Roy Fernandes Vs. State
of Goa and Ors.
[Criminal Appeal No.
1108 of 2002]
J U D G M E N T
T.S. THAKUR, J.
appeal by special leave arises out of an order dated 22nd July 2002 passed by
the High Court of Bombay at Goa whereby the appeal filed by the appellant has
been dismissed and the conviction and sentence awarded to him by the trial
Court for offences punishable under Sections 143, 148, 323, 325 and 302 read
with Section 149 IPC upheld.
Felicio Monteiro aged about 60 years at the time of the incident was the
President of a Chapel at Bastora in Goa. The Chapel it appears is situated next
to the house of one Rosalina Monteiro. The chapel and the house owned by
Rosalina are accessible from the main road by a path about 20-25 meters in length.
A dispute regarding the said path and resultant litigation was it appears at the
bottom of the incident that culminated in the sad and untimely demise of Felix
11th May, 1997 the deceased Shri Monteiro, his wife PW1 Sebastiana Monteiro,
PW4 Julie Monteiro, her husband PW6 Salish Monteiro besides a few others went to
the Chapel equipped with the necessary tools and implements in order to put up a
fence around the property. The prosecution story is that while pits for fixing
cement poles required for the fencing were being dug in front of the house of
Rosalina Monteiro, her daughter named Antonetta raised an objection and used harsh
words against those engaged in digging the pits work.
A few minutes later a
Maruti Van arrived on the spot carrying "5 persons including the appellant
herein", who went to Salish PW6, - and gave him a fist blow on the face and
he started bleeding. He then gave a blow on the face of the deceased Felix
Felicio Monteiro and threw him on the ground. While the deceased was being
helped by his companions to stand up and move towards the road, Anthony D'Souza
one of the accused persons took out a knife and gave a stab on the left thigh
of the deceased which unfortunately cut one of his arteries that led to profuse
The result was that
the injured breathed his last even before he could be helped by John, his
neighbour to rush him to the hospital. At the hospital, he was declared brought
dead. The hospital all the same informed the Mapusa Police Station. P.I.
Subhash Goltekar-PW22 from the police station recorded the statement of PW1-Sebastiana
Monteiro in which she named the appellant. The police completed the
investigation which included recovery of the weapon of offence pursuant to the
disclosure made by accused No.2, Anthony D'Souza and lodged a chargesheet against
the accused persons for offences punishable under Sections 143, 147, 148, 201, 302
and 323 read with Section 149 IPC.
Sessions Judge to whom the case was -eventually committed charged the accused persons
including the appellant herein with the commission of offences punishable under
Sections 143, 148, 302 read with Section 149 IPC and Sections 323 and 326 read with
Section 149 IPC and Section 201 read with Section 149 IPC. At the trial the
prosecution examined as many as 22 witnesses to prove its case against the accused
persons. The accused persons did not lead any evidence in defence.
Trial Court eventually found all the five accused guilty of offences punishable
under Sections 143, 148, 323, 325 and 302 read with Section 149 IPC and
sentenced each one of them to undergo one month's RI under Section 323 and two months'
RI for the offence punishable under Section 143, three months' RI under Section
148 and one year RI and a fine of Rs.1000/- each under Section 325 besides imprisonment
for life and a fine of Rs.2,000/- for offence punishable under Section 302 of
by the judgment and order of the Trial Court the accused persons preferred Criminal
Appeal Nos. 69/2000 and 77/2000 before the High Court of Bombay at -Goa. By the
impugned judgment in this appeal the High Court upheld the conviction and sentence
awarded to the appellant, Roy Fernandes and Anthony D'Souza while setting aside
the conviction and sentence awarded to the remaining three accused persons
giving them the benefit of doubt. It is noteworthy that against the judgment of
the High Court Anthony D'Souza who had actually stabbed the deceased, preferred
a special leave petition which was dismissed by this Court by order dated 15th April,
2011. To that extent the matter stands concluded. The present appeal is, in
that view, limited to the question whether the conviction and sentence awarded to
the appellant Roy Fernandes for the offences with which he stood charged, is in
the facts and circumstances of the case, legally sustainable.
have heard learned counsel of the parties at considerable length. It is common
ground that the incident in question had taken place on account of a sudden
dispute arising out of the proposed fencing of the Chapel property which act
was apparently seen by Rosalina Monteiro as an obstruction to the use of the
passage/pathway by her for -the beneficial use of the property. There is evidence
on record to suggest that the pending litigation between the villagers on the
one hand and Rosalina on the other hand embittered the relationship between the
parties including that with the deceased.
