//
you're reading...
legal issues

“Restorative and Reparative Theories These are not theories of punishment, rather, their argument is that sentences should move away from punishment of the offender towards restitution and reparation, aimed at restoring the harm done and calculated accordingly. Restorative theories are therefore victim-centred, although in some versions they encompass the notion of reparation to the community for the effective crime. They envisage less resort to custody, with onerous community based sanctions requiring offenders to work in order to compensation victims and also contemplating support and counselling for offenders to regenerate them into the community. Such theories therefore tend to act on a behavioural premises similar to rehabilitation, but their political premises is that compensation for victims should be recognised as more important than notions of just punishment on behalf of the State” 27. The provision for payment of compensation has been in existence for a considerable period of time on the statute book in this country. Even so, criminal courts have not, it appears, taken significant note of the said provision or exercised the power vested in them thereunder. The Law Commission in its 42nd Report at para 3.17 refers to this regrettable omission in the following words: 25

REPORTABLE

Trial of four British seamen at Canton, 1 Octo...

Image via Wikipedia

 
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1108 OF 2002

 
Roy Fernandes …Appellant

 

Versus

 

State of Goa and Ors. …Respondents

 

 

J U D G M E N T

 

T.S. THAKUR, J.

 

 

1. This appeal by special leave arises out of an order dated
22nd July 2002 passed by the High Court of Bombay at Goa
whereby the appeal filed by the appellant has been dismissed
and the conviction and sentence awarded to him by the trial
Court for offences punishable under Sections 143, 148, 323,
325 and 302 read with Section 149 IPC upheld.

 

 

1
2. Felix Felicio Monteiro aged about 60 years at the time of
the incident was the President of a Chapel at Bastora in Goa.
The Chapel it appears is situated next to the house of one
Rosalina Monteiro. The chapel and the house owned by
Rosalina are accessible from the main road by a path about
20-25 meters in length. A dispute regarding the said path
and resultant litigation was it appears at the bottom of the
incident that culminated in the sad and untimely demise of
Felix Felicio Monteiro.

 

3. On 11th May, 1997 the deceased Shri Monteiro, his wife
PW1 Sebastiana Monteiro, PW4 Julie Monteiro, her husband
PW6 Salish Monteiro besides a few others went to the
Chapel equipped with the necessary tools and implements
in order to put up a fence around the property. The
prosecution story is that while pits for fixing cement poles
required for the fencing were being dug in front of the
house of Rosalina Monteiro, her daughter named Antonetta
raised an objection and used harsh words against those
engaged in digging the pits work. A few minutes later a
Maruti Van arrived on the spot carrying “5 persons including
the appellant herein”, who went to Salish PW6, –
2
and gave him a fist blow on the face and he started
bleeding. He then gave a blow on the face of the deceased
Felix Felicio Monteiro and threw him on the ground. While
the deceased was being helped by his companions to stand
up and move towards the road, Anthony D’Souza one of the
accused persons took out a knife and gave a stab on the
left thigh of the deceased which unfortunately cut one of his
arteries that led to profuse bleeding. The result was that
the injured breathed his last even before he could be
helped by John, his neighbour to rush him to the hospital.
At the hospital, he was declared brought dead. The hospital
all the same informed the Mapusa Police Station. P.I.
Subhash Goltekar-PW22 from the police station recorded
the statement of PW1-Sebastiana Monteiro in which she
named the appellant. The police completed the
investigation which included recovery of the weapon of
offence pursuant to the disclosure made by accused No.2,
Anthony D’Souza and lodged a chargesheet against the
accused persons for offences punishable under Sections
143, 147, 148, 201, 302 and 323 read with Section 149

 

 

3
IPC. The Additional Sessions Judge to whom the case was

 

eventually committed charged the accused persons
including the appellant herein with the commission of
offences punishable under Sections 143, 148, 302 read with
Section 149 IPC and Sections 323 and 326 read with
Section 149 IPC and Section 201 read with Section 149
IPC. At the trial the prosecution examined as many as 22
witnesses to prove its case against the accused persons.
The accused persons did not lead any evidence in defence.

