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Saturday, February 4, 2017

No doubt, in the scuffle that took place, one blow came to be inflicted on the head of Ashok which injury proved fatal. However, this by itself cannot be the reason to conclude that there was any intention to commit his murder. = We, thus, hold that there was no preconceived common object of eliminating the members of Deshmukh family and group and the assembly was not acquired with any deadly weapons either, as held by the High Court. Even the High Court has not pointed out any such evidence. These findings are hereby set aside. The conviction of the appellants under Section 302 IPC is converted into Section 304-II IPC for which the appellants are sentenced for rigorous imprisonment of seven years each. We were informed that all the appellants have already undergone sentence of seven years or more. If that is correct, these appellants shall be released forthwith, if not required in any other case.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1305 OF 2011

|VIJAY PANDURANG THAKRE & ORS. |.....APPELLANT(S) |
|VERSUS | |
|STATE OF MAHARASHTRA |.....RESPONDENT(S) |

W I T H

CRIMINAL APPEAL NO. 1300 OF 2011

CRIMINAL APPEAL NOS. 1302-1304 OF 2011

CRIMINAL APPEAL NO. 1306 OF 2011

CRIMINAL APPEAL NO. 1307 OF 2011

AND

CRIMINAL APPEAL NO. 1308 OF 2011

J U D G M E N T

A.K. SIKRI, J.
In all these appeals, there are 21 number of appellants
who are all convicted for the offences punishable under Sections 302, 307,
324, 336, 427, 506-II, 148 read with Section 149 of the Indian Penal Code,
1860 (for short the 'IPC') by the Additional Sessions Judge, Nagpur vide
his judgment dated 05.02.2010, which is substantially upheld by the High
Court vide impugned judgment dated 24.01.2011. Judgment of the High Court
in the criminal appeals, that were filed by the appellants, allowed the
appeals in part thereby altering the charge under Section 307 IPC to
Section 324 of the IPC. However, rest of the conviction recorded by the
trial court has been maintained.

2. The appellants are the residents of Village Badegaon, Taluka Saoner,
Nagpur. Victims of the said crime are also residents of the same village.
Persons belonging to the victim's group (known as Deshmukh Group) as well
as those who are accused persons (known as Choudhary Group) are the two
rival political groups active in the village politics. On 24.10.2002,
elections for Village Panchayat, Badegaon took place. The appellants were
supporting Samata Party and four of their candidates got elected in the
said elections. On the other hand, Deshmukh Group was representing
Shetkari Shet Majoor Party and five of their candidates were elected in the
said elections. Shetkari Shet Majoor Party was led by Vijay Deshmukh and
Samata Party was led by Bhujangrao Choudhary. Two days after the elections
i.e. on 26.10.2002, the incident in question took place.

As per the prosecution, members of the group of accused persons hatched a
conspiracy to eliminate leading members of Deshmukh family for taking
revenge of their defeat in Gram Panchayat election and in furtherance of
their common object, committed the murder of Ashok Deshmukh, and attempted
to commit murder of Vilas Deshmukh, Vivek Deshmukh (PW-9 and PW-8
respectively), assaulted Dinesh Deshmukh, Arun Deshmukh, Prafulla Deshmukh,
Sau. Kalpana Deshmukh and Smt. Kausabai Choudhary (PW-6, PW-7, PW-13, PW-10
and PW-11 respectively), pelted stones on the houses of Deorao Nakhale and
Bhimrao Nakhale (PW-12 and PW-16 respectively) and damaged the scooter of
PW-4 Sushil Deshmukh. The incident was witnessed by seven injured
witnesses and four eyewitnesses.

The prosecution examined, altogether, 26 witnesses. Out of these, PW-6, PW-
7, PW-8, PW-9, PW-10, PW-11 and PW-13 were the injured eyewitnesses and PW-
2, PW-4, PW-5 and PW-18 were eyewitnesses who did not suffer any injury in
the incident. Other witnesses are the doctors (who examined the injured
persons and conducted postmortem of the deceased Ashok Deshmukh),
Investigating Officer, Executive Magistrate, Panch and other witnesses. On
the other hand, defence examined 16 witnesses in all.

It may be pointed out that there was no dispute that death of Ashok
Deshmukh was homicidal in nature and the testimony of the doctors on this
account is not under challenge. However, in respect of those who suffered
injuries, dispute was as to whether injuries were such that there was an
attempt to murder these persons. The trial court convicted the accused
persons under Section 307 IPC accepting the version of the prosecution.
However, the High Court in the impugned judgment has converted the
conviction from Section 307 IPC to Section 324 IPC. Since, neither the
State nor the victim has challenged this part, the acquittal of appellants
under Section 307 IPC has attained finality.

We may also mention at this stage itself that there was no serious
challenge by the learned counsel, who appeared for the appellants, at the
time of arguments to the conviction of the appellants under Section 324
IPC. Even otherwise we find that the conviction under Section 324 IPC
warrants to be sustained. In view thereof, the only question is as to
whether appellants could be convicted of offence under Section 302 IPC
along with Section 148 read with Section 149 IPC. Discussion hereinafter
would be focussed on this aspect.

It may be mentioned that in all 30 persons were charged under the various
Sections mentioned above. As pointed out above, after analysing the
evidence of the prosecution as well as that of the defence and other
material produced on record, the learned Additional Sessions Judge
convicted accused Nos. 1, 2, 4, 6, 9, 10, 12, 13, 16 to 25 and 28 to 30 for
various offences giving different sentence ranging from one month to six
months under Sections 324, 336, 427, 506-II and 148 IPC. Insofar as
conviction under Section 307 read with Section 149 IPC is concerned,
rigorous imprisonment for five years was awarded and for offence punishable
under Section 302 read with Section 149 IPC, life imprisonment was
inflicted upon the aforesaid convicted persons. The remaining accused
persons were acquitted. Findings of the trial court are summarised by the
High Court in the impugned judgment in the following manner:
(a) Accused No. 4 Pandhari N. Khandal, Accused No. 10 Vijay P.
Thakre, Accused No.13 Kailas Bhoyar, Accused No. 14 Ashok S. Pimparamule,
Accused No. 18 Narayan Kothe, Accused No. 19 Baban Karale, Accused No. 20
Marotrao Gawande, Accused No. 23 Chandrashekhar Khorgade and Accused No.
30 Dilip S. Chachane were identified to be present and participating in
various acts of assault.
(b) The accused possessed, and have used deadly weapons, such as
big size sticks and medium size sticks (Ubharis and Zodpas etc.)
(c) The accused constituted unlawful assembly.
(d) The witnesses depose that the members of the unlawful assembly
of accused persons proclaiming that they wanted to eliminate the main
persons from Deshmukh family, because of the acrimony which they had due to
defeat in the Panchayat election.
(e) Aspects, namely motive and intention, both were proved.
(f) The testimonies of the witnesses were adequate to prove the
commission of offence charged and stood to the test of trustworthiness.
The omissions relied upon by the defence were neither crucial or material,
nor were omissions at all.

State as well as the complainant had filed the appeals against those who
were acquitted, which were dismissed by the High Court. The High Court
noted that defence of the appellants was that it was a case of stampede,
though no attempt was made to explain as to how the stampede could have
occurred. The fact of homicidal death and other injuries were not
disputed. The enmity between the parties and commotion were also not in
dispute. Therefore, one has to proceed on the basis that incident in
question took place wherein certain persons belonging to Choudhary Group
attacked the persons of Deshmukh family. The most vital question that
becomes important in these circumstances is as to whether unlawful assembly
had been formed by the convicted persons with common object of causing
death of Ashok who lost his life in the said attack. The High Court has
taken note of the injuries as revealed in the postmortem report which the
deceased suffered and noted that the cause of death is one head injury.
The High Court further summarised his conclusion in para 50 of the judgment
which reads as under:
“50. The fact that the evidence brought by the prosecution, tested
from any point of view and permutations and combinations leads to the
conclusion that:-

(1) It was an unlawful assembly.
(2) It gathered after pre-conceived common object of eliminating the
members of Deshmukh family and group.

(3) The assembly was equipped with deadly weapons, such as Ubharis, Zodpas
etc.

(4) Unlawful assembly dealt a fatal assault on Ashok.

(5) Unlawful assembly dealt a violent and brutal assault on other injured
witnesses, namely PWs 6, 7, 8, 9, 10, 11 and 13 (Dinesh Deshmukh, Arun
Bhaurao Deshmukh, Vivek Nanaji Deshmukh, Vilas Bhauraoji Deshmukh, Kalpana
Vijayrao Deshmukh, Kausalyabai A. Chaudhari and Praful Uttamrao Deshmukh
respectively), and did stone pelting and damaged the houses of PW 12 Deorao
Nakhale and PW 16 Bhimrao Nakhale, and damaged the scooter of PW 4 Sushil
Deshmukh.”

