An injunction is enacted by the Act against
passing of the sentence of imprisonment, which the court
under the normal circumstances and law is empowered to
pass. The imposition of default sentence on a person being
dealt with under Sections 3 and 4 of the Act is against the
policy of the Act as contained in the Preamble and the
Object of the Act. The Apex Court in Isher Das (supra)
held that the object of Probation of Offenders Act is to
avoid imprisonment of the person covered by the
provisions of that Act. Once the court is satisfied that there
exists ground for releasing the offender after admonition
under Section 3 of the Act or awarding deferred sentence
under Section 4 of the Act, it will be against the object,
purpose and spirit of the said provisions to direct the
indicted person to go to jail to serve out the sentence in
lieu of payment of compensation. In such a situation, the
purpose of the provisions of Section 3 or Section 4 of the
Act is likely to be frustrated. As the object of Probation of
Offenders Act is to avoid imprisonment of the person
covered by the provisions of the Act, the said object cannot
be set at naught by imposing default sentence. Since the
object of the Act is to reform and rehabilitate the offender
as a useful and self-reliant member of the society without
subjecting him to deleterious effects of jail life, I am of the
view that imposing default sentence for non-payment of
compensation under Section 5 of the Act is not legal and
correct. For the said reasons, the courts below went wrong
in awarding the default sentence for non-payment of
compensation under Section 5 of the Act.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.SUDHEENDRA KUMAR
THURSDAY, THE 29TH DAY OF OCTOBER 2015
Crl.Rev.Pet.No. 1520 of 2010 ( )
SCARIA @ KARIACHETAN,S/O.IYPE, V STATE OF KERALA,
The revision petitioner is the accused in C.C. No.397
of 2006 on the files of the Court of the Judicial Magistrate
of First Class, Nilambur.
2. The trial court convicted the revision petitioner
under Sections 447 and 324 of I.P.C. and released him
under Section 4 of the Probation of Offenders Act,1958, on
his executing a bond for Rs.10,000/- with two solvent
sureties, each for the like sum undertaking to keep peace
and maintain good behaviour for one year and to appear
and receive the sentence as and when called for within the
said period of one year. The revision petitioner was also
directed to pay a sum of Rs.2,000/- to PW3 as
compensation under Section 5 of the Probation of
Offenders Act with a default clause for simple
imprisonment for one month. The appeal filed against the
said conviction and order of probation was dismissed.
3. The prosecution allegation is that on 27.10.2006 at
about 6.30 p.m., the revision petitioner trespassed into the
court yard of the house of PW3 and caused hurt on him by
hitting him with a torch.
4. Before the trial court, PW1 to PW6 were examined
and Exts.P1 to P4 were marked for the prosecution, besides
identifying MO1 torch. Exts.D1 to D3 were marked for the
defence.
5. PW3 is the injured, who stated about the incident
in tune with the prosecution case. According to PW3, on
27.10.2006 at about 6.30 p.m., the revision petitioner
uttered abusive words against PW2, who was the Vicar of
the church, when PW2 reached the court yard of the house
of PW3. On seeing this, PW3 intervened. Then, the
revision petitioner hit PW3 with MO1 torch, causing
injuries on him.
6. PW2 is the occurrence witness, who supported the
evidence of PW3 in all material aspects.
7. It has been argued by the learned counsel for the
revision petitioner that eventhough there was no medical
evidence before the Court to prove the injuries sustained by
PW3, the courts below convicted the revision petitioner
under Section 324 I.P.C. and consequently, the conviction
and sentence under Section 324 I.P.C. cannot be sustained.
8. Per contra, the learned Public Prosecutor has
argued that since there was evidence of PW2 and PW3 with
regard to the injuries sustained by PW3, the courts below
rightly convicted the revision petitioner under Section 324
I.P.C., particularly when the weapon with which the
infliction was made by the revision petitioner was also
recovered and identified.
9. In this context, it will be profitable to extract
Section 324 I.P.C., which reads thus :-
"324. Voluntarily causing hurt by dangerous
weapons or means:- Whoever, except in the case
provided for by section 334, voluntarily causes hurt by
means of any instrument for shooting, stabbing or
cutting, or any instrument which, used as weapon of
offence, is likely to cause death, or by means of fire or
any heated substance, or by means of any poison or any
corrosive substance, or by means of any explosive
substance or by means of any substance which it is
deleterious to the human body to inhale, to swallow, or
to receive into the blood, or by means of any animal,
shall be punished with imprisonment of either
description for a term which may extend to three years,
or with fine, or with both."
It is clear from Section 324 I.P.C. that in order to attract the
offence under Section 324 I.P.C., hurt should be caused by
means of any weapon as described under Section 324 I.P.C.
10. Hurt is defined in Section 319 I.P.C., which reads
as follows:-
"319. Hurt:- Whoever causes bodily pain,
disease or infirmity to any person is said to cause
hurt".