 

4. The Trial Court eventually found all the five accused
guilty of offences punishable under Sections 143, 148, 323,
325 and 302 read with Section 149 IPC and sentenced each
one of them to undergo one month’s RI under Section 323
and two months’ RI for the offence punishable under
Section 143, three months’ RI under Section 148 and one
year RI and a fine of Rs.1000/- each under Section 325
besides imprisonment for life and a fine of Rs.2,000/- for
offence punishable under Section 302 of the IPC.

 

 

4
5. Aggrieved by the judgment and order of the Trial Court
the accused persons preferred Criminal Appeal Nos.
69/2000 and 77/2000 before the High Court of Bombay at

 

Goa. By the impugned judgment in this appeal the High
Court upheld the conviction and sentence awarded to the
appellant, Roy Fernandes and Anthony D’Souza while
setting aside the conviction and sentence awarded to the
remaining three accused persons giving them the benefit of
doubt. It is noteworthy that against the judgment of the
High Court Anthony D’Souza who had actually stabbed the
deceased, preferred a special leave petition which was
dismissed by this Court by order dated 15th April, 2011. To
that extent the matter stands concluded. The present
appeal is, in that view, limited to the question whether the
conviction and sentence awarded to the appellant Roy
Fernandes for the offences with which he stood charged, is
in the facts and circumstances of the case, legally
sustainable.

 

6. We have heard learned counsel of the parties at
considerable length. It is common ground that the incident

5
in question had taken place on account of a sudden dispute
arising out of the proposed fencing of the Chapel property
which act was apparently seen by Rosalina Monteiro as an
obstruction to the use of the passage/pathway by her for –

 

the beneficial use of the property. There is evidence on
record to suggest that the pending litigation between the
villagers on the one hand and Rosalina on the other hand
embittered the relationship between the parties including
that with the deceased. Putting up of fence around the
Chapel property thus provided a flash point leading to the
unfortunate incident in which a valuable life was lost for no
worthwhile reason. From the deposition of PW1 Sebastiana
Monteiro, it is further clear that after the exchange of hot
words between the deceased and his companions on the
one hand and Antonetta, daughter of Rosalina on the other,
the latter had made a call to the appellant who had no
connection with the property in question or the dispute
except that he was engaged to get married to Antonetta. As
to what transpired over the telephone between the
appellant and Rosalina is not known. Ms. Subhashini,
learned counsel for the State of Goa fairly conceded that
6
PW1 Sebastiana Monteiro was not a witness to the
telephonic conversation between the two. Looking to the
sequence of events that unfolded on the fateful day what
appears to have happened is that on receiving a telephonic

 

call from Rosalina, the appellant rushed to the spot
alongwith four others to intervene and possibly prevent the
putting up of the fence by the deceased and his
companions, on account of the pending dispute between
the two groups. It is, therefore, reasonable to hold that
when the appellant received a telephonic call from Rosalina
possibly asking for help to prevent the putting up of the
fence, the appellant and his companions rushed to the spot
to do so. In the absence of any evidence leave alone
credible evidence it is not possible for us to hold that the
accused persons had come to the place of occurrence with
the common object of killing the deceased Felix Felicio
Monteiro.

 

7. That, however, is not the end of the matter. The next
and perhaps an equally important question would be
whether the appellant and his companions at all constituted

7
an unlawful assembly and if they did whether murder of the
deceased Felix Felicio Monteiro by Anthony D’Souza who
was one of the members of the unlawful assembly would in
the facts and circumstances of the case attract the –

 

provisions of Section 149 so as to make the appellant
herein also responsible for the act.

 

8. Mr. Luthra made a feeble attempt to argue that the
acquittal of the other three accused persons should be
sufficient to negative the theory of there being an unlawful
assembly of which the appellant was a member. He did
not, however, pursue that argument for long and, in our
opinion, rightly so because the legal position is fairly well-
settled by the decision of this Court in Khem Karan & Ors.
Vs. The State of U.P. & Anr. [1974 (4) SCC 603] where
this Court observed:

 

“6. xxxxxxxxx the fact that a large number of accused

have been acquitted and the remaining who have been

convicted are less than five cannot vitiate the

conviction under Section 149 read with the substantive

offence if – as in this case the court has taken care to

find – there are other persons who might not have been

identified or convicted but were party to the crime and

together constituted the statutory number.”

