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CRIMINAL APPEAL NO. 99 OF 2015 (ARISING OUT OF SLP (CRL) NO.1491 of 2012) MANOHAR SINGH …APPELLANT VERSUS STATE OF RAJASTHAN AND ORS. …RESPONDENTS

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 99 OF 2015
(ARISING OUT OF SLP (CRL) NO.1491 of 2012)
MANOHAR SINGH …APPELLANT

VERSUS

STATE OF RAJASTHAN AND ORS. …RESPONDENTS
J U D G M E N T

ADARSH KUMAR GOEL, J.
1. Leave granted.
2. This appeal has been preferred against the judgment and order dated
23rd November, 2011 passed by the High Court of Rajasthan at Jaipur in
Criminal Revision No.6 of 2009 by the complainant against the acquittal of
the respondents of offences other than Section 323 of the Indian Penal Code
(“IPC”) and grant of probation to them setting aside the sentence of
imprisonment imposed by the trial Court. As many as 13 accused were tried
on the allegations that they assaulted and caused injuries to PW-5- Manohar
Singh, appellant, Devi Singh PW-4, Maan Singh PW-11 and Karan Singh PW-1 on
29th October, 1980 at around 2 P.M. with a view to disturb the possession
of the complainant party on the agricultural land in question.
3. The trial Court convicted the accused including respondent Nos.2 to
11 and one Mool Singh son of Jaswant Singh who died during pendency of the
proceedings. Respondent Nos.2 to 11 were convicted and sentenced as
follows :
|Sl.N|Name of the |Convicted and Sentence Imposed |
|o. |accused | |
|1. |Ladu Singh |Under Section 323 IPC to undergo RI for three |
| | |months; Under Section 326 IPC to undergo RI for |
| | |four years and to pay fine of Rs.2,000/- and in |
| | |default to undergo further imprisonment of three |
| | |months; Under Section 324 IPC to undergo RI for |
| | |one year and to pay fine of Rs.500/- and in |
| | |default to undergo further imprisonment of one |
| | |month. |
|2. |Mange Singh, |Under Section 325 IPC to undergo RI for two |
| |Hanuman Singh |years and to pay fine of Rs.1,000/- and in |
| |son of Udai |default to undergo further imprisonment of two |
| |Singh, Sumer |months; Under Section 323 IPC to undergo RI for |
| |Singh and Tej |three months. |
| |Singh | |
|3. |Chotu Singh |Under Section 324 IPC to undergo RI for one year |
| | |and to pay fine of Rs.500/- and in default to |
| | |undergo further imprisonment of one month; Under|
| | |Section 323, IPC to undergo RI for three months |
|4. |Mool Singh, |Under Section 323, IPC, to undergo RI for three |
| |Anand Singh, |months. |
| |Sohan Singh, | |
| |Hanuman Singh | |
| |S/o Jaswant | |
| |Singh and | |
| |Bhanwar Singh | |

4. On appeal, the Court of Sessions set aside the conviction for
offences other than the one under Section 323 IPC but maintained the
conviction under Section 323 IPC. The sentence of imprisonment was also
set aside and the accused were granted probation subject to fine of
Rs.5,000/- which was to be paid to the victim.
5. The injured PWs, namely, Karan Singh, Devi Singh and Maan Singh
entered into the compromise and compounded the offence qua them but the
appellant filed a revision in the High Court which was dismissed.
6. We have heard learned counsel for the parties.
7. Learned counsel for the appellant submitted that the Court of
Sessions erred in setting aside the conviction for offences other than
Section 323 and also erred in granting benefit of probation. The fine
imposed was not adequate and having regard to number of injuries and their
nature, adequate compensation ought to have been granted. The appellant
received as many as 10 injuries including an incised wound in the parietal
region by sharp edged weapon, a muscle deep injury on the front of left leg
and a bone deep injury just above the front of left leg. Even if
technically, the injury could be held to be simple instead of grievous, the
sentence should have been adequate and in any case, due compensation ought
to have been granted. Thus, the High Court erred in dismissing the
revision petition.
8. Learned counsel for the accused pointed out that the respondent Devi
Singh has died during pendency of the proceedings in this Court.
Interference by this Court was not called for at this stage when 35
years have passed after the occurrence. In any
case, it may not be appropriate to give any sentence of imprisonment to any
of the accused and at best compensation may be directed to be paid by the
accused or the State to the appellant.
9. After giving due consideration to the rival submissions, we are of
the view that while it may not be appropriate to impose the sentence of
imprisonment at this stage, having regard to the nature and extent of
injuries, the appellant-complainant deserves to be duly compensated.
10. We find that the Court of Sessions and the High Court have not fully
focused on the need to compensate the victim which can now be taken to be
integral to just sentencing. Order of sentence in a criminal case needs
due application of mind. The Court has to give attention not only to the
nature of crime, prescribed sentence, mitigating and aggravating
circumstances to strike just balance in needs of society and fairness to
the accused, but also to keep in mind the need to give justice to the
victim of crime. In spite of legislative changes and decisions of this
Court, this aspect at times escapes attention. Rehabilitating victim is as
important as punishing the accused. Victim’s plight cannot be ignored even
when a crime goes unpunished for want of adequate evidence.
11. In the present case, following injuries were found on the appellant
by Dr. A.P. Modi, PW-2:-