Questioning the propriety of the aforesaid approach adopted by the High
Court, Mr. Tulsi, learned senior counsel appearing in Criminal Appeal
No.1300 of 2011 which is filed by four appellants, submitted that large
number of persons were implicated as accused persons and the manner in
which the incident took place, it was difficult for the prosecution
witnesses to identify as many as 30 persons and the possibility of
implicating even those who were not present at the time of the incident,
cannot be ruled out, particularly when there was political rivalry between
the two groups. He further submitted that motive for false implication
gets supported by the fact that in the elections which took place two days
before the incident, five persons from Deshmukh Group were elected whereas
from Choudhary Group, lesser number of persons i.e. four persons were
elected. It was submitted that Deshmukh Group was more dominating group
and in these circumstances, there was no question of taking any revenge.
He also submitted that there was a delay in lodging the FIR which could
further lend credence to the defence of the appellants that many were
falsely roped in. Furthermore, there was no evidence of any conspiracy or
common object and, thus, the ingredients of provision of Section 149 IPC
could not be taken and the appellants were wrongly convicted under the said
provision. In nutshell, his submission was fourfold on the following
aspects:
(1) The entire evidence in the case leaves a room for doubt with regard
to the identification of accused persons. This is so, because of a large
number of accused persons (30) and even 10-15 more alleged to be present at
the time of the incident. Added to this is the fact that their
identification is alleged to have taken place in the moonlight, no TIP
thereafter, and identification only in court.
(2) Delay in lodging FIR, utilized for deliberations about how to
implicate all political opponents.
(3) There is a clear motive for false implication on account of rivalry
arising out of Panchayat elections in which the accused party had won four
seats and complainant party won five out of nine seats. The complainant,
thus, in the absence of any evidence of conspiracy had all the opportunity
for false implication.
(4) In the absence of any evidence of conspiracy, the accused at worst
can be held responsible for their individual acts and others against whom
there are no specific allegations cannot be held liable as they may be mere
spectators, the incident having been taken place on a public road.

In support of the aforesaid submissions, learned counsel referred to
various case laws as well. Other counsel appearing for remaining
appellants adopted the submissions of Mr. Tulsi.

Learned counsel for the State, on the other hand, relied upon the
discussion contained in the judgments of the courts below in support of the
prosecution case with the submission that the appellants were rightly
convicted and there was no reason to interfere with the same.

After going through the evidence in detail, we are of the opinion that the
prosecution evidence is not sufficient to conclude that any conspiracy was
hatched by the appellants with common object to cause the death of Ashok or
the appellants are charged members of the other group with such an
objective. Even as per the prosecution, the convicted persons were not
carrying any deadly weapons. They were armed with Ubharis which are small
sticks and Ubharis used by the farmers for disciplining the bullocks. This
itself would be sufficient to negate the prosecution version that there was
a conspiracy and common object to cause fatal harm to the members of the
opposite group. At the most, the appellants wanted to inflict some
physical harm to the members of the Deshmukh family in order to 'teach them
a lesson'. Significantly, while discussing the charge under Section 307
IPC, the High Court itself has gone by the nature of injuries inflicted on
other persons and concluded that there was no intention to cause death of
any of those who got injured at the time of the incident. However, while
dealing with the case of death of Ashok, the High Court went by the
injuries on his person and on that basis concluded that there was a
premeditative motive on the part of the appellants to murder him. Except
the above, there is no clear evidence of any conspiracy or common
objective. In these circumstances, the accused persons, at worst, could be
held responsible for their individual acts.

Section 149 IPC reads as under:
“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.”

As is clear from the plain language, in order to attract the provision of
the Section, following ingredients are to be essentially established.
(i) There must be an unlawful assembly.
(ii) Commission of an offence by any member of an unlawful assembly.
(iii) Such offence must have been committed in prosecution of the common
object of the assembly; or must be such as the members of the assembly knew
to be likely to be committed.
If these three elements are satisfied, then only a conviction
under Section 149, I.P.C., may be substantiated, and not otherwise. None
of the Sections 147, 148 and 149 applies to a person who is merely present
in any unlawful assembly, unless he actively participates in the rioting or
does some overt act with the necessary criminal intention or shares the
common object of the unlawful assembly.

In the facts of the present case, we find that common object of the
assembly, even if it is presumed that there was an unlawful assembly, has
not been proved. The expression 'in prosecution of the common object'
occurring in this Section postulates that the act must be one which have
been done with a view to accomplish the common object attributed to the
members of the unlawful assembly. This expression is to be strictly
construed as equivalent to in order to attain common object. It must be
immediately connected with common object by virtue of nature of object. In
the instant case, even the evidence is not laid on this aspect. As pointed
out above, the courts below were influenced by the fact that one of the
injuries on the person of Ashok was on his head which became the cause of
death and from this, common object is inferred.

In Mukteshwar Rai v. State of Bihar[1], the accused persons were alleged to
have formed an unlawful assembly, gathered in a village and set some houses
on fire and ransacked. Two persons died as they got burnt and two could
not be traced. This Court agreed with the finding of the High Court as to
formation of the unlawful assembly. But as to the finding that the common
object of the unlawful assembly was to commit murder took somewhat a
different view and observed:

“The specific overt acts attributed to A-1 and five others who are said to
have actively participated in setting the fire and thrown some of the
victims into the fire stand disbelieved. It may also be noted that none of
the P.Ws. Is injured and we find from the judgment of the High Court that
none of the witnesses say that any one of these appellants were armed. The
learned Judge has extracted the incriminating part in each of the witnesses
against these appellants. It stated that these accused were identified by
those respective witnesses mentioned therein in discussing the case against
each of th accused. There is nowhere any mention that any one of these
appellants were armed. In such a situation the question is whether these
appellants also had a common object of committing the murder. We have
given earnest consideration to this aspect. Taking a general picture of the
case and after a close scrutiny of the evidence we find that two persons
were charred to death. This must have been the result of setting fire to
those houses. With regards the other two missing persons it cannot be
concluded that they were murdered in the absence of any iota of evidence.
Under these circumstances we find it extremely difficult to hold that a
common object of the unlawful assembly was to commit murder.”

We would also like to quote the following passage from Thakore Dolji
Vanvirji & Ors. v. State of Gujarat[2]:

“3. …Now the question is whether all the accused would constructively be
liable for an offence of murder by virtue of Section 149 IPC. So far A-1 is
concerned, it is the consistent version of all the eyewitnesses that he
dealt a fatal blow on the head with a sword and the medical evidence shows
that there was a fracture of skull and the blow must have been very
forceful because even the brain was injured. Therefore, he was directly
responsible for the death of the deceased and the High Court has rightly
convicted him under Section 302 IPC. Now coming to the rest of the accused,
all the eyewitnesses have made an omnibus allegation against them. Even A-
2, according to the eyewitnesses, gave only one blow and that the remaining
accused gave stick blows. All these injuries were not serious and were
simple. The injury attributed to A-2 was on the cheek and the doctor did
not say that it caused any damage. So it must also be held to be a simple
injury. Then we find only a bruise and an abrasion on the right arm and
some bruises on the back. These injuries did not result in any internal
injuries. There was not even a fracture of rib. Therefore they must also be
simple injuries. It is only injury No. 1 which was serious and proved
fatal. Therefore the question is whether under these circumstances common
object of the unlawful assembly was to cause the death of the deceased and
whether every member of the unlawful assembly shared the same? No doubt
Section 149 IPC is wide in its sweep but in fixing the membership of the
unlawful assembly and in inferring the common object, various circumstances
also have to be taken into consideration. Having regard to the omnibus
allegation, we think it is not safe to convict every one of them for the
offence of murder by applying Section 149 IPC. On a careful examination of
the entire prosecution case and the surrounding circumstances, we think the
common object of the unlawful assembly was only to cause grievous hurt. But
A-1 acted in his own individual manner and caused one injury with the sword
which proved fatal.”

No doubt, in the scuffle that took place, one blow came to be inflicted on
the head of Ashok which injury proved fatal. However, this by itself cannot
be the reason to conclude that there was any intention to commit his
murder. If 30 persons had attacked the members of Deshmukh Group, there
are no injuries on the vital parts of other persons who got injured in the
said episode. Ashok also suffered only one injury on his head and no other
injury is on vital part of his body. Had there been any common objective
to cause murder of the members of Deshmukh Group, there would have been
many injuries on deceased Ashok as well as other injured persons on the
vital parts of their body. On the contrary, it has come on record that the
injuries suffered by other persons are on their back or lower limbs i.e.
legs etc.