 

 
8
9. To the same effect is the decision of this Court in
Dharam Pal and Ors. Vs. State of U.P. [1975 (2) SCC
596] where this Court observed:

 

“10. xxxxxxxxx If, for example, only five known

persons are alleged to have participated in an attack

but the Courts find that two of them were falsely

implicated, it would be quite natural and logical to infer


or presume that the participants were less than five in

number. On the other hand, if the Court holds that the

assailants were actually five in number, but there could

be a doubt as to the identity of two of the alleged

assailants, and, therefore, acquits two of them, the

others will not get the benefit of doubt about the

identity of the two accused so long as there is a firm

finding based on good evidence and sound reasoning

that the participants were five or more in number.”

 
10. Acquittal of three of the five accused persons
comprising the unlawful assembly does not in the light of
the settled legal position make any material difference. So
long as there were four other persons with the appellant
who had the common object of committing an offence the
assembly would be unlawful in nature acquittal of some of
those who were members of the unlawful assembly by
reason of the benefit of doubt given to them
notwithstanding.

 

 

9
11. That leaves us with the question whether the
commission of murder by a member of an unlawful
assembly that does not have murder as its common object
would attract the provisions of Section 149 IPC. Section
149 IPC reads:

 

“149. Every member of unlawful assembly guilty

of offence committed in prosecution of common

object. – If an offence is committed by any member of


an unlawful assembly in prosecution of the common

object of that assembly, or such as the members of

that assembly knew to be likely to be committed in

prosecution of that object, every person who, at the

time of the committing of that offence, is a member of

the same assembly, is guilty of that offence.”

 
12. A plain reading of the above would show that the
provision is in two parts. The first part deals with cases in
which an offence is committed by any member of the
assembly “in prosecution of the common object” of that
assembly. The second part deals with cases where the
commission of a given offence is not by itself the common
object of the unlawful assembly but members of such
assembly `knew that the same is likely to be committed in
prosecution of the common object of the assembly’. As
noticed above, the commission of the offence of murder of

 

10
Felix Felicio Monteiro was itself not the common object of
the unlawful assembly in the case at hand. And yet the
assembly was unlawful because from the evidence adduced
at the trial it is proved that the common object of the
persons comprising the assembly certainly was to either
commit a mischief or criminal trespass or any other offence
within the contemplation of clause (3) of Section 141 of the

 

IPC, which may to the extent the same is relevant for the
present be extracted at this stage:

 
“Section 141 : Unlawful Assembly:

An assembly of five or more persons is designated an

“unlawful assembly”, if the common object of the

persons composing that assembly is–

 

First.– xxxxxxxxxxxxxxxxxxxxxxxx

 
Second.- xxxxxxxxxxxxxxxxxxxxxxxx

 

“Third-To commit any mischief or criminal

trespass, or other offence;”

 
13. From the evidence on record, we are inclined to hold
that even when commission of murder was not the common
object of the accused persons, they certainly had come to
the spot with a view to overawe and prevent the deceased

11
by use of criminal force from putting up the fence in
question. That they actually slapped and boxed the
witnesses, one of whom lost his two teeth and another
sustained a fracture only proves that point.

 

14. What then remains to be considered is whether the
appellant as a member of the unlawful assembly knew that
the murder of the deceased was also a likely event in
prosecution of the object of preventing him from putting up

 

the fence. The answer to that question will depend upon
the circumstances in which the incident had taken place
and the conduct of the members of the unlawful assembly
including the weapons they carried or used on the spot. It
was so stated by this Court in Lalji and Ors. Vs. State of
U.P. [1989 (1) SCC 437] in the following words:

 
“8.xxxxxxxxxxxxxxxxxxxxxx

Common object of the unlawful assembly can be

gathered from the nature of the assembly, arms used

by them and the behaviour of the assembly at or

before scene of occurrence. It is an inference to be

deduced from the facts and circumstances of each

case.”

