CRL.R.C.NO.271 OF 2006 The Ist Petitioner/A-1 Viz., Muthu was directed to be released on bail as per the Order of this court dated 27.3.2006 and made in Crl.M.P.No.1608/06 in Crl.R.C.No.271/06. The 2nd petitioner/A-2 viz., Sankar was directed to be released on bail as per the Order of this Court dated 30.5.06 and made in Crl.M.P.No.3315/06 in Crl.R.C.No.271/06. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.06.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.R.C.No.271 of 2006 1. Muthu 2. Sankar .. Petitioners/Accused Vs. State by Inspector of Police, Veppam Kuppam PS, Vellore District. Crime No.764/02 .. Respondent/Complainant Criminal Revision Case against the judgment dated 20.12.2005 in Crl.A.No.100 of 2004 on the file of the Additional District and Sessions Judge (Fast Track Court), Vellore, against the judgment dated 8.7.2004 in S.C.No.304 of 2003 on the file of the Assistant Sessions Judge-cum-Chief Judicial Magistrate, Vellore. For petitioners : Mr.G.Karthik for M/s.T.S.Gopalan & Co. For respondent : Mr.C.Emalias and Ms.MF.Shabana Govt. Advocates (Crl. Side) ORDER Criminal Revision Case is filed against the judgment dated 20.12.2005 in Crl.A.No.100 of 2004 on the file of the Additional District and Sessions Judge (Fast Track Court), Vellore, against the judgment dated 8.7.2004 in S.C.No.304 of 2003 on the file of the Assistant Sessions Judge-cum-Chief Judicial Magistrate, Vellore. 2. The trial Court convicted the first revision petitioner/A1 for the offence under Section 342 IPC and sentenced him to undergo rigorous imprisonment for six months and to pay fine of Rs.500/-, in https://hcservices.ecourts.gov.in/hcservices/ default, to undergo rigorous imprisonment for two months; he was also convicted for the offence under Section 307 read with 34 IPC and sentenced to undergo rigorous imprisonment two years and to pay fine of Rs.7,500/-, in default, to undergo rigorous imprisonment for four months. The second revision petitioner/A2 was convicted for the offence under Section 307 IPC and sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year; he was also convicted for the offence under Section 342 read with 34 IPC and sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs.500/-, in default, to undergo rigorous imprisonment for two months. 3. The first appellate Court modified the judgment of the trial Court and convicted the first revision petitioner/A1 for the offence under Section 308 read with 109 IPC and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.7,500/-, in default, to undergo rigorous imprisonment for four months. The second revision petitioner/A2 was convicted for the offence under Section 308 IPC and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for six months. 4. The skeleton of the prosecution case is as follows: P.W.1 Duraisamy is cultivating the land belonging to his brother Punniyamurthi. The first revision petitioner/A1 is the father of the second revision petitioner/A2. Both the revision petitioners/A1 and A2 and P.W.1 are the residents of the same village. Admittedly, there was dispute in respect of the land. P.W.1 was cultivating the land of 40 cents belonging to his deceased brother Punniyamurthi. The accused wanted to purchase the property and P.W.1 did not accept for the same. The property was surveyed and it was found that 4-1/2 cents of land belonging to the revision petitioners/A1 and A2, were included in the land belonging to Punniyamurthi. After survey by the surveyor in the presence of P.W.6 Adikesavan, Village Administrative Officer, as per Ex.D-1, it was found that 4-1/2 cents had been included in the property of Punniyamurthi and after the said survey, the accused occupied 4-1/2 cents of land and put up edge (tug;g[) and so, this act enraged P.W.1. On 26.12.2002 at about 5.35 p.m., when A1 was going through the land of the deceased Punniyamurthi, P.W.1 prevented him to pass through the way. At that time, A1 uttered words as to why he prevents him to use the way and it is better to finish him off and caught hold of P.W.1 and directed A2 to attack him. P.W.1 wanted to escape from A1, and there was scuffle between them. A1 instructed his son A2 who was coming from the opposite direction, by saying to finish him off, and at that time, A2 assaulted P.W.1, which was prevented by him by his left hand and his left hand below elbow was severed. P.W.1 raised alarm. The incident was witnessed by P.W.4 Nirmala. Immediately, P.W.1's wife P.W.3 Chandra rushed to the place https://hcservices.ecourts.gov.in/hcservices/ of occurrence and at that time, the accused ran away from the