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2023 DIGILAW 411 (HP)

Pappi Mohammad v. State of Himachal Pradesh

2023-07-17

SUSHIL KUKREJA

body2023
JUDGMENT : SUSHIL KUKREJA, J. The instant revision petition is maintained by the petitioner/accused/convict (hereinafter referred to as “the accused”) under Sections 397 Cr.P.C. against judgment, dated 18.11.2021, passed by learned Sessions Judge, Chamba, District Chamba, H.P., whereby the appeal filed by the accused against judgment of conviction and order of sentence, dated 08.07.2021, passed by learned Chief Judicial Magistrate, Chamba, District Chamba, H.P., titled State of Himachal Pradesh vs. Pappi Mohammad, was affirmed and the appeal filed by the accused was dismissed. 2. The brief facts, giving rise to the present revision petition, can succinctly be summarized as under: 2(a). As per the prosecution story, on 30.07.2010, Smt. Raj Kumari (complainant) alleged that after attending the Minjar Fair, she returned back home at 09:30 p.m. and kept her purse on the bed containing gold tops, pair of gold chambyali ear rings, gold chain, credit card of Patial Bank, another gold chain with locket, mobile phone Nokia and thereafter she fell asleep. On the next morning at 07:00 a.m., her purse was found missing, which had been stolen by some unknown person while she was sleeping in the room. The complainant further stated that value of the articles was around Rs.90,000/-. On the basis of the complaint, so made by the complainant, police registered FIR No. 195 of 2010, dated 31.07.2010, under Section 380 IPC and the investigation commenced. 2(b). During the course of investigation, police recorded the statements of the witnesses, prepared the spot map and procured the call detail record of Mobile No.8894306363. On 07.08.2021 one Sunny appeared before the police with a mobile phone, which he allegedly received in exchange from Pappi Mohammad (accused herein). Afterwards, it was unearthed that the aforesaid mobile phone was stolen from one Vinod Jaswal. The accused was arrested and during the course of interrogation, he made a disclosure statement and got recovered the stolen articles, which he had kept concealed. The complainant identified the articles and claimed that the said articles belonged to her. 2(c). During further course of investigation it was unearthed that during the intervening night of 30th and 31st July, 2010, accused Pappi Mohammad committed theft of the purse of the complainant, which contained the said articles. The complainant identified the articles and claimed that the said articles belonged to her. 2(c). During further course of investigation it was unearthed that during the intervening night of 30th and 31st July, 2010, accused Pappi Mohammad committed theft of the purse of the complainant, which contained the said articles. After completion of investigation, police presented the challan in the learned Trial Court and the learned Trial Court, vide its judgment dated 08.07.2021, convicted the accused and sentenced him to undergo rigorous imprisonment for a period of one year for commission of offence under Section 380 IPC and to pay compensation of Rs. 50,000/- to the complainant for the loss and injury sustained by her under Section 357(3) Cr.P.C.. 3. Feeling aggrieved, the accused/convict preferred an appeal before the learned Sessions Judge, against the judgment of the learned Trial Court, which was dismissed, hence the instant revision petition. 4. I have heard the learned Senior Counsel for the petitioner/accused/convict, learned Additional Advocate General for the respondent/State and meticulously examined the records. 5. At the very outset, the learned Senior Counsel for the petitioner did not argue the case on merits, but alternatively submitted that the petitioner has already undergone the sentence of one year, as awarded by the learned Trial Court for the commission of the offence under Section 380 IPC. However, he submitted that the accused is a poor person and is not in a position to pay the compensation amount, therefore, the compensation of Rs.50,000/-, as awarded by the learned Trial Court to the complainant under Section 357 (3) Cr.P.C. deserves to be set-aside. 6. After going through the entire record, I do not find any perversity and infirmity in the findings recorded by the learned Trial Court and affirmed by the learned Lower Appellate Court in the impugned judgments with respect to conviction of the accused under Section 380 IPC. While convicting the accused under Section 380 IPC, the learned Trial Court had sentenced the accused to undergo the rigorous imprisonment for a period of one year for the commission of offence under Section 380 IPC and in addition he was held liable to pay compensation of Rs.50,000/- to the complainant, under Section 357(3) Cr.P.C., for the loss and injury sustained by her. It is not in dispute that the accused had already undergone the sentence for a period of one year, as awarded by the learned Trial Court. So far as the sentence with respect to the liability of the accused to pay the compensation of Rs.50,000/- to the complainant is concerned, the perusal of the judgment passed by the learned Trial Court shows that neither any inquiry was conducted by the learned Trial Court to determine the paying capacity of the petitioner, nor any reason has been assigned while awarding the compensation. 