N Criminal Appeal Nos
59 and 60 of 1972
Appeals by Special Leave from the Judgment and order dated 23 9 1971 of the Punjab and Haryana High Court in Cr1
A 512 of 1970
R L Kohli and U P Singh for the Appellants
A section Sohal Hardev Singh and R section Sodhi for the Respondent
The Judgment of the Court was delivered by KAILASAM J
The two criminal appeals Nos 59 and 60 of 1972 are by special leave
Criminal Appeal No 59 of 1972 is preferred by Sarwan Singh Karnail Singh Zora Singh and Malkiat Singh while Criminal Appeal No 60 of 1972 is by Bachan Singh against their conviction and sentence imposed on them by the trial court and confirmed by the Punjab and Haryana High Court in Criminal Appeal No 512 of 1970
This Court granted special leave in both cases limited to the question as to whether the offence committed by the appellants is one punishable under section 300 IPC or under any part of section 304 IPC The facts necessary for determining what offence the accused were guilty of may be stated
Sant Singh is the father of Sarwan Singh Bachan Singh and Mewa Singh
Sarwan Singh is the first appellant in Criminal Appeal No 59 of 1972 and Bachan Singh is the sole appellant in Criminal Appeal No 60 of 1972
The deceased Mewa Singh is their brother
Sarwan Singh had two sons Zora Singh and Karnail Singh who are appellants Nos 3 and 2 in Criminal Appeal No 59 of 1972
Sarwan Singh s daughter was married to Malkiat Singh who is the fourth appellant in Criminal Appeal No 59 of 1972
Pending appeal Sarwan Singh and Bachan Singh have died and their appeals have abated
We are therefore concerned only with Karnail Singh Zora Singh and Malkiat Singh who are appellants Nos 2 3 and 4 in Criminal Appeal No 59 of 1972
The deceased is the brother of the two accused and paternal uncle of the two other accused
The dispute was over a common Khal of the land and a pahi
The deceased Mewa Singh put an application before the Revenue authority against the accused and the matter was pending when the occurrence took place
On the date of the occurrence 8 9 1969 at about 3 PM PW 3 Mohinder Singh went to Amar Singh PW 5 who is Lambardar of his village in connection with the mutation of his land
Amar Singh was grazing his cattle near the minor canal just opposite to the well 386 of the accused and the deceased Mewa Singh
When PW 3 was 20 Kadams away from the place where Amar Singh was grazing his cattle he heard a Raula coming from the side of tube well of Mewa Singh
Hearing the noise PW 3 ran towards their place of the occurrence
He also saw PW 5 Amar Singh and Mohinder Singh son of Thakar Singh PW 4 also running towards the place of occurrence
The three witnesses and Ujagar Singh PW 9 who are eye witnesses spoke to the actual incident as follows When they reached near the place of occurrence they heard Zora Singh shouting to Mewa Singh
Zora Singh was armed with a Gandasi Karnail Singh was holding a Takwa Malkait Singh was armed with a Gandasi and Sarwan Singh and Bachan Singh were having a Lathi each
Zora Singh gave a Gandasi blow to Mewa Singh who raised his hands to ward off the blow and sustained injury
Karhail Singh then gave a Takwa blow to Mewa Singh which he warded off by raising his hands and got an injury on his hand
Zora Singh and Karnail Singh gave more injuries with their respective weapons
Therefore all the accused started causing injuries to Mewa Singh with their respective weapons while he was Lying on the ground
 On the evening at about 830 PM PW 14 saw Mewa Singh and enquired from the doctor whether he was in a fit condition to make a statement
The doctor gave his opinion that Mewa Singh was not fit to make a statement
Mewa Singh s condition was found to be not satisfactory and therefore he was moved to Civil Hospital Ludhiana
He died at 540 pm
On 9 9 1969
The doctor noted 27 injuries on the person of Mewa Singh
According to the doctor the cause of death was shock and haemorrhage and the injuries were ante mortem and sufficient in the ordinary course of nature to cause death
Dr Jagjit Singh PW 5 examined Mewa Singh on admission to the hospital at 645 pm
On 8 9 1969 and found 27 injuries on Mewa Singh of which injuries 2 and 3 were grievous
Injuries at 3 5 to 9 11 to 17 were caused by sharp edged weapons
All the injuries except 2 and 3 were simple in nature
The trial court was of the view that the question for consideration was whether the accused intended to inflict the injuries in question and if once the existence of injuries sufficient to cause death is proved the intention to cause death will be presumed unless the evidence or the circumstances warrant an opposite conclusion
In this view the trial court found all the accused guilty under section 302 read with section 149 of the Indian Penal Code
The High Court found that 387 the common object was clearly to kill the deceased and the offence fall under section 300
Thirdly read with section 34 Indian Penal Code
The facts of the case disclose that five accused armed with various weapons caused the injuries to the deceased which resulted in his death
If a person causes an injury with the intention of causing bodily injury to any person and when the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death the offence would fall under clause iii of section 300 and would be punishable under section 302 of the Indian Penal Code
The five accused were convicted by the trial court for an offence under section 302 read with section 149 IPC
In order to find the person guilty of offence under section 302 read with section 149 the prosecution must establish that the offence was committed by any member of an unlawful assembly in prosecution of the common object of the assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object