“1. Bruise 6 cm x 4 cm down of right forearms.
2. Bruise 8 cm x 2 cm front of right arms.
3. Bruise 8 cm x 2 cm front of right arms.
4. Bruise 10 cm x 2 cm right supra scupular region.
5. Swelling of right shoulder with tenderness.
6. Bruise 15 cm x 2 cm on the middle of the back.
7. Abbression 1 cm x 1 cm left forearms.
8. Incised boon 2.5 x 0.5 x muscle deep fost of left leg.
9. Lancirated boon 3 x 1 cm x bone deep above injury no.8.
10. Incised boon 8 cm x 0.5 x bone deep on right parital region.”
Just compensation to the victim has to be fixed having regard to the
medical and other expenses, pain and suffering, loss of earning and other
relevant factors. While punishment to the accused is one aspect,
determination of just compensation to the victim is the other. At times,
evidence is not available in this regard. Some guess work in such a
situation is inevitable. Compensation is payable under Section 357 and 357-
A. While under section 357, financial capacity of the accused has to be
kept in mind, Section 357-A under which compensation comes out of State
funds, has to be invoked to make up the requirement of just compensation.
12. We may refer to some recent decisions on the subject.
In State of Gujarat and anr. vs. Hon’ble High Court of Gujarat[1],
it was observed:
“46. One area which is totally overlooked in the above practice is the
plight of the victims. It is a recent trend in the sentencing policy to
listen to the wailings of the victims. Rehabilitation of the prisoner need
not be by closing the eyes towards the suffering victims of the offence. A
glimpse at the field of victimology reveals two types of victims. The first
type consists of direct victims, i.e., those who are alive and suffering on
account of the harm inflicted by the prisoner while committing the crime.
The second type comprises of indirect victims who are dependants of the
direct victims of crimes who undergo sufferings due to deprivation of their
breadwinner.

94. In recent years, the right to reparation for victims of violation of
human rights is gaining ground. The United Nations Commission of Human
[pic]Rights has circulated draft Basic Principles and Guidelines on the
Right to Reparation for Victims of Violation of Human Rights. (see
annexure)”

13. In Ankush Shivaji Gaikwad vs. State of Maharashtra[2], it was
observed:
“30. In Hari Singh v. Sukhbir Singh [(1988) 4 SCC 551 : 1998 SCC (Cri) 984]
this Court lamented the failure of the courts in awarding compensation to
the victims in terms of Section 357(1) CrPC. The Court recommended to all
courts to exercise the power available under Section 357 CrPC liberally so
as to meet the ends of justice. The Court said: (SCC pp. 557-58, para 10)

“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. … 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.”
(emphasis supplied)

31. The amount of compensation, observed this Court, was to be determined
by the courts depending upon the facts and circumstances of each case, the
nature of the crime, the justness of the claim and the capacity of the
accused to pay.

