Arjunan and etc. vs State By Inspector of Police

M. Karpagavinayagam, J.—These three appeals are heard together and common Judgment is rendered since it relates to a single case.

The appellants are the accused in S.C. No. 97 of 1986, on the file of Principal Sessions Judge, Periyar District at Erode. The appellant Arjunan

was convicted u/s 302 I.P.C., and sentenced to undergo imprisonment for life. The appellant Lakshmi Ammal alias Lakshmi was convicted u/s 323

I.P.C., and sentenced to pay a fine of Rs. 250/- in default to undergo R.I. for one month. The appellant Kuppusamy Gounder was convicted u/s

325 I.P.C., and sentenced to undergo R.I. for two years.

The crux of the accusation is that on 11-5-1986 at about 3.30 p.m., at Voikkalmedu, Poolaavalasu village A-1 Kuppusamy Gounder, the father

pelted stone at P.W. 2 Chinnammal and caused grievous hurt. A-2 Lakshmi Ammal, mother pelted stone at P.W. 2 and caused simple hurt, and

A-3 Arjunan, son, by means of wooden reaper attacked on the head of the deceased and caused his death.

The facts leading to the conviction are as follows :-

(a) The deceased Rangasamy Gounder is the husband of P.W. 2 Chinnammal and father of P.W. 1 Subramanian. A-1 Kuppusamy Gounder and

A-2 Lakshmi Ammal are the father and mother A-3 Arjunan. Both parties, viz. P.Ws. 1, 2, the deceased and the accused were residing at

Poolaavalasu village. Originally the family of the deceased belongs to Chinnakkampatti village.

(b) Twenty years back, the deceased along with his family came to the scene village Poolaavalasu, and settled there. The deceased and P.W. 2 are

agricultural coolies. Five years prior to the occurrence, the deceased purchased a vacant land with a hut from P.W. 5-Karuppanna Gounder. On

all the four sides, the said land was surrounded by life fence. At the western portion of the house of the deceased, the house of the appellants was

situated. On the northern side of the houses of the deceased and the appellants, there was a east-west road, called ''jeep road''. On the southern

side, there was a land belonging to one Karuppanna Gounder. The north-south fence divides the houses of the deceased and the appellants.

(c) At the eastern side of the north-south fence, there was a margosa tree standing at the vacant site, belonged to the deceased Rangasamy

Gounder. Since the deceased felt that the said margosa tree, at any time would fall on the roof of the hut belonged to the deceased, he decided to

cut and remove the said tree.

(d) On 11-5-1986, P.W. 1-Subramanian, the son of the deceased, who was residing at Polavarai village came to Poolaavalasu village, to meet his

parents. His relations Dhandapani and Sivanmalai also were present at the house. At that point of time, the deceased told them that he wanted to

cut and remove the margosa tree, which was standing on the north-west and which was inauspicious. So, P.W. 1 by way of helping his father,

claimed on that tree and tied a rope with the branches on the top of the tree, and got down from the tree, holding the other side of the rope, by

standing on the road side, in order to see that the tree does not fall on the roof of the house of the deceased, while the tree was being cut by the

deceased. At about 3.30 p.m.; the deceased began to cut the tree with an axe.

(e) Within a few minutes, on hearing the cutting sound, all the appellants came out of their house, and objected to the cutting of the tree by the

deceased, by standing in the jeep road. The deceased immediately stopped cutting, and the deceased, P.W. 1, P.W. 2 and their two other

relations came to the jeep road through wicket gate on the northern side, and asked the appellants, as to why they objected to the cutting of the

tree, which belonged to them. Then A-1 to A-3 said that the tree should not be cut, because it belonged to them. When the wordy quarrel was

going on, A-1 threw stones, but those stones did not hit anyone. At that time, A-3 suddently came with a wooden reaper - M.O. 1 and hit against

the deceased, by attacking on the left side of the head, near the left ear. The deceased fell down on the street and died instantaneously.