It is therefore necessary for the prosecution to establish that the common object of the unlawful assembly was to commit an offence under section 300 or that the members of the assembly knew it to
be likely that an offence under section 300 would be committed in prosecution of the common object
The cumulative effect of the injuries was no doubt found to have been sufficient in the ordinary course of nature to cause death
If the injuries that are sufficient in the ordinary course of nature to cause death are traced to a particular accused he will be guilty of an offence punishable under section 302 without the aid of section 149 when the injuries caused are cumulatively sufficient to cause death it is necessary before holding each of the accused guilty under section 302 read with Section 149 to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence punishable under section 302 IPC would be committed in prosecution of the common object
In order to determine this question it is necessary to refer to the injuries caused in some detail Two grievous injuries are injuries 2 and 3 described in exhibit PD
Injury No 2 is an incised wound 34 x 14 bone deep on the right little finger at its middle and injury No 3 is incised wound 13 distal to injury No 2 at the right little finger cutting the bone underneath
The grievous injury is the fracture and cutting of the Light little finger caused by a sharp edged weapon
All the other injuries are simple in nature
The injuries Nos 1 to 3 5 to 9 11 to 17 were caused by sharp edged weapon
Injury No 1 is incised wound 12  x 16 muscle deep on the left palm in between the left thumb and index 388 finger
Injury No 2 is incised wound 34 x 14 bone deep on the right little finger at its middle
Injury No 3 is incised wound 13 distal to Injury No 2 at the right little finger cutting the bone underneath
Injury No 5 is incised wound 2 x 14 muscle deep on the left shin at its middle areas
Injury No 6 is incised wound 12 x 14 on the left shin
Injury No 7 is incised wound 13 x 14 muscle deep on the left shin
Injury No 8 is incised wound 13x 14 muscle deep on the left shin
Injury No 9 is incised wound 34 x 13 muscle deep on the left shin
While Injury No 1 is on The left palm in between the left thumb and index finger injuries Nos 2 and 3 on the right little finger at its middle injuries Nos 5 to 9 are in the area of the left shin
Most of the injuries are only 14 deep while injury No 9 is 13 deep and injury No 1 is 16 in depth
The other injuries Nos 11 to 17 are on the right shin and are incised wounds most of which are of the size of 1 34 x 14
The other injuries are contusions in the chest area on the right and the left side the with not exceeding 34 of an inch
Injury No 26 is on the head of the dimension of 1 34 X 14 muscle deep on the left side of the head 3 above the left ear
All the injuries are described by the do tor as simple
The depth of the incised injuries is not more than of an inch and the width of the contusions is not more than 34
The area of the injury cannot be said to be a vital part of the body
The injury on the head is only 1 in depth and has not caused any damage
On an analysis of the injuries it cannot be said that any of the persons that inflicted injuries intended to cause death or such injury as is sufficient in the ordinary course of nature to cause death
If the common object of the unlawful assembly was to commit murder and in prosecution of the common object of the unlawful assembly any member caused an injury which is sufficient in the ordinary course of nature to cause death the members of the assembly would be liable for an offence under section 302 IPC read with 149 IPC but on a consideration of the injuries we are not satisfied that the common object of the unlawful assembly was to cause death
Taking the circumstance that the unexpected quarrel was between the members of the same family over a dispute as to water rights we are unable to held that offence under section 302 read with section 149 is made out
On a consideration of the circumstances and the nature of the injuries it is not possible to hold that the common object of the assembly was to cause bodily injury which is sufficient in the ordinary course of nature to cause death
It can be said that the common object of the assembly was to cause bodily injury as is likely to cause death
Though the doctor has stated that the injuries were sufficient in the ordinary course of nature to cause death we find it difficult to hold that the injuries cumulatively were sufficient in the ordinary course of nature 389 to cause death
The common object of the assembly in the circumstances can only be said to cause injuries which are likely to cause death which will be an offence punishable under section 3041 of the Indian Penal Code
In the circumstances we set aside the conviction under section 350 read with section 34 IPC but find the appellants are guilty of an offence punishable under section 3041 read with section 149 IPC and sentence them to five years rigorous imprisonment and a fine of Rs 3500 each
In this case the death was caused by the brothers in a quarrel regarding water rights
From the records we are satisfied that the accused are possessed with sufficient funds to compensate at least to some extent the loss that has been suffered by the dependants of the deceased
The law which enables the Court to direct compensation to be paid to the dependants is found in section 357 of the Code of Criminal Procedure Act 2 of 1974
The corresponding provision in the 1898 Code was section 545
