor vide memo Ext. PW-6/A and PW-1/A, respectively, in the presence of witnesses. Accused were arrested and .
during the course of interrogation, accused Piar Chand led the police to a place 100 metres short of Pahnalah and got the place identified where tractor had been parked alongwith trolley in start condition with eight sleepers. Accordingly, the police prepared demarcation of memo Ext. PW-7/A. It also emerges from the prosecution story that accused and Chatter Dass led police alongwith witnesses and got rt place identified where tractor trolley had been kept in start condition.
However, the fact remains that the police after completion of investigation found present petitioner and co-accused guilty of offence under Section 379 IPC and Sections 41 and 42 of Indian Forest Act, accordingly, police presented challan in the competent court of law on the allegations that they had cut Deodar sleepers from Government forest and were transporting the same during night without export permit.
3. Learned trial Court, on the basis of material made available on record, came to the conclusion that a prima facie case exists against the present petitioner as well as co-accused, accordingly framed charges under Sections 379 IPC and Sections 41 and 42 Indian Penal Code, to which accused pleaded not guilty and claimed trial. Subsequently, learned trial Court, on the basis of material adduced on record by the prosecution, held the accused guilty of having committed offences under Sections 41 and 42 Indian Forest ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 4 Act. However, he was acquitted under Section 379 IPC. Other co-
accused namely Piar Chand and Chatter Dass were acquitted by the Court for want of evidence. Present petitioner being aggrieved and dissatisfied with the judgment of conviction recorded against him, .
approached the Court of Sessions Judge under Section 374 CrPC.
However, the fact remains that the appeal preferred by the accused was dismissed vide judgment dated 21.4.2009 by the learned Sessions Judge. In the aforesaid background, accused filed this criminal of revision petition. At this stage, it may be noticed that judgment dated 18.3.208 whereby co-accused namely Piar Chand and Chatter Dass rt were acquitted, was not assailed by the State in any court of law and as such same has attained finality qua said accused.
4. Ms. Archna Dutt, Advocate, representing the accused vehemently argued that the judgments passed by both the Courts below are not sustainable since same are not based on correct appreciation of evidence placed on record and as such required to be quashed and set aside. She further contended that bare perusal of impugned judgments passed by the Courts below clearly suggests that both the Courts below failed to appreciate evidence placed on record by the prosecution in its right perspective and wrongly arrived at the conclusion that the accused is guilty of offence under Sections 41 and 42 of the Indian Forest Act. While referring to the judgments passed by both the Courts below, Ms. Dutt strenuously argued that both the Courts below appreciated evidence on record in a slipshod and perfunctory manner and great prejudice has been caused to the accused as both the Courts below failed to appreciate the evidence in ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 5 proper perspective and as such same deserve to be set aside. During arguments having been put forth by her, she made the Court to travel through the evidence of the prosecution to demonstrate that there are material contradictions in the statements having been made by the .
witnesses adduced on record by the prosecution and as such no conviction of petitioner could be recorded on the said evidence. She forcefully contended that perusal of statements made by prosecution witnesses clearly suggests that there was no cogent, reliable, of trustworthy and confidence inspiring evidence on which petitioner could be held guilty under Sections 41 and 42 of the Indian Forest rt Act. While concluding her arguments, she referred to judgment of the first appellate Court to suggest that it also failed to analyze statements of PW-3, PW-9 and PW-11, because bare perusal of same suggests that same were contradictory to the stand taken by each of them on material particulars and could not be made basis by the Courts below to record conviction against accused. She also stated that on the same set of evidence, other accused were acquitted by the learned trial Court, whereas accused was convicted under Sections 41 and 42 of Indian Forest Act, which itself suggests that the evidence was not read in its right perspective as far as case of accused is concerned and as such same also deserved to be set aside like other co-accused.