7. It is a settled law that the amount of compensation is to be determined by the Courts, depending upon the facts and circumstances of each case, nature and gravity of the offence and the capacity of the accused to pay. The compensation cannot be awarded merely at the whims and caprice of a judge. In (2002) 6 Supreme Court Cases 462, Rachhpal Singh & another vs. State of Punjab, the Hon’ble Supreme Court has observed that the compensation in question should commensurate with the capacity of the accused to pay as also other facts and circumstances of that case like the gravity of the offence, the needs of the victim’s family etc.. Relevant para of the judgment (supra) is as under:- “12. … … … In our opinion it is in the exercise of this power under Section 357(3) that the High Court has awarded the compensation in question, therefore it was well within the jurisdiction of the High Court. The question then is, as contended by the learned counsel for the appellants, was there sufficient material for awarding this sum of Rs. 2 lakhs each? Learned counsel submit that this figure is arrived at arbitrarily by the High Court without there being any evidence in this regard and that the high Court has not given an opportunity to the appellants to adduce any evidence as to their monetary capability or as to the requirement of the victim/s family. Therefore, the learned counsel pleads that this exorbitant amount could not have been awarded. In support of this argument learned counsel has relied on Palaniappa Gounder v. State of T.N., (1977) 2 SCC 634 : 1977 SCC (Cri) 397 : AIR 1977 SC 1323 and Sarwan Singh v. State of Punjab, (1978) 4 SCC 111 : 1978 SCC (Cri) 549 : AIR 1978 SC 1525 . In support of this argument learned counsel has relied on Palaniappa Gounder v. State of T.N., (1977) 2 SCC 634 : 1977 SCC (Cri) 397 : AIR 1977 SC 1323 and Sarwan Singh v. State of Punjab, (1978) 4 SCC 111 : 1978 SCC (Cri) 549 : AIR 1978 SC 1525 . It is true that in those cases this Court while considering the compensation awarded by the courts below held that the compensation in question should commensurate with the capacity of the accused to pay as also other facts and circumstances of that case like the gravity of the offence, the needs of the victim’s family etc. While saying so, we notice from these very same judgments cited by the learned counsel that it is clear that the jurisdiction of the court to grant compensation is accepted by this Court. 8. In Sarwan Singh vs. State of Punjab (1978) 4 SCC 111, the Hon’ble Supreme Court has held that in awarding compensation it is necessary for the Court to decide whether the case is a fit one in which compensation has to be awarded and if it is found that compensation should be paid, then the capacity of the accused to pay a compensation has to be determined. Relevant para of the judgment (supra) is reproduced as under:- “10. … … Though Section 545 enabled the court only to pay compensation out of the fine that would be imposed under the law, by Section 357 (3) when a Court imposes a sentence, of which fine does not form a part, the Court may direct the accused to pay compensation. In awarding compensation it is necessary for the Court to decide whether the case is a fit one in which compensation has to be awarded. If it is found that compensation should be paid, then the capacity of the accused to pay a compensation has to be determined. In directing compensation, the object is to collect the fine and pay it to the person who has suffered the loss. The purpose will not be served if the accused is not able to pay the fine or compensation for, imposing a default sentence for non- payment of fine would not achieve the object. In directing compensation, the object is to collect the fine and pay it to the person who has suffered the loss. The purpose will not be served if the accused is not able to pay the fine or compensation for, imposing a default sentence for non- payment of fine would not achieve the object. If the accused is in a position to pay the compensation to the injured or his dependents to which they are entitled to, there could be no reason for the court not directing such compensation. When a person, who caused injury due to negligence or is made vicariously liable is bound to pay compensation it is only appropriate to direct payment by the accused who is guilty of causing an injury with the necessary mens rea to pay compensation for the person who has suffered injury.” 9. In Dilip S. Dahanukar vs. Kotak Mahindra Co. Ltd. & another, (2007) 6 Supreme Court Cases 528, the Hon’ble Supreme Court has held that before issuing a direction to pay compensation, the capacity of the accused to pay the same must be judged and an enquiry in this behalf even in a summary way, may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned. Relevant para of the judgment (supra) is extracted as under:- ‘38. The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of the accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way, may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a Judge.’ 10 In the instant case the learned Trial Court had neither conducted any inquiry to determine the paying capacity of the petitioner, nor any reason has been assigned while awarding the compensation. There was no sufficient material before the learned Trial Court to assess the capacity of the petitioner to pay the compensation amount. More so, some of the stolen articles were recovered by the Investigating Agency and the petitioner had already undergone the sentence of imprisonment for one year. In view of the fact that the petitioner is a poor person and there is no material on record about the financial capacity of the petitioner to pay the compensation amount, the sentence awarded by the learned Trial Court qua awarding of compensation of Rs.50,000/-, under Section 357(3) Cr.P.C., to the complainant, deserves to be quashed and set-aside. 11. In view of what has been discussed hereinabove, the instant petition is partly allowed. The conviction of the petitioner under Section 380 IPC is upheld, whereas order of the learned Trial Court directing the petitioner to pay compensation amount of Rs. 50,000/- to the complainant, under Section 357(3) Cr.P.C., which was affirmed by the Appellate Court, is quashed and set-aside. Accordingly, the petition is disposed of, so also pending application(s), if any.