(f) A-1 took stones scattered in the road and pelted P.W. 2, due to which P.W. 2 sustained injury on her mouth, lossing her two teeth. A-2 also

pelted stones on P.W. 1, which was warded off, with the result, P.W. 1 sustained injuries on left hand fingers. A-3 after seeing the deceased fell

down, dropped the reaper there itself, and ran away. Thereafter, in order to prevent A-2, from pelting stones further, P.W. 1, took the wooden

reaper found on the ground and beat on the head of A-2 Lakshmi Ammal. Then A-1 and A-2 disappeared from the scene. When all the witnesses

including P.Ws. 1 & 2 found the deceased dead, they took the body and put it in a cot on the eastern side of the house of the deceased.

(g) P.W. 1, then immediately rushed to Arachalur police station at 8.30 p.m. P.W. 13-Jaganathan, Sub-Inspector of Police obtained the

complaint-Ex. P1 given by P.W. 1 and registered a case in Cr. No. 140 of 1986, for the offence u/s 302 I.P.C. Then he sent the document to the

Court as well as to the senior officials. He also sent P.W. 1 along with medical memo for medical examination by doctor.

(h) P.W. 8-Doctor attached to Arachalur Government Hospital, at 8.45 p.m., received the memo sent by police and examined P.W. 1. He found

an abrasion palmar aspect of left thumb 1/2"" x 1/4"" in size and an abrasion palmar aspect of left little finger 1/4"" x 1/4"". He issued Ex. P4 wound

certificate, according to which the injuries were simple in nature.

(i) P.W. 14, Inspector of Police, at about 10.00 p.m. received the intimation through a Police Constable sent by P.W. 13, and went to the spot at

about 11.30 p.m. P.W. 13 was present there. He prepared Ex. P2-observation mahazar and drew Ex. P12-rough sketch. At about 12 mid-night,

he recovered M.O. 1-wooden reeper, M.O. 2-rope, M.Os. 3 & 4 series-stones, M.O. 5-chip, and M.O. 6-cot under Ex. P3-mahazar attested

by P.W. 6. On 12-5-1986 between 1 a.m., and 4.30 a.m., P.W. 14 held inquest on the dead body of the deceased, and examined P.Ws. 1 to 3

in the presence of panchayatars. Ex. P13 is the inquest report. Then he sent P.W. 12-Police Constable along with Ex. P7-requisition, for the dead

body being handed over to the Doctor for post-mortem.

(j) On 12-5-1986 morning P.W. 12-Police Constable went to Government Hospital at Kodumudi, and handed over the dead body to P.W. 10-

Doctor, who commenced post-mortem at 10.40 a.m., and found the following injuries, as described in Ex. P8 post-mortem certificate.

A contusion covering over left frontal, temporal and parietal area 12 cm x 10 cm. On deep dissection fracture of left parietal and frontal bone

was seen durameter contained clotted blood. On internal examination, blood clots found over the left cerebraum.

P.W. 10-Doctor opined that the deceased would appear to have died of shock and haemorrhage due to the injuries.

(k) In the meantime, P.W. 14 found P.W. 2 Chinnammal with injuries. So, he sent her at 6.00 a.m., for examination by Doctor. P.W. 10-Doctor

at about 7.00 a.m., on 12-5-1986 examined P.W. 2, and found injuries on her mouth and two teeth were missing. Ex. P5 is the accident registered

extract. Then he referred P.W. 2 for taking x-ray, to General Hospital, Erode. P.W. 9-Doctor Ramamurthy, attached to Government Hospital,

Erode, at about 3.25 p.m., on 12-5-1986 examined P.W. 2 and issued Ex. P6-accident register extract. He opined that the dental injury was of

grievous in nature.

(l) After the post-mortem, P.W. 12-Police Constable seized M.O. 7-underwear from the body of the deceased, and handed over the same at the

Police Station.

(m) On 13-5-1986, at about 8.10 a.m., P.W. 14 arrested all the accused at Erode Bus stand, and recorded the statement of A-2. Since A-2 was

found with some injuries on her head, P.W. 14, referred A-2 for medical examination with Ex. P9-medical memo to Doctor.

