Judgment N. L. TIBREWAL, J. ( 1 ) ALL the six Appellants have preferred these three Appeals which arise out of the same occurrence and common judgment dated September 16, 1994 in Sessions Case No. 104/94 (old No. 18/94, passed by Additional Sessions Judge, Behror, whereby they were convicted and sentenced as under: (i) Under Section 302 read with Sec. 149 I. P. C. to suffer imprisonment for life and to pay a fine of Rs. 1,000/- each. In default of; payment of fine to undergo imprisonment for six months; (ii) Under Section 364 I. P. C. to suffer 4 years rigorous imprisonment and to pay a fine of Rs. 500/- each. In default of payment of fine to undergo simple imprisonment for three months; (iii) Under Section 147, to suffer one years rigorous imprisonment and to pay fine of Rs. 100/- each. In default of payment of fine to undergo simple imprisonment for one month. The substantive sentences were ordered to run concurrently. ( 2 ) THE facts of the case are well set out in Para-2 of the impugned judgment of the Trial Court which indicate that the deceased Sukhdev was running a small grocery shop in village Khohar at the time of incident. The shop of PW 8-Ram Niwas was situated towards South of his shop. On the fateful night of 1. 1. 84 at about 8 or 9 p. m. appellant Shaitan Singh came to his shop and asked for Namkeen on credit basis. He was in a drunken state at that time. Sukhdev refused to provide Namkeen without cash payment and this was not relished by Shaitan Singh, as he had to go back without Namkeen. While leaving the shop, he left a threat to Sukhdev that he would teach him a lesson and destroy his shop. After an hour or so, Shaitan Singh came back to the shop of Sukhdev alongwith other appellants. They dragged out Sukhdev from his shop and forcibly took him to their house giving him beating on the way. PW 1 Gopi Ram, brother of Sukhdev, happened to be there as he had brought meals for Sukhdev. On his screaming, witnesses Mange Singh, Heera Singh, Govind Jogi and Phool Singh came there and they followed the accused persons with a view to rescue Sukhdev. PW 1 Gopi Ram, brother of Sukhdev, happened to be there as he had brought meals for Sukhdev. On his screaming, witnesses Mange Singh, Heera Singh, Govind Jogi and Phool Singh came there and they followed the accused persons with a view to rescue Sukhdev. Some villagers also came to the house of the accused and eventually they succeeded in rescuing Sukhdev who was badly bruised at the hands of the accused persons. Sukhdev was brought back to his shop in an unconscious condition. Due to non-availability of any means, injured Sukhdev could not be taken to Behror for his treatment in the night itself. The report of the incident was made next day at 10 a. m. at Police Station, Behror by PW 1 Co pi Ram, and Crime No. 2/84 was registered under Sections 147, 148, 149, 307, 452, 325, 342 and 323 I. P. C. Thereafter. investigation commenced. ( 3 ) THE injured Sukhdev was first taken to Behror Hospital in the morning of 2. 1. 84 and from there, he was shifted to General Hospital, Alwar on advice of the Doctor. At Alwar, his injuries were examined by PW 18 Dr. P. S. Agrawal, Medical Jurist, General Hospital, Alwar and following injuries were noticed vide M. L. R. Ex. P-17. (i) Haemotoma 6 cm. x 5 area left temporal fronto parietal region with bruise 4 cm. x 2 cm. (ii) Haemotoma 8 x 5 cm. area Rt. fronto temporal parietal region with bruise 5 x 2 cms. bleeding mark from nostrils. (iii) Swelling over upper and lower lips and laceration of inner surface and bruised. Lower left incisor tooth missing, gum lacerated. (iv) Bruise 6 x 2 cms. Rt. hand with swelling. (v) Bruise right side back. (vi) Bruise left side back 12 x 4 cms. with bone eruptions underneath. (vii) Swelling over left hand. (viii) Bruise 4 cms. x 2 cms. left shoulder. All the injuries were caused by blunt object. Injuries NO. 3 and 6 were opined to be grievous, while for injuries Nos. 1, 2, 4, 5 and 7 X-Ray was advised. Sukhdev died at 7 a. m. on 3. 1. 84. The autopsy on his dead body was also conducted by Dr. P. S. Agrawal. He found the above referred external injuries on the person of the deceased. On dissection of the body, the following internal injuries were found: 1. 1, 2, 4, 5 and 7 X-Ray was advised. Sukhdev died at 7 a. m. on 3. 1. 84. The autopsy on his dead body was also conducted by Dr. P. S. Agrawal. He found the above referred external injuries on the person of the deceased. On dissection of the body, the following internal injuries were found: 1. Subcutaneous and muscular blood clots under external injury Nos, 1, 2, 5, 7 and 8. 2. Subcutaneous and muscular blood clots under external injury No. 4 with fracture of metacarpal bone of mid finger. 