We, thus, hold that there was no preconceived common object of eliminating
the members of Deshmukh family and group and the assembly was not acquired
with any deadly weapons either, as held by the High Court. Even the High
Court has not pointed out any such evidence. These findings are hereby set
aside. The conviction of the appellants under Section 302 IPC is converted
into Section 304-II IPC for which the appellants are sentenced for rigorous
imprisonment of seven years each. We were informed that all the appellants
have already undergone sentence of seven years or more. If that is
correct, these appellants shall be released forthwith, if not required in
any other case.
Appeals are allowed partly in the aforesaid terms.

.............................................J.
(A.K. SIKRI)

.............................................J.
(R.K. AGRAWAL)

NEW DELHI;
FEBRUARY 02, 2017.
-----------------------
[1] 1992 Supp (1) SCC 727
[2] 1993 Supp (2) SCC 534

In that case, after following the judgment in Kerala SRTC v. Susamma Thomas[7], the Court chose to apply multiplier of 18 keeping in view the age of the victim, who as 25 years at the time of the accident. In the instant case, the MACT had quantified the income of the appellant at ?10,000, i.e. ?1,20,000 per annum. Going by the age of the appellant at the time of the accident, multiplier of 17 would be admissible. Keeping in view that the permanent disability is 70%, the compensation under this head would be worked out at ?14,28,000. The MACT had awarded compensation of ?70,000 for permanent disability, which stands enhanced to ?14,28,000. For mental and physical agony and frustration and disappointment towards life, the MACT has awarded a sum of ?30,000, which we enhance to ?1,30,000. In this manner, the compensation that is payable to the appellant is worked out as under: |Head | |Awarded by MACT |Now Payable | | | |Amount (in Rs.) |Amount (in Rs.) | |Medical & Transport |- |3,10,227 |3,10,227 | |Expenses | | | | |Loss of Income |- |1,00,000 |1,00,000 | |Mental & Physical |- |30,000 |1,30,000 | |agony | | | | |Removal of rod |- |25,000 |25,000 | |inserted in right leg | | | | |Permanent disability |- |70,000 |14,28,000 | |to some extent | | | | |TOTAL |- |5,35,227 |19,93,227 | The appellant shall also be entitled to the interest, as awarded by the High Court, as well as costs of this appeal. The amount shall be paid to the appellant within two months after deducting the payments already made. The appeal is disposed of accordingly.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1329 OF 2017
(ARISING OUT OF SLP (C) NO. 22790 OF 2013)

|SANDEEP KHANUJA |.....APPELLANT(S) |
|VERSUS | |
|ATUL DANDE & ANR. |.....RESPONDENT(S) |

J U D G M E N T

A.K. SIKRI, J.
Leave granted.

In a motor accident, the appellant herein suffered physical injuries. It
happened on July 08, 2006 when the appellant was going on a scooter to Gram
Pendri in the State of Chhattisgarh. When he reached near Gram Pendri, a
Hyundai Getz car bearing Registration No. MH 12 CR 6917, driven by
respondent No.1, hit the scooter, as a result of which the appellant fell
down and sustained fractures on both the legs, thereby suffering permanent
disability to some extent. He filed claim for compensation against the
respondents before the Motor Accidents Claims Tribunal (MACT), Rajnandgaon,
Chhattisgarh. The MACT, vide award dated May 05, 2009, granted him
compensation in the sum of ?5,35,227, under the following heads:
|Head | |Amount (in Rs.)|
|Medical & Transport Expenses |- |3,10,227 |
|Loss of Income |- |1,00,000 |
|Mental & Physical agony |- |30,000 |
|Removal of rod inserted in |- |25,000 |
|right leg | | |
|Permanent disability to some |- |70,000 |
|extent | | |
|TOTAL |- |5,35,227 |

Not satisfied with the quantum of compensation, the appellant approached
the High Court by way of appeal under Section 173 of the Motor Vehicles
Act, 1988 (for short, the 'Act'). The High Court has, vide impugned
judgment, enhanced the compensation to ?6,35,000. The High Court has not
awarded compensation under different heads but has deemed it proper to
award lump sum compensation in the aforesaid amount. Relevant discussion
in this behalf can be traced to paras 8 and 9 of the impugned judgment,
which reads as under:
“(8) We have gone through the evidence adduced by the claimant on the
issue of injury sustained by him. In our opinion, taking into
consideration the nature of injury, the permanent disability occurred on
the body of the appellant (claimant) to some extent, as a result of which
he claims to be not as fit as he was prior to accident in his day-to-day
work, resulting in reducing his capacity to do some extent of work, the
expenditure incurred in receiving medical treatment in actual, the loss and
mental pain suffered due to his involvement in accident we consider it
proper to enhance in lump sum the compensation from Rs.5,35,227/- to
Rs.6,35,000/-. In other words, in our view, the claimant is held entitled
for a total sum of Rs.6,35,000/- by way of compensation for the injuries
sustained by him.

(9) In our considered opinion, due to injuries in both legs which is also
duly proved in evidence by the claimant and his doctor, he cannot freely
move and attend to his duties. His movements are restricted to a large
extent and that too in young age. It is for all these reasons, we feel
that the Tribunal had awarded a less compensation under this head and
hence, some enhancement under the head of pain and suffering and also under
the head of permanent partial disability and loss of earning capacity is
called for. This enhancement figure is arrived at taking into
consideration all relevant factors.”

The appellant is not satisfied with the aforesaid approach and the manner
in which the compensation is awarded. According to him, had the Court
applied proper provision and principles laid down under the Act, the
appellant would have been entitled to much more compensation.

We may state, at the outset, that the MACT recorded a specific finding that
the accident took place due to rash and negligent driving of car by
respondent No.1 which hit the scooter of the appellant. Respondent No.1
did not challenge the finding of the MACT and, therefore, this aspect has
attained finality and we need not go into the same. The dispute,
therefore, pertains only to the quantum of the compensation that has to be
awarded. Few facts relevant for resolving the dispute, which appear on the
record, are as under:

At the time of the accident, the appellant was aged about 30 years. He was
working as a Chartered Accountant. The appellant had produced evidence to
the effect that he had worked as a Chartered Accountant for various
institutions for which he was paid professional fee. He had produced
statements in this behalf (Exhibits P-195 to P-208) and on that basis he
claimed that his monthly income was ?34,600. He also proved on record the
income tax return for the year 2006-2007 (Exhibit P-194). The certificates
which were produced by the appellant showing the professional fee which he
had received was not accepted by the MACT on the ground that he had started
the business in the month of March 2006 and there was enough professional
competition in the said field. Moreover, the person issuing the
certificate had not been produced. On this basis, the Tribunal assessed
the monthly income of the appellant at ?10,000.

Insofar as injuries suffered by the appellant in the said accident are
concerned, he had stated that his health had impaired drastically and lungs
infected because of which he was admitted in the Intensive Care Unit and he
was kept on ventilator and was operated thrice. He had problem in climbing
stairs, running, trouble of back while sleeping, etc. A rod is planted in
his leg. Because of all this he has suffered 70% permanent disability,
apart from mental and physical agony and the said disability is going to
give him frustration and disappointment towards life. He pleaded that this
disability has affected his efficiency in work as well resulting in loss of
future income as well.

As already noticed above, the MACT granted him compensation by reimbursing
expenses incurred towards treatment and transportation, loss of income,
mental and physical agony and expenses for removing the rod planted in his
leg. The appellant contends that compensation awarded for mental agony and
physical suffering is too less. That apart, his main grievance is that
only a paltry sum of ?70,000 is awarded by the MACT for permanent
disability suffered by him, which is too inadequate.

We may note in this behalf that the MACT, though accepted the aforesaid
injuries and physical incapacity suffered by the appellant, was of the
opinion that even when it was not possible for the appellant to do work
like a healthy person, looking to the nature of the said injuries, insofar
as work of a Chartered Accountant is concerned, he could still perform it
properly and there was no impairment therein. For this reason, the MACT
refused to award compensation to the appellant by applying the principle of
multiplier based on permanent disability and granted a lump sum amount of
?70,000. The High Court has not gone into this aspect specifically.

In this conspectus, the only argument advanced by the learned counsel for
the appellant was that the appellant was entitled to the compensation on
the basis of multiplier, as per the provisions of the Act, fur suffering
permanent disability to the extent of 70% and there was no reason not to
apply the said multiplier.