 

 

12
15. The Court elaborated the above proposition in
Dharam Pal and Ors. Vs. State of U.P. [1975 (2) SCC
596] as :

 
“11. Even if the number of assailants could have been

less than five in the instant case (which, we think, on

the facts stated above, was really not possible), we

think that the fact that the attacking party was clearly

shown to have waited for the buggi to reach near the

field of Daryao in the early hours of June 7, 1967,

shows pre-planning. Some of the assailants had sharp-

edged weapons. They were obviously lying in wait for

the buggi to arrive. They surrounded and attacked the

occupants shouting that the occupants will be killed. We

do not think that more convincing evidence of a pre-

concert was necessary. Therefore, if we had thought it

necessary, we would not have hesitated to apply

Section 34 IPC also to this case. The principle of

vicarious liability does not depend upon the necessity to

convict a required number of persons. It depends upon

proof of facts, beyond reasonable doubt, which makes

such a principle applicable. (See: Yeshwant v. State of

Maharashtra; and Sukh Ram v. State of U.P.). The most

general and basic rule, on a question such as the one

we are considering, is that there is no uniform,

inflexible, or invariable rule applicable for arriving at

what is really an inference from the totality of facts and

circumstances which varies from case to case. We have

to examine the effect of findings given in each case on

this totality. It is rarely exactly identical with that in

another case. Other rules are really subsidiary to this

basic verity and depend for their correct application on

the peculiar facts and circumstances in the context of

which they are enunciated.”

 
16. Coming then to the facts of the present case, the first
and foremost of the notable circumstances is that the
appellant was totally unarmed for even according to the

 

13
prosecution witnesses he had pushed, slapped and boxed
those on the spot using his bare hands. The second and
equally notable circumstance is that neither the cycle chain
nor the belt allegedly carried by two other members of the
unlawful assembly was put to use by them. Mr. Luthra
argued that the prosecution had failed to prove that the
assembly was armed with a chain and a belt for the seizure
witnesses had not supported the recovery of the said
articles from the accused. Even if we were to accept the
prosecution case that the two of the members of the
unlawful assembly were armed as alleged, the non-use of –

 

the same is a relevant circumstance. It is common ground
that no injuries were caused by use of those weapons on
the person of the deceased or any one of them was
carrying a knife. The prosecution case, therefore, boils
down to the appellant and his four companions arriving at
the spot, one of them giving a knife blow to the deceased in
his thigh which cut his femoral artery and caused death.
The question is whether the sudden action of one of the
members of the unlawful assembly constitutes an act in
prosecution of the common object of the unlawful assembly
14
namely preventing of erection of the fence in question and
whether the members of the unlawful assembly knew that
such an offence was likely to be committed by any member
of the assembly. Our answer is in the negative.

 

17. This Court has in a long line of decisions examined the
scope of Section 149 of the Indian Penal Code. We remain
content by referring to some only of those decisions to
support our conclusion that the appellant could not in the
facts and circumstances of the case at hand be convicted
under Section 302 read with Section 149 of the IPC.

 

 

18. In Chikkarange Gowda & Ors. Vs. State of Mysore
[AIR 1956 SC 731] this Court was dealing with a case
where the common object of the unlawful assembly simply
was to chastise the deceased. The deceased was, however,
killed by a fatal injury caused by certain member of the
unlawful assembly. The court below convicted the other
member of the unlawful assembly under Section 302 read
with Section 149 IPC. Reversing the conviction, this Court
held:

 

15
“9. It is quite clear to us that on the finding of the High

Court with regard to the common object of the unlawful

assembly, the conviction of the appellants for an

offence under Section 302 read with Section 149 Indian

Penal Code cannot be sustained. The first essential

element of Section 149 is the commission of an offence

by any member of an unlawful assembly; the second

essential part is that the offence must be committed in

prosecution of the common object of the unlawful

assembly, or must be such as the members of that

assembly knew to be likely to be committed in

prosecution of the common object.
In the case before us, the learned Judges of the

High Court held that the common object of the unlawful

assembly was merely to administer a chastisement to

Putte Gowda. The learned Judges of the High Court did

not hold that though the common object was to

chastise Putte Gowda, the members of the unlawful

assembly knew that Putte Gowda was likely to be killed

in prosecution of that common object. That being the

position, the conviction under Section 302 read with

Section 149 Indian Penal Code was not justified in law.”

