PETITIONER:
SARWAN SIMGH & ORS ETC.
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT30/08/1978
BENCH:
KAILASAM, P.S.
BENCH:
KAILASAM, P.S.
SINGH, JASWANT
CITATION:
1978 AIR 1525 1979 SCR (1) 383
1978 SCC (4) 111
CITATOR INFO :
F 1979 SC1177 (9)
ACT:
Penal Code, (Act 45), 1860 Section 300 r/w 149-Scope
of.
Criminal Procedure Code, 1973 Section 357(3) (=s. 54 of
1898 Code) object of order to pay compensation to the victim
or members of the family explained.
HEADNOTE:
The deceased Mewa Singh is the brother of the two
accused Sarwan Singh and Bachan Singh and the paternal uncle
of two other accused Karnail Singh and Zora Singh sons of
Sarwan Singh, Malkait Singh the other accused is the son-in-
law of Sarwan Singh. They are thus close relatives and there
was dispute over a common khal of the land and pahi. The
deceased had put an application before the Revenue Authority
against the accused and the matter was pending when the
occurrence took place on 8-9-1969. The deceased was attacked
by the accused with deadly weapons resulting in as many as
27 injuries of which injuries 2 and 3 were grievous. The
deceased died the next day in the civil hospital. The cause
of death was shock and haemorrhage and the injuries were
ante-mortem and sufficient in the ordinary course of nature
to cause death. The trial court found all the five accused
guilty under s. 302 read with s. 149 I.P.C. and punished
them taking the view that once the existence of injuries
sufficient to cause death is proved, the intention to cause
death will be presumed unless the evidence or the
circumstances warrant an opposite conclusion. The High Court
in appeal from that the common object was clearly to kill
the deceased and that the offence fell under s. 300. Thirdly
read with s. 34 IPC and accepted the trial court's Judgment.
Dismissing the appeals by special leave the Court,
^
HELD: (1) If a person causes an injury with the
intention of causing bodily injury to any person and when
the bodily injury intended to be inflicted is sufficient in
the ordinary course of nature to cause death, the offence
would fall under clause (iii) of s. 300 and would be
punishable under s. 302 I.P.C. [387 B]
(2) In order to find the person guilty of offence under
s. 300 read with s. 149, the prosecution must establish that
the offence was committed by any member of an unlawful
assembly in prosecution of the common object of the assembly
or such as the members of that assembly knew it to be likely
to be committed in prosecution of the common object. It is,
therefore, necessary for the prosecution to establish that
the common object of the unlawful assembly was to commit an
offence under s. 300 or that the members of the assembly
knew it to be likely that an offence under s. 300 punishable
under s. 302 IPC would be committed in prosecution of the
common object. [387 B-D]
(3) If the injuries that are sufficient in the ordinary
course of nature to cause death are traced to a particular
accused, he will be guilty of an offence under s. 300
punishable under s. 302 without the aid of s. 149, when the
injuries caused are cumulatively sufficient to cause death,
it is necessary before holding
384
each of the accused guilty under s. 300 read with s. 149 to
find that the common object of the unlawful assembly was to
cause death or that the members of the unlawful assembly
knew it to be likely that an offence punishable under s. 302
IPC would be committed in prosecution of the common object.
[387 D-F]
In the instant case, on an analysis of the injuries (a)
it cannot be said that any of the persons that inflicted
injuries intended to cause death or such injury as is
sufficient in the ordinary course of nature to cause death.
(b) The circumstance that unexpected quarrel was between the
members of the same family over a dispute as to water rights
shows that no offence under s. 300 read with sec. 149 IPC
punishable under s. 302 IPC has been made out. (c) the
common object of the assembly was to cause bodily injury as
is likely to cause death. Though the doctor has stated that
the injuries were sufficient in the ordinary course of
nature to cause death, it is difficult to hold that the
injuries, cumulatively, were sufficient in the ordinary
course of nature to cause death. The common object of the
assembly in the circumstances can only be said to cause
injuries which are likely to cause death which will be an
offence punishable under section 304(1) of the Indian Penal
Code. [388 E-H 389 A]
(4) (a) The object of s. 357(3) is to provide
compensation payable to the persons who are entitled to
recover damages from the person sentenced even though fine
does not form part of the sentence. Though s. 545 of 1898
Code enabled the court only to pay compensation out of the
fine that would be imposed under the law, by s. 357 (3) when
a court imposes a sentence, of which fine does not form a
part, the Court may direct the accused to pay compensation.
