REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1108 OF 2002

Roy Fernandes …Appellant

Versus

State of Goa and Ors.      …Respondents

J U D G M E N T

T.S. THAKUR, J.

              1. This 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.

1

2. Felix 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 Felicio Monteiro.   

3. On 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, -

2

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 bleeding. 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  

3

IPC. The Additional 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.   

4. The 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 the IPC.

4

5. Aggrieved 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.   

6. We  have  heard  learned  counsel  of  the  parties  at  

considerable length.  It is common ground that the incident  5

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  

6

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  

Monteiro.  

7. That, 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  7

an 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.

8. Mr. 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 number.”

8

9. To  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:   

“10.  xxxxxxxxx  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  them  

notwithstanding.   

9

11. That  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 offence.”

12. A  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  

10

Felix Felicio Monteiro was itself not the common object of  

the unlawful  assembly in the case at  hand.  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;”

13. From 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  11

by  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.   

14. What 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.”

12

15. The  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 necessary. 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.”

16. Coming 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  

13

prosecution 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  

14

namely 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.   

17. This 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 IPC.   

-

18. In 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.”

-

19. In  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”.

20. This 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.”

21. In 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  17

possession 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.”

22. In  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.

19

23.   In  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.

20

24. Having 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  

21

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.”

25. Section  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  

23

exercised 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.

26. Prof. Andrew Ashworth of Oxford University Centre for  

Criminological Research has in the handbook of Criminology  

-

24

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”   

27. The 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:

25

“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.”                

28. In 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.”        

29. In 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  

-

26

Court 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.  

30. Coming 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  

question.  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 -

27

hotel 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.

31. In 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  28

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.  

..…………………..………J. (ASOK KUMAR GANGULY)

.……………………..………J. (T.S. THAKUR)

New Delhi February 1, 2012

29