 

 

19. In Gajanand & Ors. Vs. State of Uttar Pradesh
[AIR 1954 SC 695], this Court approved the following
passage from the decision of the Patna High Court in Ram
Charan Rai Vs. Emperor [AIR 1946 Pat 242]:

 

“Under Section 149 the liability of the other members

for the offence committed during the continuance of

the occurrence rests upon the fact whether the other

members knew before hand that the offence actually

committed was likely to be committed in prosecution of

the common object. Such knowledge may reasonably

be collected from the nature of the assembly, arms or

behavior, at or before the scene of action. If such

knowledge may not reasonably be attributed to the

other members of the assembly then their liability for

16
the offence committed during the occurrence does not

arise”.

 
20. This Court then reiterated the legal position as under:

 

“The question is whether such knowledge can be

attributed to the appellants who were themselves not

armed with sharp edged weapons. The evidence on this

point is completely lacking. The appellants had only

lathis which may possibly account for Injuries 2 and 3

on Sukkhu’s left arm and left hand but they cannot be

held liable for murder by invoking the aid of Section

149 IPC. According to the evidence only two persons

were armed with deadly weapons. Both of them were

acquitted and Sosa, who is alleged to have had a

spear, is absconding. We are not prepared therefore to

ascribe any knowledge of the existence of deadly

weapons to the appellants, much less that they would

be used in order to cause death.”

 
21. In Mizaji and Anr. Vs. State of U.P. [AIR 1959 SC
572] this Court was dealing with a case where five persons

 

armed with lethal weapons had gone with the common
object of getting forcible possession of the land which was
in the cultivating possession of the deceased. Facing
resistance from the person in possession, one of the
members of the assembly at the exhortation of the other
fired and killed the deceased. This Court held that the
conduct of the members of the unlawful assembly was such
as showed that they were determined to take forcible

17
possession at any cost. Section 149 of IPC was, therefore,
attracted and the conviction of the members of the
assembly for murder legally justified. This Court analysed
Section 149 in the following words:

 

“6. This section has been the subject matter of

interpretation in the various High Court of India, but

every case has to be decided on its own facts. The first

part of the section means that the offence committed in

prosecution of the common object must be one which is

committed with a view to accomplish the common

object. It is not necessary that there should be a

preconcert in the sense of a meeting of the members of

the unlawful assembly as to the common object; it is

enough if it is adopted by all the members and is

shared by all of them. In order that the case may fall

under the first part the offence committed must be

connected immediately with the common object of the

unlawful assembly of which the accused were

members. Even if the offence committed is not in direct

prosecution of the common object of the assembly, it

may yet fall under section 149 if it can be held that the


offence was such as the members knew was likely to

be committed. The expression ‘know’ does not mean a

mere possibility, such as might or might not happen.

For instance, it is a matter of common knowledge that

when in a village a body of heavily armed men set out

to take a woman by force, someone is likely to be killed

and all the members of the unlawful assembly must be

aware of that likelihood and would be guilty under the

second part of section 149. Similarly, if a body of

persons go armed to take forcible possession of the

land, it would be equally right to say that they have the

knowledge that murder is likely to be committed if the

circumstances as to the weapons carried and other

conduct of the members of the unlawful assembly

 
18
clearly point to such knowledge on the part of them

all.”

 
22. In Shambhu Nath Singh and Ors. Vs. State of
Bihar [AIR 1960 SC 725], this Court held that members
of an unlawful assembly may have a community of object
upto a certain point beyond which they may differ in their
objects and the knowledge possessed by each member of
what is likely to be committed in prosecution of their
common object may vary not only according to the
information at his command but also according to the
extent to which he shares the community of object. As a
consequence, the effect of Section 149 of the Indian Penal
Code may be different on different members of the same
unlawful assembly. Decisions of this Court Gangadhar –
Behera and Others Vs. State of Orissa [2002 (8) SCC
381] and Bishna Alias Bhiswadeb Mahato and Others
Vs. State of West Bengal [2005 (12) SCC 657]
similarly explain and reiterate the legal position on the
subject.