32. In Sarwan Singh v. State of Punjab [(1978) 4 SCC 111 : 1978 SCC (Cri)
549], Balraj v. State of U.P [(1994) 4 SCC 29 : 1994 SCC (Cri) 823], Baldev
Singh v. State of Punjab [(1995) 6 SCC 593 : 1995 SCC (Cri) 1132], Dilip S.
Dahanukar v. Kotak Mahindra Co. Ltd. [(2007) 6 SCC 528 : (2007) 3 SCC (Cri)
209] [pic]this Court held that the power of the courts to award
compensation to victims under Section 357 is not ancillary to other
sentences but in addition thereto and that imposition of fine and/or grant
of compensation to a great extent must depend upon the relevant factors
apart from such fine or compensation being just and reasonable. In Dilip S.
Dahanukar case this Court even favoured an inquiry albeit summary in nature
to determine the paying capacity of the offender. The Court said: (SCC p.
545, para 38)

“38. The purpose of imposition of fine and/or grant of compensation to a
great extent must be considered having the relevant factors therefor in
mind. It may be compensating the person in one way or the other. The amount
of compensation sought to be imposed, thus, must be reasonable and not
arbitrary. Before issuing a direction to pay compensation, the capacity of
the accused to pay the same must be judged. A fortiori, an enquiry in this
behalf even in a summary way, may be necessary. Some reasons, which may not
be very elaborate, may also have to be assigned; the purpose being that
whereas the power to impose fine is limited and direction to pay
compensation can be made for one or the other factors enumerated out of the
same; but sub-section (3) of Section 357 does not impose any such
limitation and thus, power thereunder should be exercised only in
appropriate cases. Such a jurisdiction cannot be exercised at the whims and
caprice of a Judge.”

33. The long line of judicial pronouncements of this Court recognised in no
uncertain terms a paradigm shift in the approach towards victims of crimes
who were held entitled to reparation, restitution or compensation for loss
or injury suffered by them. This shift from retribution to restitution
began in the mid-1960s and gained momentum in the decades that followed.
Interestingly the clock appears to have come full circle by the lawmakers
and courts going back in a great measure to what was in ancient times
common place. Harvard Law Review (1984) in an article on Victim Restitution
in Criminal Law Process: A Procedural Analysis sums up the historical
perspective of the concept of restitution in the following words:

“Far from being a novel approach to sentencing, restitution has been
employed as a punitive sanction throughout history. In ancient societies,
before the conceptual separation of civil and criminal law, it was standard
practice to require an offender to reimburse the victim or his family for
any loss caused by the offense. The primary purpose of such restitution was
not to compensate the victim, but to protect the offender from violent
retaliation by the victim or the community. It was a means by which the
offender could buy back the peace he had broken. As the State gradually
established a monopoly over the institution of punishment, and a division
between civil and criminal law emerged, the victim’s right to compensation
was incorporated into civil law.”

46. The amendments to Cr.PC brought about in 2008 focused heavily on the
rights of victims in a criminal trial, particularly in trials relating to
sexual offences. Though the 2008 amendments left Section 357 unchanged,
they introduced Section 357-A under which the Court is empowered to direct
the State to pay compensation to the victim in such cases where

“the compensation awarded under Section 357 is not adequate for such
rehabilitation, or where the cases end in acquittal or discharge and the
victim has to be rehabilitated”.

Under this provision, even if the accused is not tried but the victim needs
to be rehabilitated, the victim may request the State or District Legal
Services Authority to award him/her compensation. This provision was
introduced due to the recommendations made by the Law Commission of India
in its 152nd and 154th Reports in 1994 and 1996 respectively.

48. The question then is whether the plenitude of the power vested in the
courts under Sections 357 and 357-A, notwithstanding, the courts can simply
ignore the provisions or neglect the exercise of a power that is primarily
meant to be exercised for the benefit of the victims of crimes that are so
often committed though less frequently punished by the courts. In other
words, whether courts have a duty to advert to the question of awarding
compensation to the victim and record reasons while granting or refusing
relief to them?

49. The language of Section 357 CrPC at a glance may not suggest that any
obligation is cast upon a court to apply its mind to the question of
compensation. Sub-section (1) of Section 357 states that the Court “may”
order for the whole or any part of a fine recovered to be applied towards
compensation in the following cases:

(i) To any person who has suffered loss or injury by the offence, when in
the opinion of the court, such compensation would be recoverable by such
person in a civil court.

(ii) To a person who is entitled to recover damages under the Fatal
Accidents Act, when there is a conviction for causing death or abetment
thereof.

(iii) To a bona fide purchaser of property, which has become the subject of
theft, criminal misappropriation, criminal breach of trust, cheating, or
receiving or retaining or disposing of stolen property, and which is
ordered to be restored to its rightful owner.