Learned counsel for the respondent, on the other hand, made an endeavour to
justify the approach of the MACT with the submission that when the injuries
suffered by him, even resulting in 70% permanent disability, had no adverse
affect on the working of the appellant, who was a Chartered Accountant, he
was not entitled to have the compensation computed by invoking the
principle of multiplier.

We may observe at the outset that it is now a settled principle, repeatedly
stated and restated time and again by this Court, that in awarding
compensation the multiplier method is logically sound and legally well
established. This method, known as 'principle of multiplier', has been
evolved to quantify the loss of income as a result of death or permanent
disability suffered in an accident. Recognition to this principle was
given for the first time in the year 1966 in the case of Municipal
Corporation of Delhi v. Subhagwanti & Ors.[1] Again, in Madhya Pradesh
State Road Transport Corporation, Bairagarh, Bhopal v. Sudhakar & Ors.[2],
the Court referred to an English decision while emphasising the import of
this principle in the following manner:
“4. A method of assessing damages, usually followed in England, as appears
from Mallet v. McMonagle[3], is to calculate the net pecuniary loss upon an
annual basis and to “arrive at the total award by multiplying the figure
assessed as the amount of the annual ‘dependency’ by a number of ‘year's
purchase’ that is the number of years the benefit was expected to last,
taking into consideration the imponderable factors in fixing either the
multiplier or the multiplicand...”

While applying the multiplier method, future prospects on advancement in
life and career are taken into consideration. In a proceeding under
Section 166 of the Act relating to death of the victim, multiplier method
is applied after taking into consideration the loss of income to the family
of the deceased that resulted due to the said demise. Thus, the multiplier
method involves the ascertainment of the loss of dependency or the
multiplicand having regard to the circumstances of the case and
capitalising the multiplicand by an appropriate multiplier. The choice of
the multiplier is determined by the age of the deceased or that of the
claimant, as the case may be. In injury cases, the description of the
nature of injury and the permanent disablement are the relevant factors and
it has to be seen as to what would be the impact of such injury/disablement
on the earning capacity of the injured. This Court, in the case of U.P.
State Road Transport Corporation & Ors. v. Trilok Chandra & Ors.[4]
justified the application of multiplier method in the following manner:
“13. It was rightly clarified that there should be no departure from the
multiplier method on the ground that Section 110-B, Motor Vehicles Act,
1939 (corresponding to the present provision of Section 168, Motor Vehicles
Act, 1988) envisaged payment of ‘just’ compensation since the multiplier
method is the accepted method for determining and ensuring payment of just
compensation and is expected to bring uniformity and certainty of the
awards made all over the country.”

The multiplier system is, thus, based on the doctrine of
equity, equality and necessity. A departure therefrom is to be done only
in rare and exceptional cases.

In the last few years, law in this aspect has been straightened by this
Court by removing certain cobwebs that had been created because of some
divergent views on certain aspects. It is not even necessary to refer to
all these cases. We find that the principle of determination of
compensation in the case of permanent/partial disablement has been
exhaustively dealt with after referring to the relevant case law on the
subject in the case of Raj Kumar v. Ajay Kumar & Ors.[5] in the following
words:
“Assessment of future loss of earnings due to permanent disability

8. Disability refers to any restriction or lack of ability to perform an
activity in the manner considered normal for a human being. Permanent
disability refers to the residuary incapacity or loss of use of some part
of the body, found existing at the end of the period of treatment and
recuperation, after achieving the maximum bodily improvement or recovery
which is likely to remain for the remainder life of the injured. Temporary
disability refers to the incapacity or loss of use of some part of the body
on account of the injury, which will cease to exist at the end of the
period of treatment and recuperation. Permanent disability can be either
partial or total. Partial permanent disability refers to a person's
inability to perform all the duties and bodily functions that he could
perform before the accident, though he is able to perform some of them and
is still able to engage in some gainful activity. Total permanent
disability refers to a person's inability to perform any avocation or
employment related activities as a result of the accident. The permanent
disabilities that may arise from motor accident injuries, are of a much
wider range when compared to the physical disabilities which are enumerated
in the Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995 (“the Disabilities Act”, for short). But
if any of the disabilities enumerated in Section 2(i) of the Disabilities
Act are the result of injuries sustained in a motor accident, they can be
permanent disabilities for the purpose of claiming compensation.

9. The percentage of permanent disability is expressed by the doctors with
reference to the whole body, or more often than not, with reference to a
particular limb. When a disability certificate states that the injured has
suffered permanent disability to an extent of 45% of the left lower limb,
it is not the same as 45% permanent disability with reference to the whole
body. The extent of disability of a limb (or part of the body) expressed in
terms of a percentage of the total functions of that limb, obviously cannot
be assumed to be the extent of disability of the whole body. If there is
60% permanent disability of the right hand and 80% permanent disability of
left leg, it does not mean that the extent of permanent disability with
reference to the whole body is 140% (that is 80% plus 60%). If different
parts of the body have suffered different percentages of disabilities, the
sum total thereof expressed in terms of the permanent disability with
reference to the whole body cannot obviously exceed 100%.

10. Where the claimant suffers a permanent disability as a result of
injuries, the assessment of compensation under the head of loss of future
earnings would depend upon the effect and impact of such permanent
disability on his earning capacity. The Tribunal should not mechanically
apply the percentage of permanent disability as the percentage of economic
loss or loss of earning capacity. In most of the cases, the percentage of
economic loss, that is, the percentage of loss of earning capacity, arising
from a permanent disability will be different from the percentage of
permanent disability. Some Tribunals wrongly assume that in all cases, a
particular extent (percentage) of permanent disability would result in a
corresponding loss of earning capacity, and consequently, if the evidence
produced show 45% as the permanent disability, will hold that there is 45%
loss of future earning capacity. In most of the cases, equating the extent
(percentage) of loss of earning capacity to the extent (percentage) of
permanent disability will result in award of either too low or too high a
compensation.

11. What requires to be assessed by the Tribunal is the effect of the
permanent disability on the earning capacity of the injured; and after
assessing the loss of earning capacity in terms of a percentage of the
income, it has to be quantified in terms of money, to arrive at the future
loss of earnings (by applying the standard multiplier method used to
determine loss of dependency). We may however note that in some cases, on
appreciation of evidence and assessment, the Tribunal may find that the
percentage of loss of earning capacity as a result of the permanent
disability, is approximately the same as the percentage of permanent
disability in which case, of course, the Tribunal will adopt the said
percentage for determination of compensation.”

The crucial factor which has to be taken into consideration, thus, is to
assess as to whether the permanent disability has any adverse effect on the
earning capacity of the injured. In this sense, the MACT approached the
issue in right direction by taking into consideration the aforesaid test.
However, we feel that the conclusion of the MACT, on the application of the
aforesaid test, is erroneous. A very myopic view is taken by the MACT in
taking the view that 70% permanent disability suffered by the appellant
would not impact the earning capacity of the appellant. The MACT thought
that since the appellant is a Chartered Accountant, he is supposed to do
sitting work and, therefore, his working capacity is not impaired. Such a
conclusion was justified if the appellant was in the employment where job
requirement could be to do sitting/table work and receive monthly salary
for the said work. An important feature and aspect which is ignored by the
MACT is that the appellant is a professional Chartered Accountant. To do
this work efficiently and in order to augment his income, a Chartered
Accountant is supposed to move around as well. If a Chartered Accountant
is doing taxation work, he has to appear before the assessing authorities
and appellate authorities under the Income Tax Act, as a Chartered
Accountant is allowed to practice up to Income Tax Appellate Tribunal.
Many times Chartered Accountants are supposed to visit their clients as
well. In case a Chartered Accountant is primarily doing audit work, he is
not only required to visit his clients but various authorities as well.
There are many statutory functions under various statutes which the
Chartered Accountants perform. Free movement is involved for performance
of such functions. A person who is engaged and cannot freely move to
attend to his duties may not be able to match the earning in comparison
with the one who is healthy and bodily abled. Movements of the appellant
have been restricted to a large extent and that too at a young age. Though
the High Court recognised this, it did not go forward to apply the
principle of multiplier. We are of the opinion that in a case like this
and having regard to the injuries suffered by the appellant, there is a
definite loss of earning capacity and it calls for grant of compensation
with the adoption of multiplier method, as held by this Court in Yadava
Kumar v. Divisional Manager, National Insurance Company Limited & Anr.[6]:
“9. We do not intend to review in detail state of authorities in relation
to assessment of all damages for personal injury. Suffice it to say that
the basis of assessment of all damages for personal injury is compensation.
The whole idea is to put the claimant in the same position as he was
insofar as money can. Perfect compensation is hardly possible but one has
to keep in mind that the victim has done no wrong; he has suffered at the
hands of the wrongdoer and the court must take care to give him full and
fair compensation for that he had suffered.