place. P.W.1 was taken to Government Hospital, where P.W.2 Dr.Beemaraj treated him and he issued Ex.P-2 accident register and he sent intimation Ex.P-3. The intimation was received by P.W.8 Inspector of Police and he rushed to the hospital and recorded the statement of witness and prepared Ex.P-1 complaint from P.W.1 and he registered a case in Crime No.764 of 2002 for the offences under Sections 307 and 341 IPC on the same day at 22.30 hours and prepared the printed FIR Ex.P-9. On the very next day, he went to the place of occurrence at 6 am and prepared observation mahazar Ex.P-7 and drew rough sketch Ex.P-10 and seized M.Os.4 and 5 under Ex.P-8 in the presence of P.W.7 Munirathinam and Murugesan. He examined the witnesses and recorded their statements. At 5 p.m., he visited the hospital and examined P.W.1 and recorded his statement under Section 161 Cr.P.C. and seized M.Os.1 and 2, the blood stained dhoti and shirt in the presence of P.W.5 Varadaraj under Ex.P-4. On 28.12.2002 at 11.30 a.m., he arrested the accused near Melarasampattu Bommasanthu and at that time, A2 gave a confession, which was recorded in the presence of P.W.6 V.A.O. and Selvaraj. In the confession, he has stated that he is ready to produce the hidden weapon and at the admitted portion of the confession is marked as Ex.P-5 and on the basis of the same, he handed over M.O.3 knife which was seized in the presence of the same witnesses, under Ex.P-6. P.W.8 Inspector of Police gave requisition Ex.P-11 for sending the material objects for chemical examination and the report is marked as Ex.P-12. He sent the accused to judicial custody and examined the other witnesses and concluded his investigation and filed the charge sheet under Sections 307 and 342 read with 34 IPC. 5. The trial Court, after framing necessary charges, examined the witnesses P.Ws.1 to 8 and marked Exs.P-1 to P-12 and Ex.D-1 and M.Os.1 to 5 and convicted the accused as stated above, against which, the accused preferred appeal and the first appellate Court, after hearing the arguments of both sides, modified the judgment of the trial Court as indicated above, against which, the present Crl.R.C. is filed by the revision petitioners/A1 and A2. 6. Challenging the conviction and sentence passed by the first appellate Court, learned counsel for the revision petitioners/A1 and A2 stated that the occurrence has taken place out of sudden provocation and so, the ingredients of Section 335 IPC alone are made out and not under Section 308 IPC. He culled out the portion of the evidence of P.Ws.1, 3 and 4 and their evidence clearly proved that the revision petitioners/A1 and A2 are having the right of way through the land and the accused had a right of private defence and that factum has not been considered by both the Courts below. He further submitted that P.W.1 alone is the aggressor and that factum also has not been considered by both the Courts below. The offence punishable is neither under Section 326 IPC, nor under Section 308 IPC and the offence under Section 335 IPC alone is attracted. Learned https://hcservices.ecourts.gov.in/hcservices/ counsel further submitted that some leniency may be shown to the accused and compensation could be fixed taking into consideration the financial capacity/paying capacity of the accused. In support of his contentions, learned counsel relied on the decision of the Supreme Court reported in 2004 (1) Crimes 177 (SC) (Mangilal Vs. State of Madhya Pradesh) and also the judgment of the Apex Court in Crl.A.Nos.1052 and 1053 of 2010, dated 11.5.2010. Learned counsel further submitted that his clients are ready to pay Rs.15,000/- as compensation and prayed for allowing the Crl.R.C. 7. Repudiating the said contentions, learned Government Advocate (Crl. Side) submitted that the charges had been levelled against the accused under Section 307 IPC and it is only a typographical error and instead of Section 307 IPC, the offence under Section 308 IPC had been mentioned. While perusing the judgment of the first appellate Court, it is seen that the first appellate Court discussed about Section 308 IPC and in paragraph 10 of the judgment, the first appellate Court simply stated that A-1 is guilty of the offence under Section 308 read with 109 IPC and A-2 under Section 308 IPC. The first appellate Court considered the evidence of P.Ws.1 to 3 and came to the correct conclusion and hence, it does not warrant any interference and he prayed for dismissal of the Crl.R.C. 8. While considering the above submissions of the learned counsel appearing for both sides, as well as the judgments of both the Courts below, and the grounds of appeal raised before the first appellate Court, this Court has to decide as to whether it is a typographical error or the offence has been modified from Section 307 to 308 IPC. 9. It is now appropriate to incorporate Sections 307 and 308 IPC as follows: "Section 307 IPC: Attempt to murder—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life-convicts.