[390 D-E]
(b) In awarding compensation it is necessary for the
court to decide whether the case is a fit one in which
compensation has to be awarded. If it is found that
compensation should be paid, then the capacity of the
accused to pay a compensation has to be determined. In
directing compensation, the object is to collect the fine
and pay it to the person who has suffered the loss. The
purpose will not be served if the accused is not able to pay
the fine or compensation for, imposing a default sentence
for non-payment of fine would not achieve the object. If the
accused is in a position to pay the compensation to the
injured or his dependent to which they are entitled to,
there could be no reason for the court not directing such
compensation When a person, who caused injury due to
negligence or is made vicariously liable is bound to pay
compensation it is only appropriate to direct payment by the
accused who is guilty of causing an injury with the
necessary mens rea to pay compensation for the person who
has suffered injury. [390 E-G]
(c) The court should not first consider what
compensation sought to be awarded to the heirs of the
deceased and then impose a fine which is higher than the
compensation. It is the duty of the court to take into
account the nature of the crime, the injury suffered, the
justness of the claim for compensation. the capacity of the
accused to pay the other relevant circumstances in fixing
the amount of fine or compensation. [390 G-H, 391 A]
Palaniappa Gounder v. State of Tamil Nadu, [1977] 3 SCR
132 applied.
[The Court altered this conviction of offence
punishable under s. 304(1) read
385
with s. 149 and sentenced to 5 years R-I and a fine of Rs.
3500/- each, the fine to be paid as compensation to the
widow of the deceased]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
59 and 60 of 1972.
Appeals by Special Leave from the Judgment and order
dated 23-9-1971 of the Punjab and Haryana High Court in Cr1.
A. 512 of 1970.
R. L. Kohli and U. P. Singh for the Appellants.
A. S. Sohal, Hardev Singh and R. S. Sodhi for the
Respondent.
The Judgment of the Court was delivered by
KAILASAM, J. The two criminal appeals Nos. 59 and 60 of
1972 are by special leave. Criminal Appeal No. 59 of 1972
is, preferred by Sarwan Singh, Karnail Singh, Zora Singh and
Malkiat Singh, while Criminal Appeal No. 60 of 1972 is by
Bachan Singh against their conviction and sentence imposed
on them by the trial court and confirmed by the Punjab and
Haryana High Court in Criminal Appeal No. 512 of 1970. This
Court granted special leave in both cases limited to the
question as to whether the offence committed by the
appellants is one punishable under section 300 I.P.C. or
under any part of section 304 I.P.C.
The facts necessary for determining what offence the
accused were guilty of may be stated. Sant Singh is the
father of Sarwan Singh, Bachan Singh and Mewa Singh. Sarwan
Singh is the first appellant in Criminal Appeal No. 59 of
1972 and Bachan Singh is the sole appellant in Criminal
Appeal No. 60 of 1972. The deceased Mewa Singh is their
brother. Sarwan Singh had two sons, Zora Singh and Karnail
Singh who are appellants Nos. 3 and 2 in Criminal Appeal No.
59 of 1972. Sarwan Singh’s daughter was married to Malkiat
Singh who is the fourth appellant in Criminal Appeal No. 59
of 1972. Pending appeal, Sarwan Singh and Bachan Singh have
died and their appeals have abated. We are therefore
concerned only with Karnail Singh, Zora Singh and Malkiat
Singh who are appellants Nos. 2, 3 and 4 in Criminal Appeal
No. 59 of 1972.
The deceased is the brother of the two accused and
paternal uncle of the two other accused. The dispute was
over a common Khal of the land and a pahi. The deceased Mewa
Singh put an application before the Revenue authority
against the accused and the matter was pending when the
occurrence took place.