3. Subcutaneous and muscular blood clots under external injury No. 6 with fracture of 7th, 8th, 9th and 10th ribs with laceration of plurea and lung left side. Plural cavity contained blood about 12 ounces and left lung was collapsed. The cause of death, in the opinion of the doctor, was due to multiple injuries and chest injury with fracture of ribs and laceration of plurea, left lung and collapse of left lung associated with haemorrhage and shock. The injuries were ante-martious in nature. The post-mortem report is Ex. P16 on the record. The Doctor further made clear that death was caused by external injury No. 6 mentioned in post-mortem report Ex. P16 with internal effect and rupture of lungs. All other injuries were not sufficient to cause death. ( 4 ) AFTER completion of the investigation, charge-sheet was laid against all the six accused persons and they were tried in the Court of Additional District. and Sessions Judge, Behror for the charges under Sections 147,302 or in alternative under Sections 302/149 and 364 I. P. C. The prosecution examined 19 witnesses to seek conviction of the appellants. Out of them PW 1 Gopi Ram, PW 3 Govind Jogi, PW 6 Bhola Ram, PW 8 Ram Niwas, PW 9 Mangez Singh, PW 10 Phool Singh and PW 13 Heera Singh were examined as eye witnesses of the occurrence. However, PW 6, PW 9, PW 10 and PW 13 completely resiled from their previous statements recorded by the Police under Section 161 Cr. P. C. and were declared hostile. PW 17 is Dr. P. S. Agrawal, PW 2 Dr. Vijay Singh Yadav examined the injuries of PW 8 Ram Niwas and PW 1 Gopi Ram vide injury report Ex.- P 5 and Ex. P 3 respectively. P. C. and were declared hostile. PW 17 is Dr. P. S. Agrawal, PW 2 Dr. Vijay Singh Yadav examined the injuries of PW 8 Ram Niwas and PW 1 Gopi Ram vide injury report Ex.- P 5 and Ex. P 3 respectively. The injury of Ram Niwas was found to be grievous on X-Ray examination as proved by PW 7 Dr. M. K. Singhal. The learned Trial Court placing reliance on the testimony of PW 1 Gopi Ram, PW 3 Govind Jogi and PW 8 Ram Niwas and seeking corroboration from medical evidence etc. convicted and sentenced the appellants as aforesaid. ( 5 ) LEARNED Counsel, appearing for the appellants, strenuously contended that the conduct of PW 1 Gopi Ram, the real brother of the deceased and other witnesses at the time and after the incident, was quite unnatural and abnormal and as such, the entire prosecution case should be rejected. Learned Counsel contended that report of the incident has been lodged after an inordinate delay of more than 12 hours for which there is no satisfactory explanation, specially when the condition of Sukhdev was precarious and no efforts were made to get proper medical aid for his survival. It was also contended that the prosecution has not come with a true version about the origin of the incident and the manner in which it had taken place. According to the learned Counsel, prosecution story is highly exaggerated and the possibility of false implication cannot be ruled out looking to the nature and number of injuries sustained by the victim. For the appellant Han Singh it was further contended that his name does not find place in F. I. R. , as such, he deserves to be acquitted. Similar specific argument was made for acquittal of the appellant-Jai Singh son of Matu Singh. Lastly, it was urged that on the facts and in the circumstances of the case, keeping in view the medical evidence, the common object of the assembly could be at the most to cause simple and grievous hurt to the victim and by no stretch of imagination it could be to cause his death. ( 6 ) WE have given our careful consideration to the above submissions. In order to appreciate the arguments, we minutely examined the evidence and other materials on record. ( 6 ) WE have given our careful consideration to the above submissions. In order to appreciate the arguments, we minutely examined the evidence and other materials on record. The impugned judgment, under, challenge in the appeal, was also gone through carefully and minutely. At the court-set, we may state that the learned trial Judge has not decided the matter with clarity even though, the judgment runs into 31 typed pages. In a murder case, we expect proper and critical appraisal of the entire evidence and materials on record by the trial Judge, who is in a better position to appreciate the evidence. We ourselves, therefore, examined the evidence and materials independently to decide whether conviction of the appellants is sustainable and if so, under what offence or offences? ( 7 ) PW 1 Gopi Ram is real brother of the deceased Sukhdev. He claim to have witnessed the entire incident. For his presence at the place of occurrence, he states that he had come to the Shop of Sukhdev with his meals. He has given sequence of the events right from its inception when the incident originated. His evidence fully supports the prosecution case that the appellant Shaitan Singh came to the shop of Sukhdev and demanded Namkeen on credit basis and when he was declined without cash payment, he started abusing Sukhdev. He, than states that Ram Niwas, Heera Panch and Bhola-Pandit arrived there on hearing the noise and they persuaded Shaitan Singh to return to his house. However, Shaitan Singh left a warning while leaving the shop that he would see that the shop is closed. After some time all the appellants came at the seen of occurrence and his brother Sukhdev was dragged out from his shop. That the witness Ram Niwas was given a lathi blow by the appellant Malkhan and he too was given a lathi blow by the appellant Amar Singh when they tried to rescue Sukhdev. Then, Sukhdev was forcibly carried away by the appellants while assaulting him on the way. He was taken to the house of Prahlad Singh appellant, where the appellants Malkhan