(n) P.W. 11-Doctor attached to Government Hospital, Erode, at 11.20 a.m., examined A-2 and found the following injuries :-

Lacerated injury left parietal region 3 cm x 2 cm x 1 cm

Tenderness left little and ring finger

Tenderness anterior aspect of chest.

He issued Ex. P10-accident register extract, and Ex. P11-wound certificate.

(o) Thereafter P.W. 14 sent all the three accused for judicial custody. Since A-2 complained to the Magistrate, that she sustained serious injuries

on the head, again on the orders of the Magistrate, she was referred back to P.W. 11 Doctor who in turn admitted her in the Hospital and gave

treatment, and discharged after some days. After completing the investigation, P.W. 14, filed the charge sheet against the appellants, for the

offences referred above, before the committal Court.

After being committed, the trial Court framed charges against the appellants. The appellants pleaded not guilty and claimed to be tried. The

prosecution examined P.Ws. 1 to 14, filed Exs. P1 to P13 and marked M.Os. 1 to 7.

After the evidence was over, the appellants were questioned u/s 313 Cr.P.C., with reference to the incriminating materials appearing against

them. A-1 and A-3, the appellants Kuppusamy Gounder and Arjunan denied, having participated in the incident, and their complicity in the crime,

and they said that a false case had been foisted against them. A-2 filed a written statement, stating that when the deceased and P.W. 2 were cutting

the margosa tree, belonged to A-2, she came out of the house and objected to the cutting, and at that point of time, Rangasamy Gounder, the

deceased came and a gave a forcible hit on her head with wooden reaper and P.W. 2 also threw stones on her, and as a sort of self defence, she

pushed both of them on the ground, and then she went away. She would further say, that at the scene A-1 and A-3 were not present, and that

P.W. 1 was also not present.

After termination of trial, the trial Court on apprisal and appreciation of evidence, oral and documentary and the statement of the accused,

concluded that the prosecution has established its case, by discharging the burden of bringing home the guilt of the accused, and dealt with them as

referred above. The appellants have approached this Court, challenging these convictions and sentences imposed on them.

Mr. Santhanagopalan, learned counsel for the appellants, after taking us through the entire evidence, effectively contended that the prosecution

case suffers with very serious infirmities, and so the accused/appellants are entitled to be acquitted. He further contended that both fence and tree

belong to the appellants, that the tree was situated inside the fence, and since the tree belonging to the appellants was cut by the deceased, by way

of exercising the right of private defence, A-2 came to the scene and pushed the deceased on the ground, with the result the deceased died, and so

u/s 100 I.P.C., A-2 has got the right to cause injury, when she was afraid of danger to her life and property. It is also submitted by learned

counsel, that P.Ws. 2, 5, 6 and 7 would admit that fence is common, and the tree was standing inside the fence, and that even assuming that the

tree and fence were common, under Explanation 2 to Section 425 I.P.C., and illustration (g), when the joint property is demolished, in order to

advert the mischief, the joint owner of the property has got the right to exercise the private defence. Therefore, according to the counsel for the

appellants, the act attributed to the accused would not be considered to be an offence. He further contended that there was an injury on the scalp

of A-2, which is not explained by P.Ws 1 and 2, either in F.I.R., or during the course of investigation, and as such, only in the Court by way of

improvement, P.Ws. l and 2 would say that after the deceased was done to death by A-3 by means of wooden reaper, P.W. 1, after taking the

reeper, which was dropped by A-3 at the spot, caused injury on A-2, and that, the belated explanation, which has been given only in the Court

cannot be acted upon, and since the prosecution has not come forward with true version, at the time of F.I.R., or at the time of investigation, the

evidence of these witnesses has to be disbelieved. It is also contended that there was delay in lodging the F.I.R., and so many other material

witnesses, who stated to have witnessed the occurrence have not been examined. So, on the basis of this, counsel for the appellants would

contend that the prosecution case bristles with all sorts of improbabilities and infirmities, and as such, the benefit of doubt must be given to the

appellants.