Putting up of fence around
the Chapel property thus provided a flash point leading to the unfortunate
incident in which a valuable life was lost for no worthwhile reason. From the
deposition of PW1 Sebastiana Monteiro, it is further clear that after the
exchange of hot words between the deceased and his companions on the one hand
and Antonetta, daughter of Rosalina on the other, the latter had made a call to
the appellant who had no connection with the property in question or the dispute
except that he was engaged to get married to Antonetta. As to what transpired over
the telephone between the appellant and Rosalina is not known. Ms. Subhashini,
learned counsel for the State of Goa fairly conceded that PW1 Sebastiana Monteiro
was not a witness to the telephonic conversation between the two.
Looking to the
sequence of events that unfolded on the fateful day what appears to have
happened is that on receiving a telephonic -call from Rosalina, the appellant rushed
to the spot alongwith four others to intervene and possibly prevent the putting
up of the fence by the deceased and his companions, on account of the pending dispute
between the two groups. It is, therefore, reasonable to hold that when the
appellant received a telephonic call from Rosalina possibly asking for help to prevent
the putting up of the fence, the appellant and his companions rushed to the
spot to do so. In the absence of any evidence leave alone credible evidence it
is not possible for us to hold that the accused persons had come to the place
of occurrence with the common object of killing the deceased Felix Felicio
however, is not the end of the matter. The next and perhaps an equally important
question would be whether the appellant and his companions at all constituted 7an
unlawful assembly and if they did whether murder of the deceased Felix Felicio Monteiro
by Anthony D'Souza who was one of the members of the unlawful assembly would in
the facts and circumstances of the case attract the -provisions of Section 149 so
as to make the appellant herein also responsible for the act.
Luthra made a feeble attempt to argue that the acquittal of the other three accused
persons should be sufficient to negative the theory of there being an unlawful
assembly of which the appellant was a member. He did not, however, pursue that argument
for long and, in our opinion, rightly so because the legal position is fairly
well-settled by the decision of this Court in Khem Karan & Ors. Vs. The
State of U.P. & Anr. [1974 (4) SCC 603] where this Court observed: "6.
xxxxxxxxx the fact that a large number of accused have been acquitted and the
remaining who have been convicted are less than five cannot vitiate the conviction
under Section 149 read with the substantive offence if - as in this case the
court has taken care to find - there are other persons who might not have been identified
or convicted but were party to the crime and together constituted the statutory
the same effect is the decision of this Court in Dharam Pal and Ors. Vs. State
of U.P. [1975 (2) SCC 596] where this Court observed:
If, for example, only five known persons are alleged to have participated in an
attack but the Courts find that two of them were falsely implicated, it would
be quite natural and logical to infer - or presume that the participants were
less than five in number. On the other hand, if the Court holds that the assailants
were actually five in number, but there could be a doubt as to the identity of two
of the alleged assailants, and, therefore, acquits two of them, the others will
not get the benefit of doubt about the identity of the two accused so long as there
is a firm finding based on good evidence and sound reasoning that the
participants were five or more in number." 10. Acquittal of three of the five
accused persons comprising the unlawful assembly does not in the light of the
settled legal position make any material difference. So long as there were four
other persons with the appellant who had the common object of committing an
offence the assembly would be unlawful in nature acquittal of some of those who
were members of the unlawful assembly by reason of the benefit of doubt given to
leaves us with the question whether the commission of murder by a member of an unlawful
assembly that does not have murder as its common object would attract the provisions
of Section 149 IPC. Section 149 IPC reads: "149. Every member of unlawful assembly
guilty of offence committed in prosecution of common object. - If an offence is
committed by any member of - an unlawful assembly in prosecution of the common object
of that assembly, or such as the members of that assembly knew to be likely to be
committed in prosecution of that object, every person who, at the time of the
committing of that offence, is a member of the same assembly, is guilty of that
plain reading of the above would show that the provision is in two parts. The
first part deals with cases in which an offence is committed by any member of the
assembly "in prosecution of the common object" of that assembly. The second
part deals with cases where the commission of a given offence is not by itself
the common object of the unlawful assembly but members of such assembly `knew
that the same is likely to be committed in prosecution of the common object of the
assembly'. As noticed above, the commission of the offence of murder of Felix Felicio
Monteiro was itself not the common object of the unlawful assembly in the case at
And yet the assembly
was unlawful because from the evidence adduced at the trial it is proved that the
common object of the persons comprising the assembly certainly was to either
commit a mischief or criminal trespass or any other offence within the
contemplation of clause (3) of Section 141 of the -IPC, which may to the extent
the same is relevant for the present be extracted at this stage: "Section
141 : Unlawful Assembly: An assembly of five or more persons is designated an "unlawful
assembly", if the common object of the persons composing that assembly
is-- First.-- xxxxxxxxxxxxxxxxxxxxxxxx Second.- xxxxxxxxxxxxxxxxxxxxxxxx "Third-To
commit any mischief or criminal trespass, or other offence;"
the evidence on record, we are inclined to hold that even when commission of
murder was not the common object of the accused persons, they certainly had
come to the spot with a view to overawe and prevent the deceased 11by use of criminal
force from putting up the fence in question. That they actually slapped and boxed
the witnesses, one of whom lost his two teeth and another sustained a fracture
only proves that point.