Singh and Amar Singh remained standing outside with lathis to prevent others to go inside. Then, Sukhdev was forcibly carried away by the appellants while assaulting him on the way. He was taken to the house of Prahlad Singh appellant, where the appellants Malkhan Singh and Amar Singh remained standing outside with lathis to prevent others to go inside. Then he went to the village to call villagers for help and when he came back, he found the door of the house opened and his brother was lying on TChabutra inside pole of the house. Blood was coming from his mouth and nostrils and his one tooth was broken. There was swelling on his face Thereafter, they brought his brother at his shop. He also states that Sukhdev could not be taken to Behror due to non-availability of means in night, and in the morning, he was taken to Behror in an injured condition and he made report Ex. P1 at the Police Station. This witness has been cross-examined at length. The major part of cross-examination is confined on the delay in lodging the report, non-mention of the name of Han Singh in the report and certain other omissions. For non- inclusion of Han Singhs name in the report, he has explained that his name was stated while making oral report, but by mistake the name of Jai Singh came to be written in his place. His evidence, however, is firm and consistent on the participation of the appellants in the incident. ( 8 ) THE statement of PW 1 Gopi Ram is supported by PW 8 Ram Niwas, whose presence at the scene of occurrence was quite natural as he was having his shop there. Further, the fact that he sustained a grievious injury in the course of rescuing Sukhdev, stamps his presence. He had gone to the shop of Sukhdev on hearing noise of oral altercation between Shaitan Singh and Sukhdev. He pacified them and Shaitan Singh was persuaded to go back to his house. The witness has deposed that Shaitan Singh had left a warning at that time that he would see that his shop is closed. According to the witness, thereaftar, he and Gopi Ram slept in him Chobara over his shop, but on hearing noise, they again came at the scene of occurrence and witnessed the incident. He testifies to have sustained an injury on ulna of his left hand which was caused by the appellant Malkhan. According to the witness, thereaftar, he and Gopi Ram slept in him Chobara over his shop, but on hearing noise, they again came at the scene of occurrence and witnessed the incident. He testifies to have sustained an injury on ulna of his left hand which was caused by the appellant Malkhan. Thus, this witness has supported the occurrence which took place at the shop of Sukh Dev and proves participation of all the appellants except Jai Singh. He is an independent witness and we find no ground to disbelieve his testimony. During the course of arguments also, nothing could be pointed out by the learned Counsel for the appellants for discarding his testimony PW 3 Govind Jogi is another eye witness of the occurrence who has supported the entire prosecution case. PW 5 Ram Swaroop has stated to have reached at the house of the appellant Prahlad Singh where Sukhdev was found lying in injured and unconscious condition. ( 9 ) FROM the above ocular evidence, corroborated by medical evidence etc. , the incident is well proved. We find no ground to disbelief the testimony of the above witnesses. Presence of PW 1 Gopi Ram and PW 8 Ram Niwas at the time of incident also stands proved by the existence of injuries on their person. ( 10 ) SO far, delay in making report is concerned, we find an explanation from PW 1 Gopi Ram. The Police Station is 16 Kms. away from the village where the occurrence had taken place and it must be late at night when Sukh Dev was shifted at his shop in an injured condition. In absence of means, if PW 1 could not go to lodge the report at mid-night, there appears to be a reasonable explanation. Gopi Ram has also stated that he did not go on foot in the night to lodge the report as he was having fear from the accused persons. From the record it does not appear that Gopi Ram was having any animosity or malice against the appellants to invent a false story in order to implicate them we therefore, reject the argument of the learned Counsel for the appellants that there is no explanation for lodging a delayed report at the Police Station. From the record it does not appear that Gopi Ram was having any animosity or malice against the appellants to invent a false story in order to implicate them we therefore, reject the argument of the learned Counsel for the appellants that there is no explanation for lodging a delayed report at the Police Station. ( 11 ) MUCH has been said and argued about the conduct of the witnesses for not making positive efforts to rescue Sukhdev from the clutches of the appellants. Suffice it to say in this connection that the appellants appear to be mighty persons of the village, being Rajput by caste. The manner in which they forcibly took away Sukhdev from his shop for no fault on his part and confined him in their house after giving beating publicly with a threat in advance speaks a volume about their terrorism in the village. If out of fear, the villagers did not have the courage to combat with them, there was nothing unnatural on