Section 545 of the Code of Criminal Procedure Act 5 of 1898 was amended by Act 18 of 1923 and by Act 26 of 1955
The amendment which is relevant for the purpose of our discussion is 5251bb which for the first time was inserted by Act 26 of 1955
By this amendment the court is enabled to direct the accused who caused the death of another person to pay compensation to the persons who are under the Fatal Accidents Act entitled to recover damages from the persons sentenced for the loss resulting to them from such death
In introducing the amendment the Joint Select Committee stated when death has been caused to a person it is but proper that his heirs and dependants should be compensated in suitable cases for the loss resulting to them from such death by the person who was responsible for it
The Committee proceeded to state that though section 545 of the Code as amended in 1923 was intended to cover such cases the intention was not however very clearly brought out and therefore in order to focus the attention of the courts on this aspect of the question the Committee have amended section 545 and it has been made clear that a fine may form a part of any sentence including a sentence of death and it has also been provided that the persons who are entitled under the  to recover damages from the person sentenced may be compensated out of the fine imposed
It also expressed its full agreement with the suggestion that at the time of awarding judgment in a case where death has resulted from homicide the court should award compensation to the heirs of the deceased
The Committee felt that this will result in settling the claim once for all by doing away with the need for a further claim to a civil Court and avoid needless worry and expense 390 to both sides
The Committee further agreed that in cases where the death is the result of negligence of the offender appropriate compensation should be awarded to the heirs
By the introduction of clause bb to section 5451 the intention of the legislature was made clear that in suitable cases the heirs and dependents should be compensated for the loss that resulted to them from the death from a person who was responsible for it
The view was also expressed that the court should award compensation to the heir of the decease so that their claims would be settled finally
This object is sought to be given effect to by section 357 of the new Code Act 2 of 1974
Section 3573 provides that when a court imposes a sentence of which fine does not form a part the Court may when passing judgment order the accused person to pay by way of compensation such amount as may be specified in the order to the person who has sufered any loss or injury by reason of the act for which the accused person has been so sentenced
The object of the section therefore is to provide compensation payable to the persons who are entitled to recover damages from the person sentenced even though fine does not form part of the sentence
Though section 545 of 1898 Code enabled the court only to pay compensation out of the fine that would be imposed under the law by section 3573 when a Court imposes a sentence of which fine does not form a part the Court may direct the accused to pay compensation
In awarding compensation it is necessary for the court to decide whether the case is a fit one in which compensation has to be awarded
If it is found that compensation should be paid then the capacity of the accused to pay a compensation has to be determined
In directing compensation the object is to collect the fine and pay it to the person who has suffered the loss
The purpose will not be served if the accused is not able to pay the fine or compensation for imposing a default sentence for non payment of fine would not achieve the object
If the accused is in a position to pay the compensation to the injured or his dependents to which they are entitled to there could be no reason for the Court not directing such compensation
When a person who causing injury due to negligence or is made vicariously liable is bound to pay compensation it is only appropriate to direct payment by the accused who is guilty of causing an injury with the necessary Mens Rea to pay compensation for the person who has suffered injury
In awarding compensation as cautioned by this Court in a decision reported in Palaniappa Gounder vs State of Tamil Nadu the Court should not first consider what compensation ought to be awarded to the heirs of the deceased and then impose a fine which is higher than the compensation
It is the duty of the Court to take into account the 391 nature of the crime the injury suffered the justness of the claim for compensation the capacity of the accused to pay and order relevant circumstances in fixing the amount of fine or compensation
After consideration of all the facts of the case we feel that in addition to the sentence of 5 years rigorous imprisonment a fine of Rs 3500 on each of the accused under section 3041 IPC should be imposed
The fine will be paid as compensation to the widow of the deceased Mewa Singh
Tn default of payment of fine the accused will undergo further Simple imprisonment for 6 months
SR Appeals dismissed


Summary:
The deceased Mewa Singh is the brother of the two accused Sarwan Singh and Bachan Singh and the paternal uncle of two other accused Karnail Singh and Zora Singh sons of Sarwan Singh Malkait Singh the other accused is the son in law of Sarwan Singh
They are thus close relatives and there was dispute over a common khal of the land and pahi
The deceased had put an application before the Revenue Authority against the accused and the matter was pending when the occurrence took place on 8 9 1969