On the date of the occurrence, 8-9-1969, at about 3
P.M., PW.. 3, Mohinder Singh, went to Amar Singh, P.W. 5,
who is Lambardar of his village in connection with the
mutation of his land. Amar Singh was grazing his cattle near
the minor canal just opposite to the well
386
of the accused and the deceased Mewa Singh. When P.W. 3 was
20 Kadams away from the place where Amar Singh was grazing
his cattle, he heard a Raula coming from the side of tube
well of Mewa Singh. Hearing the noise, P.W. 3 ran towards
their place of the occurrence. He also saw P.W. 5, Amar
Singh and Mohinder Singh, son of Thakar Singh, P.W. 4 also
running towards the place of occurrence. The three witnesses
and Ujagar Singh, P.W. 9 who are eye-witnesses spoke to the
actual incident as follows:-
“When they reached near the place of occurrence
they heard Zora Singh shouting to Mewa Singh. Zora
Singh was armed with a Gandasi, Karnail Singh was
holding a Takwa, Malkait Singh was armed with a Gandasi
and Sarwan Singh and Bachan Singh were having a Lathi
each. Zora Singh gave a Gandasi blow to Mewa Singh who
raised his hands to ward off the blow and sustained
injury. Karhail Singh then gave a Takwa blow to Mewa
Singh which he warded off by raising his hands and got
an injury on his hand. Zora Singh and Karnail Singh
gave more injuries with their respective weapons.
Therefore, all the accused started causing injuries to
Mewa Singh with their respective weapons while he was
Lying on the ground.”
On the evening at about 8.30 P.M., P.W. 14 saw Mewa
Singh and enquired from the doctor whether he was in a fit
condition to, make a statement. The doctor gave his opinion
that Mewa Singh was not fit to make a statement. Mewa
Singh’s condition was found to be not satisfactory and
therefore he was moved to Civil Hospital, Ludhiana. He died
at 5.40 p.m. On 9-9-1969. The doctor noted 27 injuries on
the person of Mewa Singh. According to the doctor, the cause
of death was shock and haemorrhage and the injuries were
ante-mortem and sufficient in the ordinary course of nature
to cause death. Dr. Jagjit Singh, P.W. 5, examined Mewa
Singh on admission to the hospital at 6.45 p.m. On 8-9-1969
and found 27 injuries on Mewa Singh, of which injuries 2 and
3 were grievous. Injuries at 3, 5 to 9, 11 to 17 were caused
by sharp-edged weapons. All the injuries, except 2 and 3
were simple in nature.
The trial court was of the view that the question for
consideration was whether the accused intended to inflict
the injuries in question and if once the existence of
injuries sufficient to cause death is proved, the intention
to cause death will be presumed unless the evidence or the
circumstances warrant an opposite conclusion. In this view,
the trial court found all the accused guilty under section
302 read with section 149 of the Indian Penal Code. The High
Court found that
387
the common object was clearly to kill the deceased and the
offence fall under section 300. Thirdly, read with section
34, Indian Penal Code.
The facts of the case disclose that five accused armed
with various weapons caused the injuries to the deceased
which resulted in his death. If a person causes an injury
with the intention of causing bodily injury to any person
and when the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death,
the offence would fall under clause (iii) of section 300 and
would be punishable under section 302 of the Indian Penal
Code. The five accused were convicted by the trial court for
an offence under section 302 read with section 149 I.P.C. In
order to find the person guilty of offence under section 302
read with section 149, the prosecution must establish that
the offence was, committed by any member of an unlawful
assembly in prosecution of the common object of the assembly
or such as the members of that assembly knew to be likely to
be committed in prosecution of the common object. It is,
therefore necessary for the prosecution to establish that
the common object of the unlawful assembly was to commit an
offence under section 300 or that the members of the
assembly knew it to. be likely that an offence under section
300 would be committed in prosecution of the common object.
The cumulative effect of the injuries was no doubt found to
have been sufficient in the ordinary course of nature to
cause death. If the injuries that are sufficient in the
ordinary course of nature to cause death are traced to a
particular accused, he will be guilty of an offence
punishable under section 302 without the aid of section 149,
when the injuries caused are cumulatively sufficient to
cause death, it is necessary before holding each of the
accused guilty under section 302 read with Section 149 to
find that the common object of the unlawful assembly was to
cause death or that the members of the unlawful assembly
knew it to be likely that an offence punishable under
section 302 I.P.C. would be committed in prosecution of the
common object. In order to determine this question, it is
necessary to refer to the injuries caused in some detail:
Two grievous injuries are injuries 2 and 3 described in
Ex. PD. Injury No. 2 is an incised wound 3/4″ x 1/4″ bone
deep on the right little finger at its middle and injury No.