Per contra, Mr. S. Anbazagan, learned Additional Public Prosecutor contended that there are evidence available through the witnesses, that the

tree belonged to the deceased Rangasamy Gounder, and the tree was standing in the land of the deceased family, and that there was no chance for

making a plea of private defence, as the prosecution has proved that the tree belonged to the deceased family, whereas the appellants never

attempted to establish even on the preponderance of probability, that the tree belonged to them, and as such, there cannot be any right of private

defence accrued to the appellants. Learned Addl. Public Prosecutor also submitted that the explanation, though belated, given by P.Ws. 1 and 2 in

Court, with regard to the injuries sustained by A-2, the very statement of A-2, before the Magistrate, while she was remanded would show that

she was assaulted by P.W. 1 alone. He also contended that there is no delay in F.I.R., since the occurrence had taken place at 3.30 p.m., and the

F.I.R., was registered by the police at 8.30 p.m., since P.W. 1 had to go to the nearby place by cycle and then to get a taxi to go to the Police

station. Moreover, the F.I.R., had reached the Magistrate at 10.30 p.m., on the very same day. Even assuming that there was delay in between

3.30 p.m., and 8.30 p.m., it has been properly explained by P.W. 1. Learned Addl. Public Prosecutor also contended that the non-examination of

Dhandapani and Sivanmalai, relatives of the deceased, would not cause any dent on the prosecution case, since their evidence is unnecessary,

because they are all interested witnesses, and especially when the injured witnesses were examined, there is no point in saying that these witnesses;

who cannot be called to be material witnesses, ought to have been examined.

We have carefully considered the contentions raised by respective counsel. Section 97 I.P.C., deals with right of private defence of the body

and of property, subject to the restrictions contained in Section 99, to defend his own body and the body of any other person against any offence

affecting the human body, or to defend the property against an offence falling under the definition of theft, robbery, mischief or criminal trespass, or

an attempt to commit those offences.

u/s 103 I.P.C., the right of private defence of property extends to causing death, if any offence is falling under any of the descriptions of

mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of

property or mischief under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such

right of private defence is not exercised. But under this Section, when the accused makes a plea of private defence, it is for the accused to establish

the same, of course, need not be beyond doubt, as prosecution has to do, but it may be done through preponderance of probability u/s 105 of the

Evidence Act.

Now, we have to see, whether this has been established to show that A-2 acted by exercising the right of private defence. For this thing, A-2

has to establish that the tree and the fence were under their possession. Though P.Ws. 1 and 2 would say that both tree and the fence belong to

them, the independent witnesses like P.W. 5, the original owner of the land and P.W. 7-Village Administrative Officer would say that as far as the

fence is concerned, it is common and belongs to both of them, but the tree standing in the land belonged to Rangasamy Gounder the deceased was

in his actual possession. Therefore, the right of private defence as contained in Section 97 or Section 103 or Explanation 2 to Section 425 I.P.C.,

will not be available to the accused. Further-more, the evidence of P.W. 7, V.A.O., is to the effect that the tree was standing at a distance of two

feet away from the fence on the eastern side in the land belonged to the deceased. Moreover, the observation mahazar-Ex. P2 prepared by the

investigating officer and the evidence of P.W. 14 would show that the tree was not inside the fence, but it was standing aloof, at a considerable

distance from the fence at the eastern side, in the land of the deceased. Therefore, we are of the view, that the prosecution has established that the

tree was actually in possession of the deceased. Such being the situation, it is not proper for the accused, to come and attack the deceased under

the pretext of exercising right of private defence.