50. Sub-section (3) of Section 357 further empowers the court by stating
that it “may” award compensation even in such cases where the sentence
imposed does not include a fine. The legal position is, however, well
established that cases may arise where a provision is mandatory despite the
use of language that makes it discretionary. We may at the outset, refer to
the [pic]oft-quoted passage from Julius v. Lord Bishop of Oxford [(1880) 5
AC 214 : (1874-80) All ER Rep 43 (HL)] wherein the Court summed up the
legal position thus: (AC pp. 222-23)

“… The words ‘it shall be lawful’ are not equivocal. They are plain and
unambiguous. They are words merely making that legal and possible which
there would otherwise be no right or authority to do. They confer a faculty
or power, and they do not of themselves do more than confer a faculty or
power. But there may be something in the nature of the thing empowered to
be done, something in the object for which it is to be done, something in
the conditions under which it is to be done, something in the title of the
person or persons for whose benefit the power is to be exercised, which may
couple the power with a duty, and make it the duty of the person in whom
the power is reposed, to exercise that power when called upon to do so.”

54. Applying the tests which emerge from the above cases to Section 357, it
appears to us that the provision confers a power coupled with a duty on the
courts to apply its mind to the question of awarding compensation in every
criminal case. We say so because in the background and context in which it
was introduced, the power to award compensation was intended to reassure
the victim that he or she is not forgotten in the criminal justice system.
The victim would remain forgotten in the criminal justice system if despite
the legislature having gone so far as to enact specific provisions relating
to victim compensation, courts choose to ignore the provisions altogether
and do not even apply their mind to the question of compensation. It
follows that unless Section 357 is read to confer an obligation on the
courts to apply their mind to the question of compensation, it would defeat
the very object behind the introduction of the provision.

58. This Court has through a line of cases beginning with Hari Singh case
held that the power to award compensation under Section 357 is not
ancillary to other sentences but in addition thereto. It would necessarily
follow that the court has a duty to apply its mind to the question of
awarding compensation under Section 357 too. Reference may also be made to
the decision of this Court in State of A.P. v. Polamala Raju [(2000) 7 SCC
75 : 2000 SCC (Cri) 1284] wherein a three-Judge Bench of this Court set
aside a judgment of the High Court for non-application of mind to the
question of sentencing. In that case, this Court reprimanded the High Court
for having reduced the sentence of the accused convicted under Section 376
IPC from 10 years’ imprisonment to 5 years without recording any reasons
for the same. This Court said: (SCC pp. 78-79, paras 9 & 11)

“9. We are of the considered opinion that it is an obligation of the
sentencing court to consider all relevant facts and circumstances bearing
on the question of sentence and impose a sentence commensurate with the
gravity of the offence. …
* * *
11. To say the least, the order contains no reasons, much less ‘special or
adequate reasons’. The sentence has been reduced in a rather mechanical
manner without proper application of mind.”

61. Section 357 Cr.PC confers a duty on the court to apply its mind to the
question of compensation in every criminal case. It necessarily follows
that the court must disclose that it has applied its mind to this question
in every criminal case. In Maya Devi v. Raj Kumari Batra [(2010) 9 SCC 486
: (2010) 3 SCC (Civ) 842] this Court held that the disclosure of
application of mind is best demonstrated by recording reasons in support of
the order or conclusion. The Court observed: (SCC p. 495, paras 28-30)

“28. … There is nothing like a power without any limits or constraints.
That is so even when a court or other authority may be vested with wide
discretionary power, for even discretion has to be exercised only along
well recognised and sound juristic principles with a view to promoting
fairness, inducing transparency and aiding equity.

29. What then are the safeguards against an arbitrary exercise of power?
The first and the most effective check against any such exercise is the
well-recognised legal principle that orders can be made only after due and
proper application of mind. Application of mind brings reasonableness not
only to the exercise of power but to the ultimate conclusion also.
Application of mind in turn is best demonstrated by disclosure of the mind.
And disclosure is best demonstrated by recording reasons in support of the
order or conclusion.