The deceased was attacked by the accused with deadly weapons resulting in as many as 27 injuries of which injuries 2 and 3 were grievous
The deceased died the next day in the civil hospital
The cause of death was shock and haemorrhage and the injuries were ante mortem and sufficient in the ordinary course of nature to cause death
The trial court found all the five accused guilty under section 302 read with section 149 IPC and punished them taking the view that once the existence of injuries sufficient to cause death is proved the intention to cause death will be presumed unless the evidence or the circumstances warrant an opposite conclusion
The High Court in appeal from that the common object was clearly to kill the deceased and that the offence fell under section 300
Thirdly read with section 34 IPC and accepted the trial court s Judgment
Dismissing the appeals by special leave the Court  HELD 1 If a person causes an injury with the intention of causing bodily injury to any person and when the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death the offence would fall under clause iii of section 300 and would be punishable under section 302 IPC 387 B 2 In order to find the person guilty of offence under section 300 read with section 149 the prosecution must establish that the offence was committed by any member of an unlawful assembly in prosecution of the common object of the assembly or such as the members of that assembly knew it to be likely to be committed in prosecution of the common object
It is therefore necessary for the prosecution to establish that the common object of the unlawful assembly was to commit an offence under section 300 or that the members of the assembly knew it to be likely that an offence under section 300 punishable under section 302 IPC would be committed in prosecution of the common object
387 B D 3 If the injuries that are sufficient in the ordinary course of nature to cause death are traced to a particular accused he will be guilty of an offence under section 300 punishable under section 302 without the aid of section 149 when the injuries caused are cumulatively sufficient to cause death it is necessary before holding 384 each of the accused guilty under section 300 read with section 149 to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence punishable under section 302 IPC would be committed in prosecution of the common object
387 D F In the instant case on an analysis of the injuries a it cannot be said that any of the persons that inflicted injuries intended to cause death or such injury as is sufficient in the ordinary course of nature to cause death
b The circumstance that unexpected quarrel was between the members of the same family over a dispute as to water rights shows that no offence under section 300 read with sec
149 IPC punishable under section 302 IPC has been made out
c the common object of the assembly was to cause bodily injury as is likely to cause death
Though the doctor has stated that the injuries were sufficient in the ordinary course of nature to cause death it is difficult to hold that the injuries cumulatively were sufficient in the ordinary course of nature to cause death
The common object of the assembly in the circumstances can only be said to cause injuries which are likely to cause death which will be an offence punishable under section 3041 of the Indian Penal Code
388 E H 389 A 4 a The object of section 3573 is to provide compensation payable to the persons who are entitled to recover damages from the person sentenced even though fine does not form part of the sentence
Though section 545 of 1898 Code enabled the court only to pay compensation out of the fine that would be imposed under the law by section 357 3 when a court imposes a sentence of which fine does not form a part the Court may direct the accused to pay compensation
390 D E b In awarding compensation it is necessary for the court to decide whether the case is a fit one in which compensation has to be awarded
If it is found that compensation should be paid then the capacity of the accused to pay a compensation has to be determined
In directing compensation the object is to collect the fine and pay it to the person who has suffered the loss
The purpose will not be served if the accused is not able to pay the fine or compensation for imposing a default sentence for non payment of fine would not achieve the object
If the accused is in a position to pay the compensation to the injured or his dependent to which they are entitled to there could be no reason for the court not directing such compensation When a person who caused injury due to negligence or is made vicariously liable is bound to pay compensation it is only appropriate to direct payment by the accused who is guilty of causing an injury with the necessary mens rea to pay compensation for the person who has suffered injury
390 E G c The court should not first consider what compensation sought to be awarded to the heirs of the deceased and then impose a fine which is higher than the compensation
It is the duty of the court to take into account the nature of the crime the injury suffered the justness of the claim for compensation
the capacity of the accused to pay the other relevant circumstances in fixing the amount of fine or compensation
390 G H 391 A Palaniappa Gounder vs State of Tamil Nadu  applied
The Court altered this conviction of offence punishable under section 3041 read 385 with section 149 and sentenced to 5 years R I and a fine of Rs 3500 each the fine to be paid as compensation to the widow of the deceased