then remains to be considered is whether the appellant as a member of the
unlawful assembly knew that the murder of the deceased was also a likely event in
prosecution of the object of preventing him from putting up -the fence. The
answer to that question will depend upon the circumstances in which the incident
had taken place and the conduct of the members of the unlawful assembly
including the weapons they carried or used on the spot. It was so stated by
this Court in Lalji and Ors. Vs. State of U.P. [1989 (1) SCC 437] in the
following words: "8.xxxxxxxxxxxxxxxxxxxxxx Common object of the unlawful assembly
can be gathered from the nature of the assembly, arms used by them and the behaviour
of the assembly at or before scene of occurrence. It is an inference to be deduced
from the facts and circumstances of each case."
Court elaborated the above proposition in Dharam Pal and Ors. Vs. State of U.P.
[1975 (2) SCC 596] as : "11. Even if the number of assailants could have
been less than five in the instant case (which, we think, on the facts stated above,
was really not possible), we think that the fact that the attacking party was
clearly shown to have waited for the buggi to reach near the field of Daryao in
the early hours of June 7, 1967, shows pre-planning. Some of the assailants had
sharp- edged weapons. They were obviously lying in wait for the buggi to
arrive. They surrounded and attacked the occupants shouting that the occupants will
be killed. We do not think that more convincing evidence of a pre- concert was
Therefore, if we had
thought it necessary, we would not have hesitated to apply Section 34 IPC also to
this case. The principle of vicarious liability does not depend upon the
necessity to convict a required number of persons. It depends upon - proof of
facts, beyond reasonable doubt, which makes such a principle applicable. (See: Yeshwant
v. State of Maharashtra; and Sukh Ram v. State of U.P.). The most general and
basic rule, on a question such as the one we are considering, is that there is no
uniform, inflexible, or invariable rule applicable for arriving at what is
really an inference from the totality of facts and circumstances which varies
from case to case. We have to examine the effect of findings given in each case
on this totality. It is rarely exactly identical with that in another case. Other
rules are really subsidiary to this basic verity and depend for their correct
application on the peculiar facts and circumstances in the context of which
they are enunciated."
then to the facts of the present case, the first and foremost of the notable circumstances
is that the appellant was totally unarmed for even according to the 13prosecution
witnesses he had pushed, slapped and boxed those on the spot using his bare hands.
The second and equally notable circumstance is that neither the cycle chain nor
the belt allegedly carried by two other members of the unlawful assembly was put
to use by them. Mr. Luthra argued that the prosecution had failed to prove that
the assembly was armed with a chain and a belt for the seizure witnesses had not
supported the recovery of the said articles from the accused.
Even if we were to
accept the prosecution case that the two of the members of the unlawful
assembly were armed as alleged, the non-use of the same is a relevant
circumstance. It is common ground that no injuries were caused by use of those weapons
on the person of the deceased or any one of them was carrying a knife. The prosecution
case, therefore, boils down to the appellant and his four companions arriving
at the spot, one of them giving a knife blow to the deceased in his thigh which
cut his femoral artery and caused death.
The question is whether
the sudden action of one of the members of the unlawful assembly constitutes an
act in prosecution of the common object of the unlawful assembly 14namely
preventing of erection of the fence in question and whether the members of the
unlawful assembly knew that such an offence was likely to be committed by any
member of the assembly. Our answer is in the negative.