10. In some cases for personal injury, the claim could be in respect of
lifetime's earnings lost because, though he will live, he cannot earn his
living. In others, the claim may be made for partial loss of earnings. Each
case has to be considered in the light of its own facts and at the end, one
must ask whether the sum awarded is a fair and reasonable sum. The
conventional basis of assessing compensation in personal injury cases—and
that is now recognised mode as to the proper measure of compensation—is
taking an appropriate multiplier of an appropriate multiplicand.”

In that case, after following the judgment in Kerala SRTC v. Susamma
Thomas[7], the Court chose to apply multiplier of 18 keeping in view the
age of the victim, who as 25 years at the time of the accident.

In the instant case, the MACT had quantified the income of the appellant at
?10,000, i.e. ?1,20,000 per annum. Going by the age of the appellant at
the time of the accident, multiplier of 17 would be admissible. Keeping in
view that the permanent disability is 70%, the compensation under this head
would be worked out at ?14,28,000. The MACT had awarded compensation of
?70,000 for permanent disability, which stands enhanced to ?14,28,000. For
mental and physical agony and frustration and disappointment towards life,
the MACT has awarded a sum of ?30,000, which we enhance to ?1,30,000. In
this manner, the compensation that is payable to the appellant is worked
out as under:
|Head | |Awarded by MACT |Now Payable |
| | |Amount (in Rs.) |Amount (in Rs.) |
|Medical & Transport |- |3,10,227 |3,10,227 |
|Expenses | | | |
|Loss of Income |- |1,00,000 |1,00,000 |
|Mental & Physical |- |30,000 |1,30,000 |
|agony | | | |
|Removal of rod |- |25,000 |25,000 |
|inserted in right leg | | | |
|Permanent disability |- |70,000 |14,28,000 |
|to some extent | | | |
|TOTAL |- |5,35,227 |19,93,227 |

The appellant shall also be entitled to the interest, as
awarded by the High Court, as well as costs of this appeal. The amount
shall be paid to the appellant within two months after deducting the
payments already made.

The appeal is disposed of accordingly.

.............................................J.
(A.K. SIKRI)

.............................................J.
(R.K. AGRAWAL)

NEW DELHI;
FEBRUARY 02, 2017.
-----------------------
[1] (1966) 3 SCR 649
[2] (1977) 3 SCC 64
[3] 1969 ACJ 312 (HL. England)
[4] (1996) 4 SCC 362
[5] (2011) 1 SCC 343
[6] (2010) 10 SCC 341
[7] (1994) 2 SCC 176

benefit of doubt = When he and Kishan Lal started running out, he heard Pritpal Singhal tell Roshan Lal to go outside, get the gun from the vehicle and that the fourth brother should not be spared. 35. It may be remembered that this witness survived the shooting with two bullets still lodged in his body. The office in which the firing took place was a small area. Yet this witness does not specify that the appellant shot him. He generally states that appellant and his father started firing at him and his brothers. Thus, it is difficult to say with certainty that the shots which hit Kishan Lal were fired by Suresh Singhal. 36. In these circumstances all that can be said is that a shot from the appellant may have hit Kishan Lal or may not have hit Kishan Lal. This benefit of doubt in law must go to the appellant. It is not possible for us to approve the observation of the High Court that because Suresh Singhal and Pritpal Singhal were armed “it is only the appellant and/or his father late Pritpal Singhal who could be responsible for the firing resulting in the murder of late Kishan Lal and the deceased-Shyam Sunder.We have already held that the appellant killed the deceased in the exercise of the right of private defence. Pritpal Singhal may or may not have acted out of the desire to protect Suresh. He did not share the same intention as that of Suresh. It is not possible to attribute common intention to kill the three brothers to both the appellant and his father. Hence, we allow this appeal partly and modify the impugned judgment and order passed by the High Court to the extent that the conviction of the appellant – Suresh Singhal under section 302 IPC for murder of Kishan Lal is set aside and his conviction under section 304 IPC is maintained. Since the appellant has already undergone a sentence of 13 ½ years as on date, we sentence him under section 304 IPC to the period already undergone. The appellant is in jail. He be released forthwith from the custody, if not required in any other case.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1548 OF 2011

SURESH SINGHAL ... APPELLANT(S)

VERSUS

STATE (DELHI ADMINISTRATION) ...RESPONDENT(S)

JUDGMENT

S. A. BOBDE, J.

This appeal is directed against the judgment dated 01.09.2010 of
the Delhi High Court in Criminal Appeal No.232 of 1997 filed by the
appellant-Suresh Singhal against his conviction and the sentence awarded to
him. The appeal filed by the State seeking death penalty for the appellant
and against the acquittal of Roshal Lal was dismissed by the High Court in
Criminal Appeal No.226 of 1997.

THE INCIDENT

2. The appellant was prosecuted for the incident that occurred on the
04.03.1991 at about 5.15 pm. The deceased-Shyam Sunder and Kishan Lal,
both brothers, were killed in the incident at the office of Lala Harkishan
Dass located at Rajendra Park, Nangloi. The statement of Lala Harkishan
Dass was recorded. He had arranged a meeting for settling a dispute that
had arisen between the appellant and the deceased. The appellant had
apparently agreed to sell a property through a property dealer, namely the
deceased-Shyam Sunder. The purchasers were the Gurdaspur Party. Apparently
there was some misunderstanding between the parties and eventually a
meeting was arranged at the office of Lala Harkishan Dass.

3. The deceased-Shyam Sunder and his two brothers Hans Raj
and Kishan Lal were already at the office of Lala Harkishan Dass. The
appellant-Suresh Singhal and his father Pritpal Singhal accompanied by
another man (Roshan Lal) reached the office at about 5.00 pm. As soon as
they entered the office, there was an altercation between the appellant and
the deceased. The appellant took out his revolver and shot Shyam Sunder.
Thereafter, the appellant and his father Pritpal Singhal who had come
to the office in a car, left the car behind and fled the place in the car
of another visitor.

In the incident Shyam Sunder and Kishan Lal were killed.

4. The Sessions Court convicted the appellant for the murder of Shyam
Sunder under Sections 302 and 304 read with Section 34 of Indian Penal Code
(hereinafter referred to as ‘IPC’) for the murder of Kishan Lal. His
co-appeallant-Pritpal Singhal who died on 28.03.2007, during the pendency
of the suit was also convicted under Section 307 read with Section 34 of
IPC for attempting the murder of Hans Raj. The third accused Roshan Lal
was acquitted.

WITNESSES TO THE SHOOTING

5. The actual shooting was claimed to have been witnessed by Lala
Harkishan Dass (PW-2), Hans Raj (PW-3) and Raj Kumar (PW-4). Lala
Harkishan Dass (PW-2) was declared hostile. Hans Raj (PW-3) is the injured
eye-witness, and the brother of the deceased-Shyam Sunder.

6. Two distinct versions about the actual shooting have arisen from the
deposition of the witnesses. One version is that there was no scuffle
before which the appellant fired at the deceased. The other is that there
was a scuffle in which the appellant was attempted to be strangulated.

NO SCUFFLE

7. The first version is mainly deposed to by Hans Raj (PW-3). Hans Raj
is the brother of the deceased. He went to the office of Lala Harkishan
Dass where the parties had decided to meet to resolve the dispute. He
deposed that the moment the deceased entered the room, the appellant asked
his brother-the deceased, to tell him what had happened yesterday. The
deceased got up and responded to it by asking the appellant whether he had
come to settle the dispute or to quarrel. The appellant said that there
won’t be any quarrel but something different would happen. This witness
said
that “he then took out a revolver from his coat pocket and fired at my
brother-Shyam Sunder.” This is all that the witness stated about the
actual shooting. Thereafter this witness stated that he tried to catch hold
of the appellant but the appellant exhorted his father to finish all the
brothers. Thereafter, Pritpal Singhal took out a revolver from his pocket
and both
the appellant as well as Pritpal Singhal started firing at him and his
brother-Kishan Lal. In the firing he was injured and received one bullet
in his stomach. This version significantly does not speak of any scuffle
preceding the shooting. In the cross-examination later on, he specifically
stated in the cross-examination that there was no scuffle in which the
deceased tried to strangulate the appellant. This witness thus clearly
stated that the appellant shot the deceased as soon as he rose.

8. The narration of this witness is significant since he suggests that
the deceased was sitting when the appellant entered the room and after
a menacing exchange of words, shot the deceased as soon as he got up.