their part. The villagers and the brother of Sukhdev were in helpless position and they could not have done more than to make a request for leaving Sukhdev or to remain standing as silent spectators. However, no adverse inference can be drawn against the prosecution witnesses and their testimony cannot be rejected on the ground that they did not have courage, to fight with the appellants for getting Sukhdev freed from their clutches. ( 12 ) WE have also considered the specific argument made for Jai Singh son of Matu Singh and Hart Singh son of Jagmal Singh. So far Jai Singh is concerned, though his name finds place in F. I. R. and PW 1 Gopi Ram has also spoken about his participation in the incident, but the Independent witnesses PW 3 Govind Jogi and PW 8 Ram Swaroop have not even named him to be a participant in the incident. PW 18 Shri Tek Chand, S. H. O. , has also deposed that from his investigation it was revealed that Jai Singh Sic Matu Singh did not participate in the incident. At the relevant time, he was a school teacher posted in village Bijorawas. As per his statement under Section 313 Cr. PW 18 Shri Tek Chand, S. H. O. , has also deposed that from his investigation it was revealed that Jai Singh Sic Matu Singh did not participate in the incident. At the relevant time, he was a school teacher posted in village Bijorawas. As per his statement under Section 313 Cr. P. C. , he used to go to attend his duties in the school at Bijorawas and on the day of incident, he had come back in the village at 8 p. m. The distance between the two villages is stated to be 10 Kms. Taking into consideration all the fads and circumstances, specially, on the basis of statements of PW 3 Govind Jogi, PW 5 Ram Swaroop and PW 18 Tek Chand S. H. O. , we think it just and proper to give him benefit of doubt. ( 13 ) SO far Hart Singh in concerned, all the witnesses have stated his presence and active participation in the incident. The fact of non-inclusion of his name in the F. I. R. has been properly explained by PW 1 Gopi Ram. The fathers name of Hart Singh has been correctly given in the F. I. R. as Jag Mal Singh. PW 1 had given an oral report and it stands to reason that the writer mistakenly wrote the name of Jai Singh instead of Han Singh, though, fatherts name has been correctly given as Jagmal Singh. In the statement of Gopi Ram, recorded by the Police u/section 161 Cr. P. C. immediately after registration of the case, the name of the appellant Han Singh finds place. Thus, taking into consideration, the consistent evidence against Hart Singh we are not inclined to accept the argument that he should be acquitted safely on the ground of non-inclusion of his name in the F. I. R. We, therefore, hold participation of the appellants, Shaitan Singh, Prahlad Singh, Amar Singh, Malkhan Singh and Han Singh in the incident. They constituted an unlawful assembly and all of them shared the common object of the assembly. ( 14 ) HAVING held so, the next crucial question for consideration is what was the common object of the unlawful assembly. Was it to commit murder of the victim-Sukhdev or it was simply to cause him simple and grievous hurt? They constituted an unlawful assembly and all of them shared the common object of the assembly. ( 14 ) HAVING held so, the next crucial question for consideration is what was the common object of the unlawful assembly. Was it to commit murder of the victim-Sukhdev or it was simply to cause him simple and grievous hurt? The common object of an unlawful assembly is judged on taking into consideration the various facts and circumstances, including the motive behind the offence, the nature of injuries inflicted to the victim, severity of the blow and the weapon used by the assailants. The words or gesture spoken or made by the assailants at the time of incident may also be relevant consideration to decide the common object of the assembly and the intention of the members of the assembly. In the instant case admittedly, there was no previous enmity or malice between the appellants and the victim. The incident flared up because the victim refused to oblige Shaitan Singh by providing Namkeen on credit basis. It appears that it was not relished by Shaitan Singh, may be for more than one reason. He may have felt that by the refusal his feelings were hurt or he may have taken it as a challenge to his authority. Further, none of the accused-appellants was armed with any deadly weapon, even though they had come from their respective houses. The number and the nature of injuries also go to show that they did not intend to commit murder of the deceased. Only injury No. 6 proved to be fatal as it fractured ribs which pierced into the lungs of the deceased. The entire facts would indicate that the accused persons evidently wanted to teach a lesson to Sukhdev for not providing Namkeen on credit basis and, thus challenged their authority in the village. We are of the opinion that the common object of the assembly was to cause simple and grievous injuries to Sukhdev and not to commit his death. Consequently, the accused persons could be convicted under Section 325 read with Section 149 I. P. C. Their conviction under Sections 364 and 147 I. P. C. is well founded as the victim Sukhdev was forcibly taken away