--When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death." "Section 308 IPC: Attempt to commit culpable homicide— Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused https://hcservices.ecourts.gov.in/hcservices/ death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both." 10. This Court has to decide as to whether the ingredients of Section 308 IPC or Section 307 IPC, are made out. 11. Learned counsel appearing for the revision petitioners/A1 and A2 submitted that, as usual, A1 passed through the way, which was prevented by P.W.1 and they pushed each other and then only A1 called his son A2 who was coming in the opposite direction and directed him to finish him off. Learned counsel further submitted that because of the attitude/action of P.W.1, out of sudden provocation, the accused were forced to commit the offence and hence, only the ingredients of Section 335 IPC are made out and neither the offence under Section 307 nor Section 308 IPC, is made out. The punishment under Section 308 IPC is less than the punishment under Section 307 IPC. 12. Admittedly, the trial Court has convicted the accused under Section 307 IPC, but the first appellate Court, without assigning reasons, altered the offence to one under Section 308 IPC, against which, no revision petition is preferred by the State. The first appellate Court has convicted A-1 under Section 308 read with 109 IPC and A-2 under Section 308 IPC and sentenced them thereunder. 13. Now, it is appropriate on the part of this Court to find out as to whether the offence attracted is under Section 308 IPC or under Section 335 IPC. It is proper to incorporate Section 335 IPC, as follows: "Section 335: Voluntarily causing grievous hurt on provocation: Whoever voluntarily causes grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to four years, or with fine which may extend to two thousand rupees, or with both. Explanation: The last two sections are subject to same provisos as Exception 1, Section 300." 14. As per the evidence of P.W.1 and P.W.2 Doctor, P.W.1 sustained grievous injury and his left hand below elbow had been severed. Because of the attitude/action of P.W.1, the occurrence has taken place. Admittedly, the accused had no motive to commit the murder. On the fateful day, as usual, when A1 used his way to reach https://hcservices.ecourts.gov.in/hcservices/ his property, he was prevented by P.W.1 and then the occurrence has taken place. The accused is not entitled to the right of private defence since exceeded the limit. That factum has been clearly considered by the trial Court. Considering the evidence of P.W.1, it is clearly proved that at that time, the accused had intention to murder P.W.1. So, A-1 gave direction to his son A-2 by uttering the words to finish him off. A-2 who possessed knife in his hand, assaulted P.W.1, which was prevented by P.W.1, which resulted in severance of P.W.1's left hand below elbow. So, this shows that at the time of commission of the offence, the accused had an intention to commit the murder. In such circumstances, I am of the view that only the ingredients of Section 308 IPC are made out and not under Section 335 IPC. So, the offence under Section 308 read with 109 is made out against A1, since A1 instigated A-2 to commit the offence and Section 308 IPC is made out against A2. While considering the evidence of P.Ws.1, 2 and 3, it is clearly proved that there was enmity between the parties, resulting in the occurrence, beyond reasonable doubt and hence, I concur with the findings of the first appellate Court in respect of the guilt of A-1 under Section 308 read with 109 IPC and A-2 under Section 308 IPC. I do not find any illegality in the conviction passed by the first appellate Court. Therefore, the conviction passed by the first appellate Court against A-1 under Section 308 read with 109 and under Section 308 IPC against A-2, is confirmed. 