Court has in a long line of decisions examined the scope of Section 149 of the
Indian Penal Code. We remain content by referring to some only of those decisions
to support our conclusion that the appellant could not in the facts and circumstances
of the case at hand be convicted under Section 302 read with Section 149 of the
Chikkarange Gowda & Ors. Vs. State of Mysore [AIR 1956 SC 731] this Court was
dealing with a case where the common object of the unlawful assembly simply was
to chastise the deceased. The deceased was, however, killed by a fatal injury caused
by certain member of the unlawful assembly. The court below convicted the other
member of the unlawful assembly under Section 302 read with Section 149 IPC. Reversing
the conviction, this Court held: 15 "9.
It is quite clear to
us that on the finding of the High Court with regard to the common object of
the unlawful assembly, the conviction of the appellants for an offence under
Section 302 read with Section 149 Indian Penal Code cannot be sustained. The first
essential element of Section 149 is the commission of an offence by any member of
an unlawful assembly; the second essential part is that the offence must be
committed in prosecution of the common object of the unlawful assembly, or must
be such as the members of that assembly knew to be likely to be committed in prosecution
of the common object.
In the case before us,
the learned Judges of the High Court held that the common object of the
unlawful assembly was merely to administer a chastisement to Putte Gowda. The
learned Judges of the High Court did not hold that though the common object was
to chastise Putte Gowda, the members of the unlawful assembly knew that Putte
Gowda was likely to be killed in prosecution of that common object. That being the
position, the conviction under Section 302 read with Section 149 Indian Penal
Code was not justified in law."
Gajanand & Ors. Vs. State of Uttar Pradesh [AIR 1954 SC 695], this Court approved
the following passage from the decision of the Patna High Court in Ram Charan
Rai Vs. Emperor [AIR 1946 Pat 242]: "Under Section 149 the liability of the
other members for the offence committed during the continuance of the occurrence
rests upon the fact whether the other members knew before hand that the offence
actually committed was likely to be committed in prosecution of the common object.
Such knowledge may reasonably be collected from the nature of the assembly,
arms or behavior, at or before the scene of action. If such knowledge may not reasonably
be attributed to the other members of the assembly then their liability for 16 the
offence committed during the occurrence does not arise".
Court then reiterated the legal position as under: "The question is whether
such knowledge can be attributed to the appellants who were themselves not armed
with sharp edged weapons. The evidence on this point is completely lacking. The
appellants had only lathis which may possibly account for Injuries 2 and 3 on
Sukkhu's left arm and left hand but they cannot be held liable for murder by invoking
the aid of Section 149 IPC. According to the evidence only two persons were armed
with deadly weapons. Both of them were acquitted and Sosa, who is alleged to have
had a spear, is absconding. We are not prepared therefore to ascribe any knowledge
of the existence of deadly weapons to the appellants, much less that they would
be used in order to cause death."
Mizaji and Anr. Vs. State of U.P. [AIR 1959 SC 572] this Court was dealing with
a case where five persons -armed with lethal weapons had gone with the common
object of getting forcible possession of the land which was in the cultivating possession
of the deceased. Facing resistance from the person in possession, one of the
members of the assembly at the exhortation of the other fired and killed the deceased.
This Court held that the conduct of the members of the unlawful assembly was
such as showed that they were determined to take forcible 17possession at any
cost. Section 149 of IPC was, therefore, attracted and the conviction of the members
of the assembly for murder legally justified.
This Court analysed
Section 149 in the following words: "6. This section has been the subject matter
of interpretation in the various High Court of India, but every case has to be
decided on its own facts. The first part of the section means that the offence
committed in prosecution of the common object must be one which is committed with
a view to accomplish the common object. It is not necessary that there should be
a preconcert in the sense of a meeting of the members of the unlawful assembly as
to the common object; it is enough if it is adopted by all the members and is shared
by all of them. In order that the case may fall under the first part the offence
committed must be connected immediately with the common object of the unlawful assembly
of which the accused were members.
Even if the offence
committed is not in direct prosecution of the common object of the assembly, it
may yet fall under section 149 if it can be held that the - offence was such as
the members knew was likely to be committed. The expression 'know' does not
mean a mere possibility, such as might or might not happen.
For instance, it is a
matter of common knowledge that when in a village a body of heavily armed men
set out to take a woman by force, someone is likely to be killed and all the
members of the unlawful assembly must be aware of that likelihood and would be
guilty under the second part of section 149. Similarly, if a body of persons go
armed to take forcible possession of the land, it would be equally right to say
that they have the knowledge that murder is likely to be committed if the circumstances
as to the weapons carried and other conduct of the members of the unlawful assembly
18 clearly point to such knowledge on the part of them all."