3 is incised wound 1/3″ distal to injury No. 2 at the right
little finger cutting the bone underneath. The grievous
injury is the fracture and cutting of the Light little
finger caused by a sharp-edged weapon. All the other
injuries are simple in nature. The injuries Nos. 1 to 3, 5
to 9, 11 to 17 were caused by sharp-edged weapon. Injury No.
1 is incised wound 1/2 ” x 1/6″ muscle deep on the left palm
in-between the left thumb and index
388
finger. Injury No. 2 is incised wound 3/4″ x 1/4″ bone deep
on the right little finger at its middle. Injury No. 3 is
incised wound 1/3″ distal to Injury No. 2 at the right
little finger cutting the bone underneath. Injury No. 5 is
incised wound 2″ x 1/4″ muscle deep on the left shin at its
middle areas. Injury No. 6 is incised wound 1/2″ x 1/4″ on
the left shin. Injury No. 7 is incised wound 1/3″ x 1/4″
muscle deep on the left shin. Injury No. 8 is incised wound
1/3″x 1/4″ muscle deep on the left shin. Injury No. 9 is
incised wound 3/4″ x 1/3″ muscle deep on the left shin.
While Injury No. 1 is on The left palm in between the left
thumb and index finger, injuries Nos. 2 and 3 on the right
little finger at its middle, injuries Nos. 5 to 9 are in the
area of the left shin. Most of the injuries are only 1/4″
deep while injury No. 9 is 1/3″ deep, and injury No. 1 is
1/6″ in depth. The other injuries Nos. 11 to 17 are on the
right shin and are incised wounds, most of which are of the
size of 1 3/4″ x 1/4″. The other injuries are contusions in
the chest area on the right and the left side, the with not
exceeding 3/4 of an inch. Injury No. 26 is on the head of
the dimension of 1 3/4″ X 1/4″ muscle deep on the left side
of the head 3″ above the left ear. All the injuries are
described by the do tor as simple. The depth of the incised
injuries is not more than of an inch and the width of the
contusions is not more than 3/4″. The area of the injury
cannot be said to be a vital part of the body. The injury on
the head is only 1″ in depth and has not caused any damage.
On an analysis of the injuries it cannot be said that any of
the persons that inflicted injuries intended to cause death
or such injury as is sufficient in the ordinary course of
nature to cause death. If the common object of the unlawful
assembly was to commit murder and in prosecution of the
common object of the unlawful assembly any member caused an
injury which is sufficient in the ordinary course of nature
to cause death, the members of the assembly would be liable
for an offence under section 302 I.P.C. read with 149 I.P.C.
but on a consideration of the injuries we are not satisfied
that the common object of the unlawful assembly was to cause
death. Taking the circumstance that the unexpected quarrel
was between the members of the same family over a dispute as
to water rights, we are unable to held that offence under
section 302 read with section 149 is made out. On a
consideration of the circumstances and the nature of the
injuries, it is not possible to hold that the common object
of the assembly was to cause bodily injury which is
sufficient in the ordinary course of nature to cause death.
It can be said that the common object of the assembly was to
cause bodily injury as is likely to cause death. Though the
doctor has stated that the injuries were sufficient in the
ordinary course of nature to cause death, we find it
difficult to hold that the injuries, cumulatively, were
sufficient in the ordinary course of nature
389
to cause death. The common object of the assembly in the
circumstances can only be said to cause injuries which are
likely to cause death which will be an offence punishable
under section 304(1) of the Indian Penal Code. In the
circumstances we set aside the conviction under section 350
read with section 34 I.P.C. but find the appellants are
guilty of an offence punishable under section 304(1) read
with section 149 I.P.C. and sentence them to five years
rigorous imprisonment and a fine of Rs. 3,500/- each.
In this case, the death was caused by the brothers in a
quarrel regarding water rights. From the records we are
satisfied that the accused are possessed with sufficient
funds to compensate, at least to some extent, the loss that
has been suffered by the dependants of the deceased.