9. Another witness Tarsem Kumar (P.W. 30) stated in his deposition that
“at that time, Shyam Sunder was sitting by my side on a sofa and he said
that he has been shot at with a bullet. I did not hear anything except
this.
I did not even hear the noise of firing”.

10. PW-30 in his deposition suggests that the appellant shot him from the
front as he got up. This throws a doubt on the credibility of this witness
because the entry wound of the bullet is on the back of deceased, and not
in the front. Thus we are not inclined to accept the narration of PW-30 and

PW-3, who have both stated that the appellant fired at the deceased
from the front.

SCUFFLE

11. The other version deposed by Subhash Chand Mahajan (PW-23) and
Sarover Kumar (PW-27) is that there was a scuffle between the three
brothers i.e. deceased-Shyam Sunder, Kishan Lal and Hans Raj on one hand,
and the appellant-Suresh Singhal on the other hand. The deceased tried to
strangulate the appellant as they fell during the struggle, and thereafter
pulled out his gun and shot the deceased. He then exhorted his father to
shoot the others.

12. Subhash Chand Mahajan (PW-23) stated in his cross examination that he
saw the appellant on the floor being strangulated. The witness stated that
there was a scuffle and thereafter a shot fired.

13. The other witness Sarover Kumar (PW-27) belongs to the Gurdaspur
Party and as such is not a direct party to the dispute between the
appellant and the deceased. He stated that immediately after the appellant-
Suresh Singhal and Pritpal Singhal arrived, there was a scuffle between the
appellant-Suresh Singhal on one hand and the three brothers including the
deceased-Shyam Sunder on the other. He deposed that there were shouts of
“Chhodo Chhodo” during the scuffle and then the deceased-Shyam Sunder cried
“Hai Mujhe Goli Lag Gayi” i.e. ‘I have been shot’. He stated that he
immediately ran out of the side gate along with the other persons and hid
behind the cement bags. The testimony of this witness has remained
unshaken in cross-examination. In fact in cross-examination, the witness
stated that a scuffle took place within the twinkling of an eye after the
appellant and the others entered the office.

14. The stark difference between the two versions is that of the scuffle
preceding the incident of the shooting. Whether there was a scuffle or not
determines the tenability of the main submission advanced by Mr. Sushil
Kumar, the learned senior counsel, that the appellant acted in the exercise
of his right of private defence and shot the deceased. It may be noted
that, both the Sessions Court and the High Court have found that there was
a sudden fight in the course of which a common intention developed between
the appellant and his father to cause the death of the deceased-Shyam
Sunder and Kishan Lal.

15. Having closely examined the evidence, we are of the view that in fact
a scuffle did take place. In this scuffle, Shyam Sunder alone, or along
with his two brothers tried to strangulate the appellant-Suresh Singhal.
The appellant reached for his revolver, upon which the deceased released
him and turned around to run away. At this point the appellant shot at him,
either still lying down or having got up. This probablizes and explains
the fact that it was not a close shot and that the bullet entered the body
below the right shoulder of the deceased at the back and travelled upwards.

NOT A CLOSE SHOT

16. The shot in question was obviously not a close shot. There was no
blackening, tattooing or charring around the bullet entry wound. In fact,
the doctors specifically stated that the shot was fired from a distant
range. It is well known that the shooting from close quarters chars or
blackens the body. It would be germane to quote from “Modi’s Textbook of
Medical Jurisprudence and Toxicology (25th Edition). p. 631” with
reference to the above:-

“When there is a close shot that is in the range of powder blast and the
flame is within one to three inches, for small arms there is a collar of
soot and grease (if present on the bullet) around the circular wound of
entry. Singed hairs may be seen if the body is not covered with clothing.
Partially burnt and unburnt grains of powder are blasted into the skin
causing a tattooing which cannot be easily wiped off. Wadding, pieces of
clothing or other debris may be found lodged in the wound. The entry wound
of a revolver fired very near or in contact with the skin is generally
stellate or cruciform in shape instead of being circular. When it is fired
beyond a distance of 12 inches, there are no powder marks of soot or heat
effects around the wound. If the revolver is fired close to the skin but
held at an angle, the smudging and tattooing is limited only to one side of
the bullet hole. The wound of exit is often larger than the wound of
entrance, and its edges are irregular and everted, but free from scorching
and tattooing.”

17. The statement of the doctor that it was shot from a distant range has
not been challenged in the cross-examination. There is another reason
which lends credence to the assumption that the shot was not fired from
close quarters, and that is the fact that the bullet did not exit the body.
Indeed this happens when the bullet being fired from a distance loses its
velocity. We have made these observations to support the inference that
there is no reliable evidence to show that the appellant shot the deceased
at close quarters when he was being strangulated. The shot was in
all probability fired when the deceased released the appellant during the
scuffle, and on seeing him reach for his gun moved away to escape after
turning around.

RECOVERY AND BALLISTIC EXPERT REPORT

18. We must at this stage advert to the recovery from the scene and
the ballistic expert report. Altogether 7 bullets were fired, and no
empty cartridge cases were recovered from the scene of the crime. One
empty .32 bore Smith & Wesson revolver was recovered from Suresh Singhal.
One .32 bore Smith & Wesson revolver was recovered from Pritpal Singhal.
One .22 HP rifle and nine empty cartridges were also recovered from the
roof of Pritpal Singhal’s house. One .32 bullet was taken out from the
body of deceased-Shyam Sunder. Three .32 bullets were recovered from the
body of deceased Kishan Lal.

19. The appellant and his father both had licensed revolvers but the
forensic report does not definitely disclose that the bullets came from the
licensed guns belonging to the appellant and Pritpal Singhal.

20. Products of combustion of cartridge powder were detected only in the
barrel of the .32 revolver recovered from Pritpal Singhal. Products of
combustion of cartridge powder could not be detected in the barrel of the
revolver recovered from the appellant or the .22 HP rifle. All the .32
cartridge cases were found to have been fired from a single .32 calibre
fire arm, but none of them from any of the two .32 revolvers which were
seized. The .32 lead bullet recovered from the body of deceased was fired
from .32 calibre fire arm. The reports states that this bullet could have
been fired from the revolver seized from Pritpal Singhal, and not from the
revolver seized from the appellant. However, a definite opinion was not
given for the want of sufficient characteristic marks on the crime bullets.
The three bullets recovered from the body of Kishan Lal could not be
linked with any of the .32 revolvers seized. The ballistic expert report
shows that none of the bullets were recovered from the .32 weapon seized
from the appellant.
It is thus not possible to determine the weapon that was used by the
appellant–Suresh Singhal.

PRIVATE DEFENCE

21. With regard to the evidence that the appellant was being assaulted
and in fact attempted to be strangulated, it needs to be considered whether
the appellant shot the deceased in the exercise of his right of private
defence. Such a right is clearly available when there is a reasonable
apprehension of receiving the injury.

22. The right of private defence is contemplated by Section 97 of IPC
which reads as follows:-

“Section 97. Right of private defence of the body and of property.— Every
person has a right, subject to the restrictions contained in section 99, to
defend—

First — His own body, and the body of any other person, against any offence
affecting the human body;

Secondly —The property, whether movable or immovable, of himself or of any
other person, against any act which is an offence falling under the
definition of theft, robbery, mischief or criminal trespass, or which is an
attempt to commit theft, robbery, mischief or criminal trespass.”

In Darshan Singh vs. State of Punjab and Another[1], this court laid
down the following principles which emerged upon the careful consideration
and scrutiny of a number of judgments as follows:-

“58. The following principles emerge on scrutiny of the following
judgments:

(i) Self-preservation is the basic human instinct and is duly recognised by
the criminal jurisprudence of all civilised countries. All free, democratic
and civilised countries recognise the right of private defence within
certain reasonable limits.

(ii) The right of private defence is available only to one who is suddenly
confronted with the necessity of averting an impending danger and not of
self-creation.

(iii) A mere reasonable apprehension is enough to put the right of self-
defence into operation. In other words, it is not necessary that there
should be an actual commission of the offence in order to give rise to the
right of private defence. It is enough if the accused apprehended that such
an offence is contemplated and it is likely to be committed if the right of
private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable
apprehension arises and it is coterminous with the duration of such
apprehension.

(v) It is unrealistic to expect a person under assault to modulate his
defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be
wholly disproportionate or much greater than necessary for protection of
the person or property.

(vii) It is well settled that even if the accused does not plead self-
defence, it is open to consider such a plea if the same arises from the
material on record.

(viii) The accused need not prove the existence of the right of private
defence beyond reasonable doubt.

(ix) The Penal Code confers the right of private defence only when that
unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or
limb may in exercise of self-defence inflict any harm even extending to
death on his assailant either when the assault is attempted or directly
threatened.”