Shambhu Nath Singh and Ors. Vs. State of Bihar [AIR 1960 SC 725], this Court
held that members of an unlawful assembly may have a community of object upto a
certain point beyond which they may differ in their objects and the knowledge possessed
by each member of what is likely to be committed in prosecution of their common
object may vary not only according to the information at his command but also according
to the extent to which he shares the community of object. As a consequence, the
effect of Section 149 of the Indian Penal Code may be different on different members
of the same unlawful assembly. Decisions of this Court Gangadhar -Behera and
Others Vs. State of Orissa [2002 (8) SCC 381] and Bishna Alias Bhiswadeb Mahato
and Others Vs. State of West Bengal [2005 (12) SCC 657] similarly explain and reiterate
the legal position on the subject.
the case at hand, there is, in our opinion, no evidence to show that the appellant
knew that in prosecution of the common object of preventing the putting up of the
fence around the chapel the members of the assembly or any one of them was likely
to commit the murder of the deceased. There is indeed no evidence to even show that
the appellant knew that Anthony D'Souza was carrying a knife with him, which he
could use. The evidence on the contrary is that after stabbing the deceased Anthony
D'Souza had put the knife back in the cover from where he had drawn it.
The conduct of the
members of the assembly especially the appellant also does not suggest that
they intended to go beyond preventing the laying of the fence, leave alone committing
a heinous offence of murder of a person who had fallen to the ground -with a
simple blow and who was being escorted away from the spot by his companions. We
have, therefore, no hesitation in holding that the Courts below fell in error in
convicting the appellant for murder with the aid of Section 149 of the IPC.
said that, we have no manner of doubt that the conviction of the appellant for offences
punishable under Sections 143, 148, 323 and 325 read with Section 149 of the
IPC is perfectly justified. The evidence on record clearly makes out a case against
the appellant under those provisions and the Courts below have rightly found him
guilty on those counts.
In fairness to Mr.
Luthra, we must mention that even he did not assail the conviction of the
appellant under those provisions. What was argued by the learned counsel is
that this Court could reduce the sentence to the period already undergone by the
appellant having regard to the fact that the incident in question had taken
place nearly 15 years back and the appellant had not only suffered the trauma
of a prolonged trial and uncertainty but his life had also suffered a setback,
in as much Antonetta had divorced him.
Mr. Luthra submitted
that the appellant -was a first offender and being a middle aged man, could be
spared the ignominy and hardship of a jail term at this stage of his life when he
was ready to abide by any directions of this Court regarding compensation to the
victims of the incident. Support for his submissions was drawn by Mr. Luthra from
the decisions of this Court in Hansa Vs. State of Punjab [1977 (3) SCC 575] and
Hari Singh Vs. Sukhbir Singh & Others [1988 (4) SCC 551]. In Hansa's case (supra),
the accused had been convicted for an offence under Section 325 and sentenced
to undergo one year rigorous imprisonment. The High Court had, however, given
the accused the benefit of probation of offenders Act, and let him off on his
giving a bond for good conduct for a year.
This Court held that
the power vested in the Court had been correctly exercised. Even in Hari Singh's
case (supra), the court granted a similar benefit to a convict under Section 325
who had been sentenced to undergo two years rigorous imprisonment. The Court in
addition invoked its power under Section 357 of the Cr.P.C. to award compensation
to the victim, and determined the amount payable having regard to the nature of
the injury -inflicted and the paying capacity of the appellant. This Court
said: 22 "10. Sub-section (1) of Section 357 provides power to award
compensation to victims of the offence out of the sentence of fine imposed on
accused. 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. 11. 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
instalments, may also be given. The court may enforce the order by imposing
sentence in default."
357 of the Code of Criminal Procedure embodies the concept of compensating the
victim of a -crime and empowers the courts to award a suitable amount. This power,
it goes without saying, shall be 23exercised by the Courts having regard to the
nature of the injury or loss suffered by the victim as also the paying capacity
of the accused. That the provision is wide enough to cover a case like the present
where the appellant has been found guilty of offences punishable under Sections
323 & 325 of the IPC has not been disputed before us. Indeed Mr. Luthra
relied upon the provision and beseeched this Court to invoke the power to do
complete justice short of sending the appellant back to the prison.
Mrs. Subhashini also
in principle did not have any quarrel with the proposition that the power was available
and can be exercised, though according to her, the present being a gross case of
unprovoked violence against law abiding citizens the exercise of the power to compensate
the victims ought not to save accused from suffering a deterrent punishment
warranted under law.