Regarding the non-explanation for the injuries sustained by A-2, much was said about by the counsel for the appellants. No doubt, it is true

that either P.W. 1 in his F.I.R., or P.W. 2 in her statement to the police officer does not whisper anything about the injury on A-2. But, we should

not loose sight of the fact that A-2 herself made a statement before the Judicial Magistrate, while she was remanded, that she was assaulted by

P.W. 1. Her version is inconsistent with reference to the attack made on her. She has stated to the Doctor-P.W. 11, that she was beaten with rice

pounder by known person, whereas she told the Magistrate that she was beaten by wooden reaper, by P.W. 1-Subramanian. But through

suggestion in the cross-examination and the statement u/s 313 Cr.P.C., A-2 stated that she was beaten by the deceased. So, even in the process

of establishing the private defence, either for protecting the property or for protecting the body, the case of A-2 is not consistent. However, as we

referred earlier, the evidence of P.Ws. 1 and 2, corroborated by the medical testimony would show that the occurrence had taken place as alleged

by the prosecution, and a reading of the depositions of P.Ws. 1 and 2 would definitely make us to come to the conclusion, that their evidence is

natural, acceptable and they are above reapproach beyond suspicion. In the light of the above discussion, we are of the view, that the prosecution

has established its case beyond reasonable doubt.

Next question that crops up for consideration would be, regarding the nature of the offence committed by the accused. Even according to the

prosecution, A-1 Kuppusamy Gounder came and pelted stones, since there was a provocation given on the part of the deceased, as he begun the

process of cutting the tree, and then when it was questioned by the accused, the deceased, P.Ws. 1 and 2 came and emphatically said that they

have got the right to cut the tree, since the same belonged to them. So, in view of the provocation, even according to the prosecution, A-1

attacked P.W. 2 and caused grievous hurt, as evident from the medical certificate issued by P.Ws. 8 and 9. Since the act had been committed by

A-1, due to provocation, he would, at the most, be convicted for the offence u/s 335 I.P.C., and he cannot be convicted u/s 325 I.P.C.

Accordingly, the conviction and sentence imposed on the appellant in C.A. No. 511 of 1987 (A-1 before the trial Court) are set aside, and instead

A-1 is convicted u/s 335 I.P.C., and sentenced to pay a fine of Rs. 1,000/- in default to undergo R.I. for six months. In the result, Criminal Appeal

No. 511 of 1987, filed by A-1 Kuppusamy Gounder is allowed in part.

As regards the appellants in C.A. No. 766 of 1987 - A-2 Lakshmi Ammal, there is a clear evidence as discussed earlier, to show that she

pelted stone at P.W. 1 and caused simple injuries. Therefore, the conviction and sentence imposed on A-2 Lakshmi Ammal, u/s 323 I.P.C., to

pay a fine of Rs. 250/- in default to undergo R.I. for one month are confirmed. It is submitted that the appellant Lakshmi Ammal (A-2) has paid

fine before the trial Court. Accordingly, Criminal Appeal No. 766 of 1987 is dismissed.

On behalf of A-3 Arjunan, the appellant in C.A. No. 486 of 1987, it is strenuously contended by Mr. Santhana Gopalan, that since a single

blow was dealt with by means of a wooden reaper on the left side head of the deceased in a heat of passion and in a sudden quarrel, the act of the

appellant Arjunan, if at all, would come either u/s 304 Part I, I.P.C., or u/s 304 Part II, IPC., and not u/s 302 I.P.C. Learned counsel cited various

authorities for this proposition, as given below :-

(a) 1994 SCC (Crl.) 501 (Chonadan Karunan alias Perinjili v. State of Kerala)

(b) Baldev Singh and another Vs. State of Punjab,

(c) (1996) MLW (Crl.) 9 Vairamuthu v. State (Madras High Court)

(d) (1996) I MWN (Cri) SC 140 1996 CLJ 878 Wassan Singh v. State of Punjab

(e) (1996) 1 M LW (Cri) 304 (Nallamuthu v. State) (Madras High Court)

Learned Additional Public Prosecutor while conceding the position also cited a decision of the Supreme Court in Ram Swarup Vs. The State

of Haryana, , to show that this would not come under any of the clauses of Section 300 I.P.C., and thereby the offence u/s 302 I.P.C., is not

getting attracted.