 

 

19
23. In the case at hand, there is, in our opinion, no
evidence to show that the appellant knew that in
prosecution of the common object of preventing the putting
up of the fence around the chapel the members of the
assembly or any one of them was likely to commit the
murder of the deceased. There is indeed no evidence to
even show that the appellant knew that Anthony D’Souza
was carrying a knife with him, which he could use. The
evidence on the contrary is that after stabbing the
deceased Anthony D’Souza had put the knife back in the
cover from where he had drawn it. The conduct of the
members of the assembly especially the appellant also does
not suggest that they intended to go beyond preventing the
laying of the fence, leave alone committing a heinous
offence of murder of a person who had fallen to the ground

with a simple blow and who was being escorted away from
the spot by his companions. We have, therefore, no
hesitation in holding that the Courts below fell in error in
convicting the appellant for murder with the aid of Section
149 of the IPC.
20
24. Having said that, we have no manner of doubt that the
conviction of the appellant for offences punishable under
Sections 143, 148, 323 and 325 read with Section 149 of
the IPC is perfectly justified. The evidence on record clearly
makes out a case against the appellant under those
provisions and the Courts below have rightly found him
guilty on those counts. In fairness to Mr. Luthra, we must
mention that even he did not assail the conviction of the
appellant under those provisions. What was argued by the
learned counsel is that this Court could reduce the sentence
to the period already undergone by the appellant having
regard to the fact that the incident in question had taken
place nearly 15 years back and the appellant had not only
suffered the trauma of a prolonged trial and uncertainty but
his life had also suffered a setback, in as much Antonetta
had divorced him. Mr. Luthra submitted that the appellant

was a first offender and being a middle aged man, could be
spared the ignominy and hardship of a jail term at this
stage of his life when he was ready to abide by any
21
directions of this Court regarding compensation to the
victims of the incident. Support for his submissions was
drawn by Mr. Luthra from the decisions of this Court in
Hansa Vs. State of Punjab [1977 (3) SCC 575] and
Hari Singh Vs. Sukhbir Singh & Others [1988 (4) SCC
551]. In Hansa’s case (supra), the accused had been
convicted for an offence under Section 325 and sentenced
to undergo one year rigorous imprisonment. The High Court
had, however, given the accused the benefit of probation of
offenders Act, and let him off on his giving a bond for good
conduct for a year. This Court held that the power vested
in the Court had been correctly exercised. Even in Hari
Singh’s case (supra), the court granted a similar benefit to
a convict under Section 325 who had been sentenced to
undergo two years rigorous imprisonment. The Court in
addition invoked its power under Section 357 of the Cr.P.C.
to award compensation to the victim, and determined the
amount payable having regard to the nature of the injury –
inflicted and the paying capacity of the appellant. This
Court said:

 

 

22
“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 was

intended to do something to reassure 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 instalments,

may also be given. The court may enforce the order by

imposing sentence in default.”

 
25. 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

 
23
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 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.

 
26. Prof. Andrew Ashworth of Oxford University Centre for
Criminological Research has in the handbook of Criminology

 

 

24
authored by him referred to what are called “Restorative
and Reparative Theories” of punishment. The following
passage from the book is, in this regard, apposite:

 

 

“Restorative and Reparative Theories
These are not theories of punishment, rather, their

argument is that sentences should move away from

punishment of the offender towards restitution and

reparation, aimed at restoring the harm done and

calculated accordingly. Restorative theories are

therefore victim-centred, although in some versions

they encompass the notion of reparation to the

community for the effective crime. They envisage less

resort to custody, with onerous community based

sanctions requiring offenders to work in order to

compensation victims and also contemplating support

and counselling for offenders to regenerate them into

the community. Such theories therefore tend to act on

a behavioural premises similar to rehabilitation, but

their political premises is that compensation for victims

should be recognised as more important than notions

of just punishment on behalf of the State”

 

 

27. The provision for payment of compensation has been
in existence for a considerable period of time on the statute
book in this country. Even so, criminal courts have not, it
appears, taken significant note of the said provision or
exercised the power vested in them thereunder. The Law
Commission in its 42nd Report at para 3.17 refers to this
regrettable omission in the following words:

 
25
“We have a fairly comprehensive provision for payment

of compensation to the injured party under Section 545

of the Criminal Procedure Code. It is regrettable that

our courts do not exercise their statutory powers under

this Section as freely and liberally as could be desired.