15. Now, this Court has to consider the argument advanced by learned counsel for the revision petitioners/A1 and A2 that both the accused are agricultural coolies and hence, some leniency may be shown to them. He further submitted that both the accused are ready to pay Rs.15,000/- as compensation to P.W.1 instead of sending them to jail. Learned counsel relied on the judgment of the Apex Court in Crl.A.Nos.1052 and 1053 of 2010, dated 11.5.2010, and he culled out the paragraphs 15 to 17 of the said judgment, which reads as follows: "15. Essentially the section empowers the courts, not to just impose a fine alone or fine along with the sentence of imprisonment, but also when the situation arises, direct the accused to pay compensation to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced. 16. The above view we have taken is supported by the decisions of this Court, to which we presently refer. 17. In the case of Sarwan Singh and ors. Vs. State of Punjab (AIR 1978 SC 1525), this Court has noticed the object and genesis of the section. "10. The law which enables the Court to direct compensation to be paid to the dependants is found in https://hcservices.ecourts.gov.in/hcservices/ Section 357 of the CrPC (Act 2 of 1974). The corresponding provision in the 1898 Code was Section 545. Section 545 of the CrPC (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 545(1)(bb) 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 Fatal Accidents Act, 1855, 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 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 545(1), 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 deceased 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 1973). https://hcservices.ecourts.gov.in/hcservices/ Section 357(3) 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 suffered 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 375(3) 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 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." 16. Relying on the said decision, learned counsel appearing for the revision petitioners/A1 and A2, submitted that while awarding compensation, it is necessary for the Court to decide as to whether it is a fit case to award compensation and if it is found that the compensation should be paid, then the capacity of the accused to pay the compensation has to be determined and in directing payment of compensation, the object is to collect the fine amount and pay it to the person who has suffered the loss. 17. Learned counsel appearing for the revision petitioners/A1 and A2 also relied on paragraphs 7 and 8 of the judgment of the Supreme Court reported in 2004 (1) Crimes 177 (SC) (Mangilal Vs. State of Madhya Pradesh), wherein, the Supreme Court observed as https://hcservices.ecourts.gov.in/hcservices/ under: "7. Sub-section (1) of Section 357 deals with a situation when a Court imposes a fine or a sentence (including sentence of death) of which fine also forms a part. It confers a discretion on the Court to order as to how the whole or any part of fine recovered is to be applied. For bringing in application of sub-section (1) of Section 357 it is a statutory requirement that fine is imposed and thereupon make further orders as to the disbursement of the said fine in the manner envisaged therein. If no fine is imposed, sub-section (1) of Section 357 has no application. In the case at hand no fine was imposed by the trial Court or the High Court. Sub-section (3) on the other hand deals with the situation where fine does not form part of the sentence imposed by a Court. In such a case, the Court when passing a judgment can order the accused persons to pay by way of compensation such amount as may be specified in the order to the person who has suffered a loss or injury by reason of the act of which the accused person has been so convicted and sentenced. The basic difference between sub-section (1) and (3) is that in the former case, the imposition of fine is the basic and essential requirement, while in the latter even in the absence thereof empowers the Court to direct payment of compensation. Such power is available to be exercised by an Appellate Court or by the High Court or Court of Sessions when exercising revisional powers. Sub-section (5) deals with a situation when the Court fixes the compensation in any subsequent civil suit relating to the same matter. While awarding compensation the Court is required to take into account any sum paid or recovered as compensation under Section 357 of the Code. 8. The power of the Court to award compensation to victims under Section 357 is not ancillary to other sentences but is in addition thereto. In Hari Singh Vs. Sukhbir Singh and Ors. (1988 (4) SCC 551) it was observed that the power under Section 357 is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is to some extent, a re-compensatory measure to rehabilitate to an extent