30. Recording of reasons in cases where the order is subject to further
appeal is very important from yet another angle. An appellate court or the
authority ought to have the advantage of examining the reasons that
prevailed with the court or the authority making the order. Conversely,
absence of reasons in an appealable order deprives the appellate court or
the authority of that advantage and casts an onerous responsibility upon it
to examine and determine the question on its own.”
(emphasis supplied)

66. To sum up: while the award or refusal of compensation in a particular
case may be within the court’s discretion, there exists a mandatory duty on
the court to apply its mind to the question in every criminal case.
Application of mind to the question is best disclosed by recording reasons
for awarding/refusing compensation. It is axiomatic that for any exercise
involving application of mind, the Court ought to have the necessary
material which it would evaluate to arrive at a fair and reasonable
conclusion. It is also beyond dispute that the occasion to consider the
question of award of compensation would logically arise only after the
court records a conviction of the accused. Capacity of the accused to pay
which constitutes an important aspect of any order under Section 357 CrPC
would involve a certain enquiry albeit summary unless of course the facts
as emerging in the course of the trial are so clear that the court
considers it unnecessary to do so. Such an enquiry can precede an order on
sentence to enable the court to take a view, both on the question of
sentence and compensation that it may in its wisdom decide to award to the
victim or his/her family.”

14. In Suresh and Anr. vs. State of Haryana, Criminal Appeal No.420/2012
decided on 28th November, 2014, it was observed:-
“14. We are of the view that it is the duty of the Courts, on taking
cognizance of a criminal offence, to ascertain whether there is tangible
material to show commission of crime, whether the victim is identifiable
and whether the victim of crime needs immediate financial relief. On being
satisfied on an application or on its own motion, the Court ought to direct
grant of interim compensation, subject to final compensation being
determined later. Such duty continues at every stage of a criminal case
where compensation ought to be given and has not been given, irrespective
of the application by the victim. At the stage of final hearing it is
obligatory on the part of the Court to advert to the provision and record a
finding whether a case for grant of compensation has been made out and, if
so, who is entitled to compensation and how much. Award of such
compensation can be interim. Gravity of offence and need of victim are
some of the guiding factors to be kept in mind, apart from such other
factors as may be found relevant in the facts and circumstances of an
individual case. We are also of the view that there is need to consider
upward revision in the scale for compensation and pending such
consideration to adopt the scale notified by the State of Kerala in its
scheme, unless the scale awarded by any other State or Union Territory is
higher. The States of Andhra Pradesh, Madhya Pradesh, Meghalaya and
Telangana are directed to notify their schemes within one month from
receipt of a copy of this order. We also direct that a copy of this
judgment be forwarded to National Judicial Academy so that all judicial
officers in the country can be imparted requisite training to make the
provision operative and meaningful.”

15. In K.A. Abbas H.S.A. vs. Sabu Joseph and anr.[3], it was observed:-

“26. From the above line of cases, it becomes very clear, that, a sentence
of imprisonment can be granted for default in payment of compensation
awarded under Section 357(3) CrPC. The whole purpose of the provision is to
accommodate the interests of the victims in the criminal justice system.
Sometimes the situation becomes such that there is no purpose served by
keeping a person behind bars. Instead directing the accused to pay an
amount of compensation to the victim or affected party can ensure delivery
of total justice. Therefore, this grant of compensation is sometimes in
lieu of sending a person behind bars or in addition to a very light
sentence of imprisonment. Hence on default of payment of this
[pic]compensation, there must be a just recourse. Not imposing a sentence
of imprisonment would mean allowing the accused to get away without paying
the compensation and imposing another fine would be impractical as it would
mean imposing a fine upon another fine and therefore would not ensure
proper enforcement of the order of compensation. While passing an order
under Section 357(3), it is imperative for the courts to look at the
ability and the capacity of the accused to pay the same amount as has been
laid down by the cases above, otherwise the very purpose of granting an
order of compensation would stand defeated.”

16. In the present case, in the absence of any evidence about the medical
expenses, loss of earning etc. and the financial capacity of the accused,
we are of the view that the appellant needs to be paid a sum of Rs.50,000/-
as compensation under Section 357(3) within two months by the surviving
respondents. In default the surviving-respondents will undergo rigorous
imprisonment for three months. Since compensation is being directed to be
paid, we set aside the sentence of fine of Rs.5,000/-.
Accordingly, the appeal is allowed in above terms.

………………………………………………J.
(T.S. THAKUR)

………………………………………………J.
(ADARSH KUMAR GOEL)

NEW DELHI
JANUARY 16, 2015

———————–
[1] (1998) 7 SCC 392
[2] (2013) 6 SCC 770
[3] (2010) 6 SCC 230

———————–
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