Andrew Ashworth of Oxford University Centre for Criminological Research has in
the handbook of Criminology - authored by him referred to what are called "Restorative
and Reparative Theories" of punishment. The following passage from the
book is, in this regard, apposite: "Restorative and Reparative
Theories These are not
theories of punishment, rather, their argument is that sentences should move away
from punishment of the offender towards restitution and reparation, aimed at restoring
the harm done and calculated accordingly. Restorative theories are therefore victim-centred,
although in some versions they encompass the notion of reparation to the community
for the effective crime. They envisage less resort to custody, with onerous community
based sanctions requiring offenders to work in order to compensation victims and
also contemplating support and counselling for offenders to regenerate them into
the community. Such theories therefore tend to act on a behavioural premises similar
to rehabilitation, but their political premises is that compensation for
victims should be recognised as more important than notions of just punishment
on behalf of the State"
provision for payment of compensation has been in existence for a considerable
period of time on the statute book in this country. Even so, criminal courts
have not, it appears, taken significant note of the said provision or exercised
the power vested in them thereunder. The Law Commission in its 42nd Report at para
3.17 refers to this regrettable omission in the following words: "We have
a fairly comprehensive provision for payment of compensation to the injured
party under Section 545 of the Criminal Procedure Code.
It is regrettable
that our courts do not exercise their statutory powers under this Section as
freely and liberally as could be desired. The Section has, no doubt, its limitations.
Its application depends, in the first instance, on whether the Court considers a
substantial fine proper punishment for the offence. In the most serious cases, the
Court may think that a heavy fine in addition to imprisonment for a long terms is
not justifiable, especially when the public prosecutor ignores the plight of the
victim of the offence and does not press for compensation on his behalf."
Manish Jalan Vs. State of Karnataka (2008) 8 SCC 225, even this Court felt that
the provision regarding award of compensation to the victims of crimes had not
been made use by the Courts as often as it ought to be. This Court observed: "Though
a comprehensive provision enabling the Court to direct payment of compensation has
been in existence all through but the experience has shown that the provision
has really attracted the attention of the Courts. Time and again the Courts have
been reminded that the provision is aimed at serving the social purpose and
should be exercised liberally yet the results are not heartening."
the above case the appellant had been convicted under Sections 279 and 304A of
the IPC. The substantive sentence of imprisonment was in that case reduced by
this - 26Court to the period already undergone with payment of fine and a
compensation of an amount of rupees one lakh to the mother of the victim. Reference
may also be made to the decision of this Court in Rachpal Singh and Anr. Vs. State
of Punjab AIR 2002 SC 2710, where this Court emphasised the need to assess and
award compensation by the accused to the gravity of the offence, needs of the
victim's family as also the paying capacity of the accused.
to the case at hand we need to keep in mind that the incident in question had
taken place as early as in the year 1997. The appellant has faced a prolonged trial
and suffered the trauma of uncertainty arising out of his conviction by the
Trial Court and the High Court in appeal. Besides the appellant have had no
criminal antecedents or involvement in any case, before or after the incident in
He has already
undergone nearly three months of imprisonment out of the sentence awarded to him.
He has, in the above backdrop, offered to compensate the victims of the incident
in question suitably. Mr. Luthra submitted on instructions that the appellant
is running a - 27hotel in Goa and is earning an amount of Rs.10-12 lakhs per year
from the same implying thereby that he is in a position to deposit the amount
of compensation ordered by this Court. In the totality of the above
circumstances, we are inclined to interfere in so far as the quantum of
sentence awarded under Section 325 of the IPC is concerned.
the result, we allow this appeal in part, set aside the conviction and sentence
awarded to the appellant under Section 302 read with Section 149 of the IPC and
acquit the appellant of that charge. The conviction of the appellant for
offences punishable under Sections 323 and 325 of the IPC is affirmed and the
appellant is sentenced to the period of imprisonment already undergone by him.
We further direct
that the appellant shall deposit a sum of Rs.3,00,000/- towards compensation to
be paid to the widow of the deceased Shri Felix Felicio Monteiro, failing her to
his surviving legal heirs. A sum of Rs.1,00,000/- shall be similarly deposited towards
compensation payable to Shri Salish Monteiro, besides a sum of Rs.50,000/- to
be paid to Ms. Conceicao Monteiro failing to their legal representatives. The deposit
shall be made within two months from today failing which the sentence of one
year awarded to the appellant shall stand revived and the appellant taken in custody
to serve the remainder of the period. The appeal is disposed of with the above
modification and directions.
(ASOK KUMAR GANGULY)