23. Having regard to the above, we are of the view that the appellant
reasonably apprehended a danger to his life when the deceased and his
brothers started strangulating him after pushing him to the floor.
As observed by this Court a mere reasonable apprehension is enough to put
the right of self-defence into operation and it is not necessary that there
should be an actual commission of the offence in order to give rise to the
right of private defence. It is enough if the appellant apprehended that
such an offence is contemplated and is likely to be committed if the right
of private defence is not exercised.

24. It was argued by Mr. P.K. Dey, learned counsel for the State, that
the deceased and his brothers were unarmed and there was no need for the
appellant to have used the gun. Given the fact that the deceased and the
others were attempting to strangulate the appellant, it would have been
unrealistic to expect the appellant to “modulate his defence step by step
with any arithmetical exactitude”. This Court has held that a person who
is in imminent and reasonable danger of losing his life or limb may in
exercise of self-defence inflict any harm even extending to death on his
assailant either when the assault is attempted or upon being directly
threatened.
We are inclined to think that the appellant had been put in such a
position.

25. We have no doubt that the appellant exceeded the power given to him
by law in order to defend himself but we are of the view that the exercise
of the right was in good faith, in his own defence and without
premeditation. In this regard, it would be apposite to reproduce the
observation of Sessions Court which is as follows:-

“Since I feel that the prosecution witnesses are hiding something at the
introduction stage of the story, I will not impute a prior concert or
intention to the accused. I have no doubt that tempers got fayed at the
spot itself and whatever happened was not a result of prior meeting of
minds amongst the accused persons.”

26. The High Court has also observed as follows:-

“In the facts and circumstances of the case, we find it difficult to accept
that the murder of Shyam Sunder and Kishan Lal had been preplanned. Had
Suresh Singhal and his father late Pritpal Singhal preplanned the murder,
they would have chosen some other place to execute their plan and would not
have done it in the office of the informant, in the presence of a number of
persons. The convict Suresh Singhal and his father late Pritpal Singhal
knew that a number of persons including the informant Lala Harkishan Dass
and the members of the Gurdaspur Party would be present in the office of
the informant on that day and in the event of Krishan Lal and his
brother(s) having murdered there, all these persons would be eye-witnesses
against them. It is, therefore, highly unlikely that they would have
planned to commit murders at that place. It is true that both of them were
armed with loaded revolvers when they came to the office of the informant
on that day. But that in our view, in the facts and circumstances of the
case, does not necessarily mean that they had preplanned the murder, though
it does show that they were fully prepared to meet any eventuality and go
to any extent including use of the firearms they were carrying with them.”

27. The homicide in the present case thus does not amount to murder in
the view of Exception 2 to Section 300 of IPC[2]. We agree with the
observations of the Sessions Court and the High Court that the homicide was
not the result of premeditation but rather, as the evidence suggests, the
shooting took place in a sudden fight in the heat of passion. It is not
possible to accept the argument of the prosecution that the appellant took
undue advantage of the situation and used the gun even though the deceased-
Shyam Sunder and his brothers were unarmed. Given the murderous assault on
the appellant and the possibility of being attacked again, may be with arms
or may be with the help of the other persons, it is not possible to
attribute undue advantage to have been taken by the appellant. In such a
situation it would be unrealistic to expect the appellant to calmly assess
who would have the upper hand before exercising his right of private
defence.

28. In the circumstances of the case and the findings of the Sessions
Court and the High Court, we find that the homicide falls within Exception
4 to Section 300 of IPC[3] and does not amount to murder.

29. Mr. Sushil Kumar, the learned senior counsel for the appellant,
argued that since the evidence states that the shot was fired from a
distance and the deceased was on top of the appellant in the course of the
scuffle during which he was being strangulated, the fatal shot could have
only been fired by Pritpal Singhal. According to the learned counsel, he
was the only other person who had a gun and had every reason to exercise
the right of private defence to protect his son from strangulation.

30. It is not possible for us to accept the argument that merely because
Pritpal Singhal had a gun, and that he could have used it to save his son,
he fired the shot. There is no foundation in the evidence of any of the
witnesses to suggest that Pritpal Singhal fired at the deceased-Shyam
Sunder from any place in the room to save his son. Even otherwise,
shooting at two people grappling on the floor would have been a risk since
the shot could have injured either or both persons. It is therefore, not
possible for us to accept this submission.

31. The strong possibility is that there was a scuffle in which the
appellant was pinned to the floor and attempted to be strangulated by the
deceased. The appellant may have pulled out his gun and upon seeing the
gun, the deceased may have released the appellant and started running upon
which the appellant fired the shot which hit him from the back side. This
also explains the trajectory of the shot in which the bullet entered the
body below the right shoulder, and travelled upwards without exiting.

32. In these circumstances, we are of the view that Suresh Singhal is
undoubtedly guilty of causing death to Shyam Sunder with the intention of
causing death or of causing such bodily injury as is likely to cause death
and therefore guilty of the offence under Section 304 of the IPC. We are
informed that the appellant has already undergone a sentence of 13 ½ years
as on date. We thus sentence him to the period already undergone.

KISHAN LAL’S DEATH

33. The appellant has also been convicted under Section 302 IPC for the
murder of Kishan Lal. Hans Raj (PW-3) deposed that the appellant fired at
his brother, and when he (PW-3) and his brothers-Raj Kumar and Kishan Lal,
tried to catch hold of the appellant, the appellant told his father to
finish all the brothers. He then stated that Pritpal Singhal took out a
revolver from his pocket and both the appellant and his father started
firing at him and
his brother-Kishan Lal. He stated that he received two bullets on his
stomach, and one bullet grazed him over the neck portion in the front.
When he started running out, he was hit by another bullet on the back of
his right shoulder.

34. When he and Kishan Lal started running out, he heard Pritpal Singhal
tell Roshan Lal to go outside, get the gun from the vehicle and that the
fourth brother should not be spared.

35. It may be remembered that this witness survived the shooting with two
bullets still lodged in his body. The office in which the firing took
place was a small area. Yet this witness does not specify that the
appellant shot him. He generally states that appellant and his father
started firing at
him and his brothers. Thus, it is difficult to say with certainty that the
shots which hit Kishan Lal were fired by Suresh Singhal.

36. In these circumstances all that can be said is that a shot from the
appellant may have hit Kishan Lal or may not have hit Kishan Lal. This
benefit of doubt in law must go to the appellant.

37. For the reasons stated above specifically that Hans Raj (PW-3) did
not specify that the appellant shot him. There is a serious doubt whether
it can be held as having been proved beyond reasonable doubt that the
appellant attempted to murder Hans Raj for which he has been convicted.

38. It is not possible for us to approve the observation of the High
Court that because Suresh Singhal and Pritpal Singhal were armed “it is
only
the appellant and/or his father late Pritpal Singhal who could be
responsible
for the firing resulting in the murder of late Kishan Lal and the
deceased-Shyam Sunder.

39. We have already held that the appellant killed the deceased in the
exercise of the right of private defence. Pritpal Singhal may or may not
have acted out of the desire to protect Suresh. He did not share the same
intention as that of Suresh. It is not possible to attribute common
intention to kill the three brothers to both the appellant and his father.

40. Hence, we allow this appeal partly and modify the impugned judgment
and order passed by the High Court to the extent that the conviction of the
appellant – Suresh Singhal under section 302 IPC for murder of Kishan Lal
is set aside and his conviction under section 304 IPC is maintained. Since
the appellant has already undergone a sentence of 13 ½ years as on date, we
sentence him under section 304 IPC to the period already undergone. The
appellant is in jail. He be released forthwith from the custody, if not
required in any other case.

….………………………………..J.
[S.A. BOBDE]

….………………………………..J.
[L. NAGESWARA RAO]
New Delhi
February 02, 2017
-----------------------
[1] (2010) 2 SCC 333
[2] “Exception 2. – Culpable homicide is not murder if the offender, in
the exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law and causes the death of the
person against whom he is exercising such right of defence without
premeditation, and without any intention of doing more harm than is
necessary for the purpose of such defence.”

[3] “Exception 4.-Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion upon a
sudden quarrel and without the offender's having taken undue advantage or
acted in a cruel or unusual manner.”