5. Mr. Rupinder Singh Thakur, Additional Advocate General duly assisted by Mr. Rajat Chauhan, Law Officer, supported the judgments passed by both the learned Courts below. Mr. Thakur, while referring to the judgments passed by both the learned Courts below vehemently argued that there is no scope of interference ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 6 whatsoever in the findings of evidence adduced on record by the prosecution. During arguments having been made by him, he specifically invited attention of the Court to the statements adduced on record by the prosecution to suggest that both the learned Courts .
below have dealt with each and every aspect of the matter meticulously. There is no reason for this Court to interference in the well reasoned judgments passed by learned Courts below. While refuting the contentions put forth on behalf of the accused, that there of are material contradictions and inconsistencies in the statements of the prosecution witnesses, Mr. Thakur made this Court to peruse rt evidence adduced on record by the prosecution to demonstrate that all the prosecution witnesses clearly stated that tractor in question at the relevant time was being driven by the accused, which was sufficient for the prosecution to connect him with the offences allegedly having been committed by him. Lastly, Mr. Thakur, reminded this Court of its limited jurisdiction, while exercising powers under Section 397 Cr.P.C.
He stated that this Court enjoys very limited powers under Section 397 Cr. P.C. to re-appreciate the evidence adduced on record by the prosecution to prove its case, especially when it stands proved on record that both the Courts below have dealt with each and every aspect of the matter meticulously. Mr. Chauhan, also submitted that while exercising revisional jurisdiction, Court has very limited powers to re-appreciate the evidence available on record. Learned law Officer, has placed reliance upon the judgment passed by Hon'ble Apex Court in case State of Kerala versus Puttumana Illath Jathavedan ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 7 Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been held as under:-
" In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of .
any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction.
Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in of appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."
6. In the aforesaid background, he prayed that the present rt petition deserves to be dismissed being devoid of any merit.
7. I have heard learned counsel representing the parties and have carefully gone through the record made available.
8. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to re-appreciate the evidence available on record. But in the present case, where accused has been convicted and sentenced under Sections 279, 304-A of the Indian Penal Code, this Court solely with a view to ascertain that the judgments passed by both the Courts below are not perverse and same are based upon correct appreciation of evidence available on record, undertook an exercise to critically examine the evidence available on record to reach fair and just decision in the case.
9. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon' ble ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 8 Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is .
salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. The relevant para of the judgment is reproduced of as under:-
"8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous rt supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
10. During proceedings of the case, this Court had occasion to peruse the entire evidence placed on record by the prosecution as well as statement made by petitioner under Section 313 CrPC, perusal whereof clearly suggests that on 19.3.2002, police party which was duly assisted by forest officials, found tractor bearing No. HP-34-3582 parked in start condition at Angan Nallah. It also stands duly proved that while checking tractor and its trolley, police as well as forest officials found eight sleepers of Deodar, in different sizes in the trolley.
::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 9It is also undisputed that at the time of occurrence, all the accused including accused had fled away from the scene but later on apprehended by the police and during investigation of case, accused led police to the place of occurrence fromwhere allegedly eight deodar .
sleepers were loaded in the tractor involved in the incident.
11. Police with a view to prove its case, examined as many as eleven witnesses, whereas under Section 313 CrPC, accused denied the case of the prosecution in toto and pleaded innocence. However, of the fact remains that he did not lead any evidence in defence. As has been noticed above, all the other co-accused were acquitted by the rt learned trial Court for want of evidence and their acquittal was never challenged by the respondent-State. Perusal of judgment passed by the learned trial Court which was further upheld by first appellate Court, suggests that the accused was held guilty of having committed offence under Sections 41 and 42 of Indian Forest Act solely on the ground that at the relevant time, he was in possession of the tractor.
In this regard, prosecution specifically placed reliance on the statement of PW-8 Bhag Chand, original owner of the tractor, who during investigation of the case, handed over documents including agreement Ext. PW-1/A allegedly entered into between accused and Bhag Chand wherein tractor bearing registration No. HP-34-3582 was given on monthly rent of Rs.7,000/- from 1.3.2002 to 30.9.2002 to the accused. Aforesaid factum of having entered into agreement Ext. PW-
1/A has been nowhere disputed by the accused meaning thereby that he admitted the contents of Ext. PW-1/A, perusal whereof clearly suggests that from 1.3.2002 to 30.9.2002, tractor was to remain with ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 10 the accused on monthly rent of Rs.7,000/-, payable to Bhag Chand, original owner of the tractor. Since alleged incident took place on 19.3.2002, police rightly relied upon the contract agreement Ext. PW-
1/A and charged the accused under sections 41 and 42 of Indian .