The law which enables the Court to direct compensation
to be paid to the dependants is found in section 357 of the
Code of Criminal Procedure (Act 2 of 1974). The
corresponding provision in the 1898 Code was section 545.
Section 545 of the Code of Criminal Procedure (Act 5 of
1898) was amended by Act 18 of 1923 and by Act 26 of 1955.
The amendment which is relevant for the purpose of our
discussion is 525(1)(bb) which, for the first time was
inserted by Act 26 of 1955. By this amendment the court is
enabled to direct the accused, who caused the death of
another person, to pay compensation to the persons who are,
under the Fatal Accidents Act, entitled to recover damages
from the persons sentenced, for the loss resulting to them
from such death. In introducing the amendment, the Joint
Select Committee stated “when death has been caused to a
person, it is but proper that his heirs and dependants
should be compensated, in suitable cases, for the loss
resulting to them from such death, by the person who was
responsible for it. The Committee proceeded to state that
though section 545 of the Code as amended in 1923 was
intended to cover such cases, the intention was not however
very clearly brought out and therefore in order to focus the
attention of the courts on this aspect of the question, the
Committee have amended section 545 and it has been made
clear that a fine may form a part of any sentence including
a sentence of death and it has also been provided that the
persons who are entitled under the Fatal Accidents Act,
1855, to recover damages from the person sentenced may be
compensated out of the fine imposed. It also expressed its
full agreement with the suggestion that at the time of
awarding judgment in a case where death has resulted from
homicide, the court should award compensation to the heirs
of the deceased. The Committee felt that this will result in
settling the claim once for all by doing away with the need
for a further claim to a civil Court, and avoid needless
worry and expense
390
to both sides. The Committee further agreed that in cases
where the death is the result of negligence of the offender,
appropriate compensation should be awarded to the heirs. By
the introduction of clause (bb) to section 545(1), the
intention of the legislature was made clear that, in
suitable cases, the heirs and dependents should be
compensated for the loss that resulted to them from the
death, from a person who was responsible for it. The view
was also expressed that the court should award compensation
to the heir of the decease so that their claims would be
settled finally. This object is sought to be given effect to
by section 357 of the new Code (Act 2 of 1974). Section
357(3) provides that 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 sufered any loss or injury by reason
of the act for which the accused person has been so
sentenced. The object of the section therefore, is to
provide compensation payable to the persons who are entitled
to recover damages from the person sentenced even though
fine does not form part of the sentence. Though section 545
of 1898 Code enabled the court only to pay compensation out
of the fine that would be imposed under the law, by section
357(3) when a Court imposes a sentence, of which fine does
not form a part, the Court may direct the accused to pay
compensation. In awarding compensation it is necessary for
the court to decide whether the case is a fit one in which
compensation has to be awarded. If it is found that
compensation should be paid, then the capacity of the
accused to pay a compensation has to be determined. In
directing compensation, the object is to collect the fine
and pay it to the person who has suffered the loss. The
purpose will not be served if the accused is not able to pay
the fine or compensation for, imposing a default sentence
for non-payment of fine would not achieve the object. If the
accused is in a position to pay the compensation to the
injured or his dependents to which they are entitled to,
there could be no reason for the Court not directing such
compensation. When a person, who causing injury due to
negligence or is made vicariously liable is bound to pay
compensation it is only appropriate to direct payment by the
accused who is guilty of causing an injury with the
necessary Mens Rea to pay compensation for the person who
has suffered injury.
In awarding compensation as cautioned by this Court in
a decision reported in Palaniappa Gounder v. State of Tamil
Nadu, the Court should not first consider what compensation
ought to be awarded to the heirs of the deceased and then
impose a fine which is higher than the compensation. It is
the duty of the Court to take into account the
391
nature of the crime, the injury suffered, the justness of
the claim for compensation, the capacity of the accused to
pay and order relevant circumstances in fixing the amount of
fine or compensation. After consideration of all the facts
of the case, we feel that in addition to the sentence of 5
years rigorous imprisonment, a fine of Rs. 3,500/- on each
of the accused under section 304(1) I.P.C. should be
imposed. The fine will be paid as compensation to the widow
of the deceased, Mewa Singh. Tn default of payment of fine,
the accused will undergo further Simple imprisonment for 6
months.
S.R. Appeals dismissed.
392