On the basis of the above citations and the facts and circumstances of the case, we feel that the act of A-3 Arjunan in taking the wooden

reaper, which was usually found available in the houses of the villagers, gave a single hit on the left side head of the deceased, in a sudden quarrel

and out of a heat of passion, would at the most attract penal Section 304 Part I, IPC. Accordingly, the conviction and sentence imposed on A-3

Arjunan for the offence u/s 302 of Indian Penal Code, to undergo life imprisonment are set aside, and instead, the appellant Arjunan is convicted

for the offence u/s 304, Part I of the Indian Penal Code. We deem it fit to impose sentence of rigorous imprisonment for seven years.

At this stage, Mr. Santhana Gopalan, learned counsel for the appellant Arjunan (A-3), pointed out that this appellant had already undergone

imprisonment nearly for a period of one month, and requested the Court to consider the order for awarding substantial amount of compensation in

addition to the sentence of imprisonment that he had already undergone, by invoking Section 357(3) Cr.P.C. Learned counsel also submitted that

the appellant-Arjunan, who is aged about 35 years has just finished his B.Sc., graduation and being an unmarried man searching for a job, and he

is duty bound to look after his aged parents.

To substantiate this submission, learned counsel for the appellant-Arjunan, cited the following two decisions :-

(i) 1989CriLJ116 (Hari Kishan & State of Haryana v. Sukhbir Singh)

(ii) Baldev Singh and another Vs. State of Punjab,

In the former decision, the Supreme Court has held as follows :-

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.

In the latter decision, wherein while the compensation was ordered by invoking Section 357 Cr.P.C., even though the accused was convicted u/s

304 Part I, I.P.C., the apex Court held as hereunder (at p. 4209 of AIR SCW) :-

Similarly for the mitigation of the sentence of imprisonment and for applying Section 357 of Cr.P.C., the following passage occurring in B. B.

Mitra''s Code of Criminal Procedure - 18th Edn. (1995) at pages 1240-1241 was relied on :

357(a) Scope - The power of Courts to award compensation to victims u/s 357, is not ancillary to other sentences but is an addition thereto. It is

a measure of responding appropriately to crime as well as of reconciling the victim with the offender. It is, to some extent, a constructive approach

to crimes, a step forward in our criminal justice system. Therefore, all Courts are recommended to exercise this power liberally so as to meet the

ends of justice in a better way. Any such measure which would give the victim succour is far better than a sentence by deterrence. Sub-section (3)

of Section 357 provides for odering of payment by way of compensation to the victim by the accused. It is an important provision and it must also

be noted that power to award compensation is not ancillary to other sentences but it is in addition thereto ... In awarding compensation the Court

has to decide whether the case is 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 compensation has to be determined. It is the duty of the Court to take into account the nature of crime, the injury

suffered, the justness of the claim for compensation and other relevant circumstances in fixing the amount of compensation.

In view of the above observations, let us consider the scope and object of the provision of Section 357 Cr.P.C.

Sec. 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, order the whole or any part of the fine recovered to be applied -

(a) to (d) .................

(2) ...............

(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 so 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 powers of

revision. ....

In this case, we are not concerned with sub-section (1), since it relates to the imposition of sentence of fine or the sentence of which fine forms

part. In the instant case, as already referred, we deem it fit to impose sentence of R.I. for seven years, for the offence u/s 304 Part I, IPC.

Therefore, we are concerned only with sub-section (3) of Section 357 Cr.P.C., since it relates to the sentence of which fine does not form part.

Reading of sub-sections (3) and (4), being a new important provisions, is quite interesting.

The object of the Section 357(3) Cr.P.C., is to provide compensation payable to the persons who are entitled to recover damage from the

person sentenced even though fine does not form part of the sentence. Though Section 545 (old Code) enabled the Court only to pay

compensation out of the fine that would be imposed under the law, under new Section 357(3) Cr.P.C., 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 u/s 357(3) Cr.P.C., the object is to collect the amount and

pay it to the suffered person who sustained loss. This object will not be served if the accused is not able to pay the compensation. If the accused is

in a position to pay the compensation to the injured or his dependents to which he or she is entitled to, there could he no reason for the Court not

directing such compensation.