from his shop by the appellants. Consequently, the accused persons could be convicted under Section 325 read with Section 149 I. P. C. Their conviction under Sections 364 and 147 I. P. C. is well founded as the victim Sukhdev was forcibly taken away from his shop by the appellants. ( 15 ) THE next equally important question relates about the punishment to be awarded to the accused persons in background of the events of the case. ( 16 ) THE determination of right measure of punishment is often a point of great difficulty and no hard and fast rule can be laid down, being a matter of discretion which is to be guided by a variety of considerations. But, the Courts must always bear in mind the necessity of maintaining proportion between the offence and the penalty imposed for it. In a case of death, a person who causes death should also compensate the heirs and dependents of the deceased for the loss resulting from the death, specially where substantial term of imprisonment is not imposed. Some salient features of the case cannot be lost sight of while deciding the question of punishment. In the instant case, Sukhdev lost his life for no fault on his part. He simply denied to oblige the appellant Shaitan Singh to provide Namkeen on credit basis and it was within his right to do so. It was really an act of high handedness and terrorism on the part of appellants, to follow the rule of might. They took law in their hands ignoring the rule of law which governs the society. No person, howsoever big or mighty he may be, is above the law: Such cases should visit deterrent punishment to be a pointer for others and give a message that we are governed by the Trule of law and not by the rule of jungle. The legal heirs of the deceased are sufferers of the irreparable loss due to the death of Sukhdev and they should also be adequately compensated. Section 357 of the Code of Criminal Procedure makes specific provision to order for payment of compensation not only out of the fine that would be imposed under the law, but even in those cases where a Court imposes a sentence of which fine does not form a part. The provisions contained in Section 357 are important and have an object behind it. The provisions contained in Section 357 are important and have an object behind it. They give a message of their own in this regard. Under this provision, the power of the Court to award compensation is not ancillary to other sentences, but it is in addition thereto. It is intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. The quantum of compensation may be determined by taking into account the nature of the crime, the manner in which it has been committed, the justness of claim by the victim and the ability of the accused to pay. The Apex Court of the country has recommended to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. ( 17 ) IN Han Singh v. Sukhbir Singh, the Apex Court of the country while considering the object and the scope of Section 357 of the Code, observed as under (Para 10 of the judgment): 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 the accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is an 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 in deed 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. It is, to some extent, a constructive approach to crimes it is in deed 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. (Italised by us) ( 18 ) HAVING regard to all the facts and circumstances, we are of the opinion that for the offence under Section 325 read with Section 149 I. P. C. , the appellants, namely Prahlad Singh, Amar Singh, Han Singh, Shaitan Singh and Malkhan Singh be sentenced to suffer rigorous imprisonment for a term of five years and to pay a fine of Rs. 15,000/each to be paid to the legal heirs of the deceased. ( 19 ) THE net result of the above discussion is that the appeal of the appellant Jai Singh is allowed in toto. He is acquitted of all the charges. His conviction and sentences as awarded by the Trial Court are set-aside. He is on bail and need not surrender to his bail bonds. The appeal of other appellants, Prahlad Singh, Amar Singh, Han Singh, Shaitan Singh and Malkhan Singh is allowed in part. They are acquitted of the charge under Section 302 read with Section 149 I. P. C. and their conviction and sentence for this offence are set-aside; instead, they are convicted under Section 325 read with Section 149 I. P. C. and sentenced to undergo rigorous imprisonment for a term of five years and to pay a fine of Rs. 15,000/each. The fine shall be recovered under Section 431 Cr. P. C. In case, the fine is recovered, whole of the amount shall be paid to legal heirs of the deceased Sukhdev who are sufferers of irreparable losses due to his death. In case, the amount of fine is not recovered, each of the appellant shall undergo further rigorous imprisonment for a period of eighteen months. Their conviction and sentences under Sections 364 and 147 I. P. C. as awarded by the Trial Court are also maintained. The substantive sentences awarded for different offences shall run concurrently. The appellant Prahlad Singh is on bail. The Trial Court shall take necessary steps for his arrest for undergoing remaining part of the sentences. Appeal disposed of accordingly. .