Forest Act and Section 379 IPC.
12. Careful perusal of judgment passed by learned trial Court suggests that the prosecution was not able to connect other co-
accused namely Chatter Dass as well as Piar Chand with the alleged of offence because no prosecution evidence was led to prove identity of these persons and as such they were acquitted by the learned trial rt Court but the learned trial Court, on the basis of statement of PW-8 Bhag Chand, original owner of the tractor, wherein he stated that he is original owner of tractor No. HP-34-3582 and he has executed agreement Ext. PW-1/A, wherein tractor was given on monthly rent to the accused on 1.3.2002 till 30.9.2002 on monthly rent of Rs.7,000/-
found petitioner guilty of offence. Perusal of Ext. PW-1/A clearly suggests that tractor was given to accused with effect from 1.3.2002 to 30.9.2002 on monthly rent of Rs.7,000/-. It also finds mention in the agreement that accused would be liable for all the case and offences in respect of aforesaid vehicle from 1.3.2002 to 30.9.2002 and accused himself used to ply the vehicle during this period. Interestingly, in cross-examination conducted upon aforesaid witness, defence was not able to extract anything contrary to what he stated in his examination-in-chief. Moreover, no suggestion worth the name was ever put to this prosecution witness to the effect that Ext. PW-1/A was never entered into by the accused with Bhag Chand. Hence, the ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 11 learned trial Court rightly came to the conclusion that at the relevant time, tractor in question was in the custody /possession of accused in terms of Ext. PW-1/A.
13. PW-3 Gita ram, Deputy Ranger and PW-9 Dardhan Singh .
and PW-11 Lal Singh, who investigated the case, unequivocally stated that at the time of raid, all the miscreants had fled away from the spot taking advantage of darkness but tractor No. HP-34-3582 remained there and on checking, eight sleepers of Deodar were found in the of trolley of tractor. They further stated that timber and tractor were taken into possession vide memo Ext. PW-3/A and given on rt Sapurdari to Karam Chand, Forest Guard. It has also come in the statement that vehicle of accused was found laden with timber at a place 100 metres short of Pahnalah on 19.3.2002 at 2.05 AM.
14. Conjoint reading of evidence led by the prosecution to connect the accused with the commission of alleged offence clearly suggest that at the relevant time, tractor in question was being plied by the accused in terms of agreement Ext. PW-1/A and he was liable for all cases, if any, during said period. PW-8 Bhag Chand categorically stated that during relevant period, tractor in question was being driven by the accused in terms of agreement. As has been discussed above, in the cross-examination, defence was not able to extract anything contrary to what PW-8 stated in his examination-in-
chief as such Courts below rightly held accused guilty of having committed offence under Sections 41 and 42 of the Indian Forest Act.
It also emerges from the record that at the relevant time, nobody was found in the tractor and evidence led on record by the prosecution ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 12 was not sufficient to prove identity of the other persons who were allegedly carrying eight sleepers of Deodar in the tractor. However, the fact remains that the prosecution was able to prove on record that on 19.3.2002, tractor bearing No. HP-34-3582 was carrying eight .
sleepers of Deodar without there being any export permit of Forest Department. Similarly, this Court while sifting the record found that defence was not able to disprove recovery of sleepers allegedly recovered from tractor being driven by accused. This Court, solely of with a view to ascertain correctness of the submissions having been made by accused under Section 313 CrPC, perused cross-examination rt conducted upon prosecution witnesses, perusal whereof clearly suggests that at no point of time, any suggestion worth the name was put to the prosecution witnesses that at the relevant time, no sleepers were found in the trolley of tractor being plied/used by accused.