That is the reason for the introduction of new provision in Section 357 Cr.P.C., empowering the Court to direct compensation, taking into

consideration the capacity of the accused to pay the said compensation. In the instant case, the learned counsel for the appellant-Arjunan, fairly

submits that his client is prepared to pay substantial amount of compensation, which is reasonable, as fixed by this Court.

In this context, it is relevant to point out the observation contained in paragraph 17 - Chapter III of the 42nd Report of the Law Commission

of India, which is as follows :-

We have a fairly comprehensive provision for payment of compensation to the injured party u/s 545 of the Criminal Procedure Code. (Old

Code). It is regrettable that our Courts do not exercise their salutary powers under this Section as freely and liberally as could be desired ...... The

Public Prosecutor ignores the plight of the victim of the offence and does not press for compensation on his behalf ...

As observed by the Apex Court, this power u/s 357(3) Cr.P.C., is intended to do something to reassure the victim that he or she is not

forgotten, and it is indeed a step forward in our criminal justice system.

Reparation to the victim of an offence has been receiving increasing attention. This is due to the realisation that mere punishment of the

offender, is not total fulfilment of the Rule of Law, though it may exhaust the primary function of a criminal law. The unfortunate victim, having given

his or her evidence, stands aside and watches the Court, being satisfied by conviction and sentence. It is for this reason, the Law Commission has

emphasised that the Court should be liberal in utilising the powers vested in them in granting compensation to the injured in a criminal case and a

specific new provisions under sub-sections (3) and (4) have been incorporated in the Criminal Procedure Code in Section 357, empowering the

trial Court and the Appellate Court, to exercise the discretion under these sections.

Law contained in Section 357(3) Cr.P.C., has, by and large, been mostly virgin territory. The reason is lack of proper motivation. Hence the

Apex Court in the case of Hari Kishan v. Sukhbir Singh 1989 CLJ 116 (stated supra) had to issue a mild reprimad while exhorting the Courts for

liberal use of this provision to meet the ends of justice as a measure of responding appropriately to the crime, and reconciling the victim with the

offender.

The Criminal Justice System thinks more of the rights of the offender than that of relief to the victims. The anxiety that we show to highlight the

rights of the offender is not shown in enactment relating to compensation which too has a social purpose to serve. The matter is left to the whims

and discretion of the Criminal Courts. That is why the Apex Court only recommended, and not directed, liberal use of the provisions of Section

357 Cr.P.C. There is a great need to amend the law so as to make it obligatory on the Courts to give reasons as to why the provisions relating to

compensation have not been applied.

Some States like Bihar, Madhya Pradesh and West Bengal by way of amendment of Section 357 Cr.P.C., have made it obligatory on the

Courts to award compensation in all cases of crime against the members of Scheduled Castes and Scheduled Tribes. Why not extend these

provisions as of right may be even as a Fundamental Right under the Constitution, to each victim of every crime irrespective of religion, caste,

creed etc. ?

The Apex Court in the case of Hari Kishan 1989 CLJ 116 (stated supra) has ruled that even the order of compensation is enforceable by

imposing sentence in default, though there is no such provision for default sentence in Section 357(3) Cr.P.C. So, in the light of the above decision

of the Supreme Court, we may suggest that the Legislature may well amend Section 357 Cr.P.C., to incorporate this provision for default sentence

also, or otherwise, it would result in confusion.

Victim compensation is a new horizon in settling claims for losses incurred and quenching the thirst for retribution. In our society based on

human relationships, the set up of crime demands means to satisfy the victims loss. No-doubt, the agreed money cannot buy back lost happiness,

but financial redress is a better and more rehabilitative process than imprisonment.

In the light of the above discussions, we are of the view that this is a fit case, where the wife of the deceased, who died in a sudden quarrel,

being the sufferer of the irreparable loss due to the death of the deceased, should be adequately compensated u/s 357(3) Cr.P.C. Section 357

Cr.P.C., which has an object behind it, as stated earlier, gives a message of its own in this regard, that the power of the Court to award

compensation is not ancillary to other sentence, but it is an addition thereto. As observed by the Apex Court, the quantum of compensation may be

determined by taking into account the nature of the crime, the manner in which it has been committed, the justness of claim by the victim and the

ability of the accused to pay.