The Section has, no doubt, its limitations. Its

application depends, in the first instance, on whether

the Court considers a substantial fine proper

punishment for the offence. In the most serious cases,

the Court may think that a heavy fine in addition to

imprisonment for a long terms is not justifiable,

especially when the public prosecutor ignores the plight

of the victim of the offence and does not press for

compensation on his behalf.”

 

 

28. In Manish Jalan Vs. State of Karnataka (2008) 8
SCC 225, even this Court felt that the provision regarding
award of compensation to the victims of crimes had not
been made use by the Courts as often as it ought to be.
This Court observed:

 
“Though a comprehensive provision enabling the Court

to direct payment of compensation has been in

existence all through but the experience has shown

that the provision has really attracted the attention of

the Courts. Time and again the Courts have been

reminded that the provision is aimed at serving the

social purpose and should be exercised liberally yet the

results are not heartening.”

 

 

29. In the above case the appellant had been convicted
under Sections 279 and 304A of the IPC. The substantive
sentence of imprisonment was in that case reduced by this

26
Court to the period already undergone with payment of fine
and a compensation of an amount of rupees one lakh to the
mother of the victim. Reference may also be made to the
decision of this Court in Rachpal Singh and Anr. Vs.
State of Punjab AIR 2002 SC 2710, where this Court
emphasised the need to assess and award compensation by
the accused to the gravity of the offence, needs of the
victim’s family as also the paying capacity of the accused.

 
30. Coming to the case at hand we need to keep in mind
that the incident in question had taken place as early as in
the year 1997. The appellant has faced a prolonged trial
and suffered the trauma of uncertainty arising out of his
conviction by the Trial Court and the High Court in appeal.
Besides the appellant have had no criminal antecedents or
involvement in any case, before or after the incident in
question. He has already undergone nearly three months
of imprisonment out of the sentence awarded to him. He
has, in the above backdrop, offered to compensate the
victims of the incident in question suitably. Mr. Luthra
submitted on instructions that the appellant is running a –

 
27
hotel in Goa and is earning an amount of Rs.10-12 lakhs
per year from the same implying thereby that he is in a
position to deposit the amount of compensation ordered by
this Court. In the totality of the above circumstances, we
are inclined to interfere in so far as the quantum of
sentence awarded under Section 325 of the IPC is
concerned.

 
31. In the result, we allow this appeal in part, set aside
the conviction and sentence awarded to the appellant under
Section 302 read with Section 149 of the IPC and acquit the
appellant of that charge. The conviction of the appellant for
offences punishable under Sections 323 and 325 of the IPC
is affirmed and the appellant is sentenced to the period of
imprisonment already undergone by him. We further direct
that the appellant shall deposit a sum of Rs.3,00,000/-
towards compensation to be paid to the widow of the
deceased Shri Felix Felicio Monteiro, failing her to his
surviving legal heirs. A sum of Rs.1,00,000/- shall be
similarly deposited towards compensation payable to Shri
Salish Monteiro, besides a sum of Rs.50,000/- to be paid to
Ms. Conceicao Monteiro failing to their legal

28
representatives. The deposit shall be made within two
months from today failing which the sentence of one year
awarded to the appellant shall stand revived and the
appellant taken in custody to serve the remainder of the
period. The appeal is disposed of with the above
modification and directions.
…………………………….J.

(ASOK KUMAR GANGULY)

 

 

………………………………J.

(T.S. THAKUR)
New Delhi

February 1, 2012

 

 

29

 

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,881,395 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com
%d bloggers like this: