Criminal Appeal No 74  75 of 1986
From the Judgment and Order dated 13111984 of the Punjab and Haryana High Court in Crl
Appeal No 128 SP of 1984
RL Kohli RC Kohli and DD Sharma for the Appellant in Crl
A No 74 of 1984
DS Tewatia and Mahabir Singh for the appellant in Crl
A No 75 of 1984
UR Lalit RS Yadav and HM Singh for the Respondents
The Judgment of the Court was delivered by PG NO 573 JAGANNATH SHETTY J
These two appeals by special leave are directed against a judgment of the High Court of Punjab  Haryana in Criminal Appeal No 128 SP of 1984
The common respondents in the appeals
were prosecuted for various offenses in the court of Additional Sessions judge Faridkot
By judgment dated February 281984 learned Judge convicted and sentenced the accused as follows Keeping in view the circumstances of the case and the part played by each of them I hereby sentence Sukhbir Sukhpal and Surat Singh accused to undergo RI for four years us 307149 IPC
Each of Om Pal Dhan Pal Mannu and Siri Chand are ordered to undergo RI for three year
us 307149 IPC
Each of the seven accused are further ordered to undergo RI for one year 148 IPC two years RI us 325 149 IPC and one year R I su 323149 IPC
Keeping in view the circumstances of the case
all the sentences shall run concurrently   The accused appealed t the High Court challenging the conviction and sentence
The High Court by the judgment under appeals acquitted Sukhpal Singh and Surat singh of all charges by giving them the benefit of doubt
The other accused who are respondents herein are also acquitted of the offence under section 307149 and section 148 IPC
There conviction and sentence under section 325149 323149 and section 148 IPC are however
maintained
They are released on probation of good conduct
Each one of them is ordered to pay compensation of Rs 2500 to Joginder who was seriously injured in the incident
In default to pay the compensation they are directed to serve their sentence
The operative portion of the judgment runs like this There is no previous history of enmity between to parties
The occurrence is the outcome of a sudden flare up
I think these five appellants namely Sukhbir Singh Dhanpal Mannu Siri Chand and Om Pal are entitled their benefit under section 360 Cr
Consequently I suspend their sentence under section 325149 323149 and section 148 IPC and order that the appellants namely Sukhbir Singh Dhan Pal Mannu
Siri Chand and Om Pal be released on probation on their entering into bonds of Rs3000 each with one surety in the like amount for a period of one year to the satisfaction of the trial PG NO 574 court undertaking to appear in the court to receive the sentence during the said period whenever called upon to do so and in the meantime to keep peace and be of good behavior
However each one of the appellant would pay Rs2500 as compensation payable to Joginder injured
Compensation if not paid within two months the appellants namely Sukhbir Singh Dhanpal
Mannu Siri Chand and Om Pal would be called upon to serve their sentence
But for this modification appeal fails and is hereby dismissed
In view of section 12 of the  no disqualification would attach to the appellants due to this conviction
Sd KPSSandhu Judge Dt
November 13 l984 In these appeals there is no serious dispute with regard to acquittal of Sukhpal Singh and Surat Singh
The prosecution case that they were armed with Barchha has not been proved
There was no incised injury on the victim or any of the prosecution witnesses
Their participation in the commission of crime therefore appears to be doubtful
The High Court was justified in acquitting them
Counsel for the appellants are however vary critical of the order of High Court with regard to the remaining accused
It is urged that the High Court was too much charitable to them
The intention of accused was obviously to commit murder of joginder
Their acquittal under section 307 IPC is characterised as perverse
At any rate it is said that they ought not have been put on probation
It is an abuse of the process of Court
They should have been properly sentenced by term of imprisonment and fine
It is also urged that Joginder has sustained permanent disability due to head injury and no amount of compensation would be adequate for him except severe punishment to the accused as a general deterrence
Counsel for the accused on the other hand seeks to support the order of the High Court in every respect
In the light of the submissions three questions arise consideration i whether the respondents are not guilty of the offence under section 307149 IPC ii whether the High Court was justified in extending the benefit of section 360 Cr
PC and releasing the accused on probation of good conduct and iii whether the compensation awarded to PG NO 575 Joginder could be legally sustained and if so what should be the proper compensation  For a proper consideration of these questions we may summarise briefly the factual background The rival parties in this case are collaterals
On September 28 1982 at about 89 am they had an altercation near the tubewell belonging to Hari Kishan
Joginder is the son of Hari Kishan
Virender another injured in this case is nephew of Hari Kishan
Hari Kishan was sitting near his tubewell
Virender and Joginder were sowing Berseem crop
The accused carne from the side of the tubewell
They were armed with Ballams and Dangas
One of them raised a Lalkara at which the accused attacked Virender and Joginder
In the brawl that followed some of the accused were also injured
The injured were removed to Civil Hospital Ballabgarh
The Medical Officer there referred them to Safdarjung Hospital New Delhi
Finally they landed themselves at the AIIMS New Delhi
They were examined by the Doctors
Virender was found to have two injuries caused by blunt weapons
Joginder was found to have head injury
Amongst the accused Siri Chand Dhan Pal Om Pal and Sukhbir Singh were injured
They were medically examined in AIIMS or Safdarjung Hospital New Delhi
Siri Chand had four injuries including a fracture caused by blunt weapon
that has been proved by Dr Rita Sood DW1
Dhan Pal and Om Pal each had four injuries but simple
They were also caused by blunt weapons
Dr VK Dhingra DW 2 has spoken to that
Sukhbir singh had one incised wound on his person
Anurag Saxena DW 3 has testified
On the first question as to acquittal of the accused under s3O7149 IPC some significant aspects may be borne in mind
Under s307 IPC what the Court has to see is whether the act irrespective of its result was done with the intention or knowledge and under circumstances mentioned in that section
The intention or knowledge or the accused must be such as is necessary constitute  murder
Without this ingredient being established there can be no offence of attempt to murder
Under section 307 the intention precedes the act attributed to accused
Therefore the intention is to be gathered from all circumstances and not merely from the consequences that ensue
The nature of the weapon used manner in which it is used
motive for the crimeseverity of the blow the part of the body where the injury is inflicted are some of the factors that may be taken into consideration itdetermine the intention
In this case two parties in the course of a fight inflicted on each other injuries both serious and minor
The accused though armed with ballam never used the sharp edge of it
PG NO 576 They used only the blunt side of it despite they being attacked by the other side
They suffered injuries but not provoked or tempted to use the cutting edge of the weapon
It is very very significant
It seems to us that they had no intention to commit murder
They had no motive either
The fight as the High Court has observed might have been a sudden flare up
Where the fight is accidental owing to a sudden quarrel the conviction under section 307 is generally not called for
We therefore see no reason to disturb the acquittal of accused under section 307 IPC
The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct  We gave our anxious consideration to the contentions urged by counsel
We are of opinion that the High Court has not committed any error in this regard also
Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation
In placing such type of offenders on probation the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison
In this case
the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up
These are not shown to be incorrect
We have already said that the accused had no intention to commit murder of any person
Thereforethe extension of benefit of the beneficial legislation applicable to first offenders cannot be said to be inappropriate
This takes us to the third questions which we have formulated earlier in this judgments
The High Court has directed each of the respondents to pay Rs 2500 as compensation to Joginder
The High Court has not referred to any provision of law in support of the order of compensation
But that can be traced to section 357 Cr
PC Section 357 leaving aside the unnecessary provides  357
Order to pay compensation  1 When a court imposes a sentence of fine or a sentence including a sentence of death of which fine forms a partthe Court may
when passing judgment
order the whole or any part of the fine recovered to be applied a in defraying the expenses properly incurred in the prosecution PG NO 577 b in the payment to any person of compensation for any loss or injury caused by the offence
when compensation is in the opinion of the Court recoverable by such person in a civil Court XXXXX XXXXX XXXX XXXXX XXXXX XXXXX 3 When a Court imposes a sentence of which fine does not 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 power of revision
5 At the time of awarding compensation in any subsequent civil suit relating to the same matter
the Court shall take into account any sum paid or recovered as compensation under this section
 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 re assure 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 thereforerecommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way
PG NO 578 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 installments may also be given
The Court may enforce the order by imposing sentence in default
Joginder in this case is an unfortunate victim
His power of speech has been permanently impaired
Doctor has certified that he is unable to speak and that is why he has not stepped into the witness box for the prosecution
The life long disability of the victim ought not to be bye passed by the Court
He must be made to feel that the Court and accused have taken care of him
Any such measure which would give him succor is far better than a sentence by deterrence
The compensation awarded by the High Court in our opinion appears to be inadequate having regard to the nature of injury suffered by Joginder
We have ascertained the means of accused and their ability to pay further sum to the victim
We are told that they are not unwilling to bear the additional burden
Mr Lalit learned counsel said that his clients are willing to pay any amount determined by this Court
It is indeed a good gesture on the part of counsel and his clients
With due regard to all the facts and circumstances of the case we consider that Rs50000 compensation to Joginder would meet the ends of justice
We direct the respondents to pay the balance within two months in equal proportions
The order of the High Court is modified only to the extent of Compensation as indicated above and in all other respects it is kept undisturbed
The appeals are accordingly disposed of
RSS Appeals disposed of


Summary:
The mortgagee in possession leased out the shop to the appellant and delivered possession
His entering of possession became a subject matter of dispute with respondent No 2 in which the appellant was dispossessed
In the proceedings initiated under section 145 Cr
PC theMagistrate found that the appellant was entitled to restoration of possession since he was dispossessed forcibly and wrongfully within the terms of proviso to section 145 4 Cr
The respondent filed a suit and obtained temporary injunction against the appellant
That injunction was vacated by the Additional District Judge who found that the appellant was in possession of the shop on the date of occurrence of incident
The respondents revision application challenging the final order under s1456 Cr
PC was dismissed by the Sessions Judge
Accepting respondents petition under section 482 Cr
PC for quashing the proceedings under section 145 the High Court following the judgment in Rum Sumer Puri Mahant vs Srate of U P  took the view that since the civil proceedings in respect of the disputed premises were pending before the competent civil court where interim reliefs have been prayed for and obtained there was no justification for continuing the proceedings under section 145 Cr
PC pending before the SDM
Allowing the appeal by special leave HELD The High Court was in error in quashing the proceedings under section 145 Cr
PC pending before the Sub Divisional Magistrate
589F 587EF An order made under section 145 Cr
PC deals only with the factum of possession of the party as on a particular day
It PG NO 584 PG NO 585 confers no title to remain in possession of the disputed property
The order is subject to decision of the civil court
The unsuccessful party therefore must get relief only in the civil court
He may move the civil court with properly constituted suit
He may file a suit for declaration and prove a better right to possession
The civil court has jurisdiction to give a finding different from that which the Magistrate has reached
589D E The ratio of the decision in Ram Sumer Puri Mahant vs State of UP is that a party should not be permitted to Litigate before the criminal court when the civil suit is pending in respect of the same subject matter
That does not mean that a concluded order under section 145 Cr
PC made by the Magistrate of competent jurisdiction as in the instant case should be set at naught merely because the unsuccessful party has approached the civil court
589C D