Therefore, to decide these factors, we directed the learned Additional Public Prosecutor on 21-1-1997, to request the victim in this case, viz.

P.W. 2-Chinnammal, the wife of the deceased and other family members, to be present in Court, in order to ascertain their views. Today (30-1-

1997) both P.W. 2-Chinnammal, the widow and P.W. 1-Subramaniam, the son of the deceased are present, in this Court :

When we explained the situation of the facts and our view with reference to the award of compensation, to our pleasant surprise, P.W. 2-

Chinnammal, reflecting her magnanimity, Voluntarily said that her husband had to die under the unexpected circumstances, which was so sudden,

and that she did not like the A-3 Arjunan, an young man, who is in a marriagable age, to be incarcerated, to undergo the imprisonment. She further

stated that she is now being looked after well by her two sons, viz. P.W. 1 and another.

When she was questioned about the quantum of compensation, the wife of the deceased, a old age woman, wearing white saree, indicating

that she is a widow, to out surprise stated that she is not particular about the quantum and she is prepared to accept any amount of compensation,

as fixed by this Court, in addition to the sentence of imprisonment that has already been undergone by A-3 Arjunan. Learned Additional Public

Prosecutor also filed a memo to this effect in Tamil, after having read over the same to P.W. 2-Chinnammal, and obtaining her signature attested

by P.W. 1, in the same.

We have also ascertained the means of the appellant-Arjunan, and his ability to pay the compensation to the victim. Mr. Santhana Gopalan,

learned counsel for the appellant reiterated that his client is willing to pay any amount determined by this Court. It is indeed, a good gesture on the

part of the counsel and the appellant.

In the light of the above facts and circumstances of the case, we are of the view, that the interest of justice would be met by ordering

compensation of Rs. 3,00,000/- (Rupees three lakhs) to P.W. 2-Chinnammal, by A-3 Arjunan, in addition to the sentence of imprisonment

already undergone by him, on having given our anxious consideration to the age of the appellant, the paying capacity of the family of the accused,

and the present position of P.W. 2-Chinnammal. Learned counsel readily agreed for the same on getting instructions from his client-A-3 Arjunan,

who is present in Court, and requests four months'' time for making such payment. Learned counsel further seeks permission to make the payment

of Rs. 1,50,000/- in two months'' time from today, as first instalment and the balance of Rs. 1,50,000/- in the next two months'' period.

In the result, the conviction and sentence imposed on the appellant in C.A. No. 486 of 1987 - Arjunan u/s 302 I.P.C., to undergo

imprisonment for life are set aside, instead the appellant is convicted u/s 304 Part I IPC., and directed to pay a sum of Rs. 3 lakhs to P.W. 2-

Chinnammal, wife of the deceased as compensation within four months from today, in addition to the imprisonment already undergone by him. He

is permitted to make the above payment in two instalments, as requested by his counsel, the first instalment being Rs. 1,50,000/- within two

months from today and the balance of Rs. 1,50,000/- in the next two months'' period.

Regarding the mode of payment, it is made clear, that the Appellant-Arjunan is directed to deposit the first instalment of Rs. 1,50,000/- within

two months, and the second instalment of Rs. 1,50,000/- within four months today, in Canara Bank, Moolanur Branch, Periyar District, in the

name of P.W. 2-Chinnammal, wife of the deceased, and hand over the pass book and chalans for such payments to her in the presence of

Principal Sessions Judge, Erode. The Principal Sessions Judge, Erode, is directed to send intimations to this Court, with reference to the handing

over of these passbook and chalans on the respective dates, without any delay. In default of the payment of the above said compensation within

the period stipulated, the appellant-Arjunan is directed to undergo R.I. for seven years, including the period already undergone by him, for the

offence u/s 304 Part I IPC.

With these observations, C.A. No. 486 of 1987 is allowed in part.

Appeal partly allowed.