Accused in his statement under Section 313 CrPC only stated that he is innocent and has been falsely implicated but, interestingly, he nowhere led evidence on record to suggest that at the relevant time, tractor was being driven by some other person, who was transporting Deodar sleepers illegally without informing him. Since no evidence to this effect was made available on record, courts below rightly held accused guilty of commission of offence under Sections 41 and 42 of the Act. It is undisputed that on 19.3.2002, tractor No. HP-34-3582 was taken into custody by Police with eight sleepers. There is nothing on record to prove that no illegal timber was being taken/transported in the vehicle. Similarly, this Court found that averment contained in Ext. PW-1/A i.e. agreement entered into between accused and Bhag ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 13 Chand, were nowhere objected to by the defence in the cross-
examination, meaning thereby contents of same were admitted to be correct by the accused and as such Courts below rightly came to the conclusion that on the date of occurrence, i.e. 19.3.2002, legal .
possession of tractor was with accused.
15. This Court, after carefully perusing entire evidence on record finds it difficult to accept the contention put forth by Ms. Dutt that the prosecution was not able to connect accused with the alleged of offence because it stands duly proved on record that on the relevant date, tractor was in possession of the accused and accused himself rt used to drive the tractor. Since prosecution was able to prove on record that on the date of occurrence, tractor was carrying eight sleepers of Deodar of different sizes illegally, accused was rightly held guilty of having committed offence under Sections 41 and 42 of Indian Forest Act. This Court, while sifting/analyzing documents also found that during the course of investigation, accused had led police party to the place, 100 metres short of Pah Nalah and had identified the place vide Ext. PW-5/A in the presence of Ram Singh, Inder Singh. Ram Singh PW-5 specifically stated that 23.3.2002, accused Nota Ram had led police party to the place of crime at Pahnalah and identified the place vide Ext PW-5/A. Similarly, scrutiny of cross-examination conducted on this witness also suggests that defence was not able to extract anything contrary to what he stated in his examination-in-
chief. Similarly, no suggestion worth the name with regard to false implication of the accused was put to this witnesses and as such this Court has no reason to believe the version of the petitioner that there ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 14 was enmity between the parties which led to false implication of the accused in the present case.
16. Similarly, this Court sees no suggestion on record put to prosecution witness that police or forest officials had any motive to .
falsely implicate the accused.
17. Hence, after bestowing thoughtful consideration, this Court finds no reason to differ with the concurrent findings of fact recorded by the Courts below and as such judgment of conviction of recorded by learned trial Court and affirmed by first appellate Court deserves to be upheld.
18. rt Consequently, in view of aforesaid discussion as well as judgments referred to herein above, this Court is of the view that the judgments passed by learned Courts below are based on correct appreciation of evidence and there is no scope whatsoever for this Court to interfere with the well reasoned judgments passed by learned Courts below. Accordingly, the present petition is dismissed.
19. Faced with this situation, counsel representing accused stated that in view of the fact that accused is a first offender and all other co-accused allegedly involved in the case have been acquitted for want of proper evidence, benefit of Section 4 of the Probation of Offenders Act can be extended to the accused. She stated that the mitigating circumstance in the present case is that the alleged offence was committed on 19.3.2002 i.e. 14 years back and more than seven years have passed after rendering of judgment by the learned trial Court, wherein accused was held guilty of offence committed under Sections 41 and 42 of Indian Forest Act. She also stated that the ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 15 accused is the sole bread-winner of the family and in case he is sent behind bars, entire family would be placed in precarious circumstances. She also stated that no loss has been caused to the State exchequer because the sleepers allegedly recovered from the .
tractor were seized and sold by the Forest Department.
20. In support of the aforesaid arguments, learned counsel for the petitioner-accused also invited the attention of this Court to the judgment passed by this Hon'ble Court in Yudhbir Singh versus of State of Himachal Pradesh 1998(1)S.L.J. 58, wherein it has been held as under:
rt "9. The only mitigating circumstance that appears to be there is that the time gap of about six years between the date of occurrence as well as the date of decision of this revision petitioner.
During this entire period sword of present case looming over the head of the petitioner was always there. That being so, this court is of the view that instead of sending the petitioner to jail as ordered by the courts below, he is given the benefit of Section 4 of the Probation of Offenders Act. Accordingly, it is ordered that he shall furnish personal bond in the sum of Rs. 5,000/- to the satisfaction of the trial Court within a period of four weeks from today to keep peace and to be of good behavior for a period of one year from the date of execution of the bond before the court below as well as not to commit any such offence. In addition to being given benefit of Section 4 of the Probation of Offenders Act, petitioner is further directed to pay a sum of Rs. 3,000/- each to PWs Baldev Singh and Dilbagh Singh injured as compensation. Shri R.K. Gautam submitted that this amount of compensation be deposited with the trial Court on or before 31.8.1997, who will thereafter pay the same to said persons."
21. In this regard, reliance is placed upon Hon'ble Apex Court judgment Ramesh Kumar @ Babla versus State of Punjab 2016 AIR (SC) 2858, wherein it has been held as under:
::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 16"7. Accordingly the appeal is allowed in part by converting appellant's conviction under Section 307 IPC to one under Section 324 IPC. On the question of sentence, it is pertinent to note that the occurrence took place in 1997. In his statement under Section 313 of the code of Criminal Procedure the appellant gave his age in 2002 as 36 years. He claimed that he .
and others went to the place of occurrence on getting information that his brother Sanjay Kumar was assaulted by Ramesh Kumar (Complainant). He brought his brother to Police Station and lodged a report. As noticed by trial court, parties are involved in civil as well as criminal litigation from before. High Court has noted that appellant, as per custody certificate, is not involved in any other case. In such of circumstances, it is not deemed necessary to send the appellant immediately to Jail custody after about 19 years of the occurrence when he appears to be 50 years of age and fully settled in life.
8. In view of aforesaid, in our view the ends of justice rt would be met by granting benefit of Probation of Offenders Act to the appellant. We order accordingly and direct that the appellant be released on executing appropriate bond before the trial court to appear and receive sentence of rigorous imprisonment for 1 (one) year when called upon to do so and in the meantime to keep the peace and be of good behaviour."
22. The reliance is also placed upon Hon'ble Apex Court judgment Hari Kishan and State of Haryana versus Sukhbir Singh 1988 AIR (SC) 2127, wherein it has been held as under:
"8. The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct? We gave our anxious consideration to the contentions urged by counsel. We are of opinion that the High Court has not committed any error in this regard also. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not showing to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 17 legislation applicable to the first offenders cannot be said to be inappropriate.
9. This takes us to, the third questions which we have formulated earlier in this judgments. The High Court has directed each of the respondents to pay Rs.2500/- as compensation to Joginder. The High Court has not .
referred to any provision of law in support of the order of compensation. But that can be traced to section 357 Criminal Procedure Code Section 357, leaving aside the unnecessary, provides:-
"357. Order to pay compensation: (1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, of order the whole or any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for rt any loss or injury caused by the offence, when compensation is in the opinion of the Court, recoverable by such person in a civil Court;
Xxxxxxxxxxxxxx Xxxxxxxxxxx Xxxxxx (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation. Such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this Section.
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 also vary depending upon the acts of each accused. Reasonable period for payment of ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP 18 compensation, if necessary by installments, may also be given. The Court may enforce the order by imposing sentence in default."
23. In view of the aforesaid law as well as submissions having been made by Ms. Dutt, learned counsel appearing on behalf of the .
accused and after taking into consideration the facts and circumstances of the present case, I am of the considered opinion that the present petitioner-accused can be granted benefit of Section 4 of the Probation of Offenders Act, 1958 subject to payment of adequate of compensation which would be determined after the receipt of the report of Probation Officer.
24. rt Accordingly, Registry is directed to call for the report of the Probation Officer, Mandi, District Mandi, H.P. on or before 5.12.2016. Registry to list this matter on 5.12.2016.
(Sandeep Sharma) Judge October 21, 2016 (vikrant) ::: Downloaded on - 15/04/2017 21:25:14 :::HCHP