Friday, February 3, 2017

On 18.03.2012 at about 3.30 p.m., the respondent-Naval Kumar alias Rohit Kumar, who was 8 years old at the time of incident, accompanied his mother to the fields to collect “Saag” where he got electrocuted with a high tension live wire (11 KV) commonly known as Lahru-Chowari Line. He received grievous burn and other injuries and became unconscious. On the same day, FIR was registered at the instance of the mother of the respondent.= In our considered view, taking into consideration the facts and circumstances of the case such as respondent's family background, his age (8 years), nature of permanent disability suffered by the respondent, his performance in studies, the determination of monthly/yearly income made by the High Court, expenses incurred and all the relevant factors, which are usually taken into account in awarding compensation to the victim, the respondent is held entitled for a total lump sum compensation of Rs.90,00,000/- (Rs. Ninety lacs) together with interest payable at the rate of 6% p.a. in place of Rs.1,25,00,000/- awarded by the High Court. 18) The award of Rs.90,00,000/- together with interest payable at the rate of 6% p.a., in our view, would fetch sufficient regular monthly income to the respondent by way of interest alone, if the awarded sum is deposited in the Bank and would thus take care of respondent’s upbringing and other needs for the rest of his life. The award of compensation determined by us is just and reasonable compensation payable to the respondent. 19) In view of foregoing discussion, the appeal succeeds and is allowed in part. The impugned order is modified to the extent indicated above by reducing the compensation awarded by the High Court. 20) In other words, the compensation awarded by the High Court is, accordingly, reduced from Rs.1,25,000,00/- to Rs.90,00,000/- with interest payable at the rate of 6% p.a. from the date of filing of the writ petition.

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 1339 OF 2017
(ARISING OUT OF SLP (C) No.9471/2015)

State of Himachal Pradesh
& Ors. ….Appellant(s)

VERSUS

Naval Kumar alias
Rohit Kumar …Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed against the final judgment and order dated
09.01.2015 passed by the High Court of Himachal Pradesh at Shimla in Civil
Writ Petition No. 475 of 2013 whereby the High Court allowed the writ
petition filed by the respondent herein and awarded the compensation of
Rs.1,25,00,000/- under different heads for the injuries sustained by the
respondent due to negligence of the State.
3) We herein set out the facts, in brief, to appreciate the issue
involved in this appeal.
4) On 18.03.2012 at about 3.30 p.m., the respondent-Naval Kumar alias
Rohit Kumar, who was 8 years old at the time of incident, accompanied his
mother to the fields to collect “Saag” where he got electrocuted with a
high tension live wire (11 KV) commonly known as Lahru-Chowari Line. He
received grievous burn and other injuries and became unconscious. On the
same day, FIR was registered at the instance of the mother of the
respondent.
5) The respondent was initially taken to Referal Hospital Chowari for
treatment. Thereafter he was referred to Dr. Rajendra Prasad Medical
Hospital, Tanda, District Kangra, Himachal Pradesh. He was operated on
25.03.2012 and his both arms were amputated. He was admitted in Dr.
Rajendra Prasad Medical Hospital, Tanda w.e.f. 18.03.2012 to 03.05.2012.
The respondent suffered 100% disability. During the course of
hospitalization, the family of the respondent had to incur expenses
exceeding Rs.2,00,000/- including medicines, taxi charges, attendant
charges, special diet charges etc. The respondent has now become totally
dependent upon family members even for day-to-day activities for his entire
life. The respondent was throughout brilliant student in his studies and
had to discontinue his studies after this unfortunate incident.
6) The respondent, through his mother and natural guardian, namely, Smt.
Lata Devi, filed writ petition being W.P. No. 475 of 2013 in the High Court
against the appellants herein claiming a compensation of Rs.50,00,000/-
under various heads and also stated that they have incurred Rs.2,00,000/-
for medical expenses. The respondent also prayed for a direction to the
authorities to install and maintain all the electricity wires, conductors,
apparatus etc. strictly in accordance with the Electricity Act, Rules,
Regulations etc. so that no such untoward incident would take place in the
future.
7) The High Court, by impugned judgment dated 09.01.2015, allowed the
writ petition filed by the respondent herein and awarded a compensation of
Rs.1,25,00,000/- under different heads to the respondent.
8) Against the said judgment, the appellants have filed this appeal by
way of special leave before this Court.
9) Heard Mr. J.S. Attri, learned senior counsel for the appellants and
Mr. Nishant Ramakanrao Katneshwarkar, learned counsel for the respondent.
10) Learned counsel for the appellant-State of H.P. while assailing the
legality and correctness of the impugned order urged that the High Court
erred in awarding Rs.1,25,00,000/- to the respondent-claimant by way of
compensation for the disabilities caused on account of electrocution
suffered by the respondent. It was his submission that the award of
compensation by the High Court is on much higher side with no material
evidence on record in support thereof and further it is essentially based
on assumptions and presumptions, which is not legally sustainable in law.
11) Learned counsel also contended that though the respondent
unfortunately lost his both the arms thereby suffered 100% permanent
disability for his whole life at such young age, yet having regard to
several relevant factors governing the issue, the compensation awarded by
the High Court appears to be on higher side and, hence, it deserves to be
reduced so as to make it a reasonable one.
12) In reply, learned counsel for the respondent supported the impugned
order and contended that it does not call for any interference. According
to learned counsel, it is based on proper reasoning and being just and
reasonable, therefore, does not call for any interference.
13) Having heard the learned counsel for the parties and on perusal of
the record of the case, we find some force in the submissions urged by the
learned counsel for the appellant- State and, hence, we are inclined to
interfere in the impugned order and, in consequence, reduce the
compensation awarded by the High Court to the extent indicated infra.
14) The short question that arises for consideration in this appeal is
whether the High Court, in the facts and circumstances of the case, was
justified in awarding Rs.1,25,00,000/- to the respondent by way of
compensation for the injuries sustained by the respondent in an accident
which occurred on 18.03.2012?
15) The High Court held and, in our view, rightly that the incident in
question occurred due to negligence of the State and its authorities and
hence the State was vicariously liable to compensate the respondent for the
losses sustained by the respondent. It may be mentioned that the State
rightly did not challenge this finding and hence we need not go into its
correctness. The High Court further held and, in our view, rightly that
having regard to the family background of the respondent and further
respondent’s excellent performance as a brilliant student in studies, he
would have easily earned Rs.30,000/- per month in his life. We find no good
ground to interfere in this finding of fact, which, in our opinion, is
based on proper material on record.
16) The High Court, however, further awarded Rs.10,00,000/- towards loss
of companionship, life amenities/pleasures, and happiness, Rs.10,00,000/-
for pain and suffering, mental distress, trauma and discomfort and
inconvenience, Rs.10,00,000/- towards attendant/nursing expenses, and
lastly, Rs.5,00,000/- for securing artificial/robotic limbs and future
medical expenses. In our considered view, the award of compensation under
these 4 heads appears to be on very higher side and is not supported by any
evidence. It is, in our view, based on assumptions and presumptions to
which we do not concur. In our view, entitlement under these heads is one
thing and the quantum of grant of compensation under these heads is another
thing. In this case, as rightly urged by the learned counsel for the
appellant-State that lump sum award of compensation under these heads is on
higher side and is not supported by any evidence. It is, therefore, not
legally sustainable.
17) In our considered view, taking into consideration the facts and
circumstances of the case such as respondent's family background, his age
(8 years), nature of permanent disability suffered by the respondent, his
performance in studies, the determination of monthly/yearly income made by
the High Court, expenses incurred and all the relevant factors, which are
usually taken into account in awarding compensation to the victim, the
respondent is held entitled for a total lump sum compensation of
Rs.90,00,000/- (Rs. Ninety lacs) together with interest payable at the rate
of 6% p.a. in place of Rs.1,25,00,000/- awarded by the High Court.
18) The award of Rs.90,00,000/- together with interest payable at the
rate of 6% p.a., in our view, would fetch sufficient regular monthly income
to the respondent by way of interest alone, if the awarded sum is deposited
in the Bank and would thus take care of respondent’s upbringing and other
needs for the rest of his life. The award of compensation determined by us
is just and reasonable compensation payable to the respondent.
19) In view of foregoing discussion, the appeal succeeds and is allowed
in part. The impugned order is modified to the extent indicated above by
reducing the compensation awarded by the High Court.
20) In other words, the compensation awarded by the High Court is,
accordingly, reduced from Rs.1,25,000,00/- to Rs.90,00,000/- with
interest payable at the rate of 6% p.a. from the date of filing of the writ
petition.
21) Let the appellant-State deposit the entire amount, as has been
awarded by this Court, within 3 months from the date of receipt of the copy
of this judgment in the High Court or pay to the respondent through his
parents after proper verification.

………...................................J.
[J. CHELAMESWAR]

…...……..................................J.
[ABHAY MANOHAR SAPRE] New Delhi;
February 02, 2017

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10

LAW FOR ALL

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Just for legal information but not form as legal opinion

Saturday, February 4, 2017

Friday, February 3, 2017