11. It is clear from Section 319 I.P.C. that in order to
constitute hurt, even bodily pain is sufficient. The
evidence of PW3 would show that PW3 was admitted in
the hospital after the incident in this case, as he sustained
injury in the incident. PW3 stated that he fell down and
became unconscious when the revision petitioner hit with
MO1 torch on his face. PW2 also supported the evidence
of PW3 in all material aspects. Ext.P2 F.I.Statement would
also show that PW3 sustained hurt in the incident. Thus,
the evidence of PW2 and PW3 coupled with Ext.P2
F.I.Statement would prove that PW3 sustained hurt in the
incident. The wound certificate was, in fact, produced
before the trial court. It is borne out from the records that
the doctor, who examined PW3 and issued the wound
certificate, went abroad after closing the hospital.
Therefore, the wound certificate was not proved before the
trial court. However, since there is reliable evidence of
PW2 and PW3, the absence of medical evidence would not
affect the prosecution case, particularly when PW3
sustained only hurt in the incident. The evidence of PW2
and PW3 would show that MO1 was used by the revision
petitioner to inflict injury on PW3. MO1 is a torch having
a length of 18 c.m. as per Ext.P3 seizure mahazar.
Therefore, MO1 is, no doubt, an instrument which if used
as a weapon of offence, is likely to cause death. The
evidence discussed above would show that the revision
petitioner voluntarily caused hurt on PW3 with a dangerous
weapon, namely, MO1 torch. Therefore, the courts below
rightly convicted the revision petitioner under Section 324
I.P.C. In view of the above reasons, the argument in this
regard advanced by the learned counsel for the revision
petitioner cannot be accepted.
12. The courts below, after evaluating the oral and
documentary evidence adduced by the prosecution,
concurrently found that the revision petitioner committed
the offence under Sections 447 and 324 I.P.C. Since there
is concurrent finding on facts, this Court will not be
justified in interfering with the same unless the finding is
perverse or incorrect. No circumstance has been brought to
my notice to indicate that the concurrent finding by the
courts below was perverse or incorrect. For the said reason,
the concurrent finding by the courts below that the revision
petitioner committed the offence under Sections 447 and
324 I.P.C. does not warrant any interference by this Court.
13. The learned counsel for the revision petitioner has
argued that the courts below went wrong in awarding
imprisonment for non-payment of compensation under
Section 5 of the Probation of Offenders Act and in the said
circumstances, the said part of the order cannot be
sustained.
14. The learned Public Prosecutor has also fairly
conceded that the courts below ought not have awarded
default sentence for non-payment of compensation under
Section 5 of the Probation of Offenders Act.
15. The preamble to the Probation of Offenders Act
reads thus:-
"An Act to provide for the release of offenders
on probation or after due admonition and for matters
connected therewith."
The object of the Probation of Offenders Act is the
reformation and rehabilitation of the offender as a useful
and self-reliant member of the society without subjecting
him to the deleterious effects of jail life.
16. Section 5 of the Act empowers the Court to direct
payment of compensation and costs in the event of
invoking Section 3 or Section 4 of the Act. Therefore,
while releasing the offender after admonition under Section
3 of the Act and awarding deferred sentence under Section
4 of the Act, the court has the power to take steps to
compensate the victim of the crime under Section 5 of the
Act.
17. Section 5 of the Probation of Offenders Act is
extracted hereunder:-
"5. Power of court to require released
offenders to pay compensation and costs:-(1) The
court directing the release of an offender under section
3 or section 4, may, if it thinks fit, make at the same
time a further order directing him to pay-
(a) such compensation as the court thinks
reasonable for loss or injury caused to any person by
the commission of the offence; and
(b) such costs of the proceedings as the court
thinks reasonable.
(2) The amount ordered to be paid under sub-
section (1) may be recovered as a fine in accordance
with the provisions of sections 386 and 387 of the
Code.
(3) A civil court trying any suit, arising out of the
same matter for which the offender is prosecuted, shall
take into account any amount paid or recovered as
compensation under sub-section (1) in awarding
damages."
18. It is clear from sub-section (2) of 5 of the Act that
the amount ordered to be paid under sub-section (1) may
be recovered as a fine in accordance with the provisions of
Sections 386 and 387 of the Code. Sections 386 and 387
of the old Code correspond to Sections 421 and 422 of the
new Code. Therefore, the compensation ordered under
Section 5 of the Act can be realised by resorting to the
procedure under Section 421 of the Code. Proviso to
Section 421 (3) of the Code provides that no warrant as
provided under Section 421 of the Code shall be executed
by the arrest or detention in prison of the offender.
Therefore, for the recovery of the fine, there is inhibition in
arresting and detaining the offender in custody.
19. The Apex Court in Isher Das v. The State of
Punjab (AIR 1972 S.C. 1295), referring to the Prevention
of Food Adulteration Act and the Probation of Offenders
Act held thus:-
" Mr Mahajan has argued that if the trial
magistrate took the view that the accused-appellant in
view of his age, should not be sentenced to undergo
imprisonment, the learned magistrate should still have
imposed the sentence of fine as prescribed by sub-
section (1) of section 16 of the Act. In this respect, we
are of the opinion that a sentence of fine also carries
with it the consequence of imprisonment in case the
accused fails to pay the fine. As the object of Probation
of Offenders Act is to avoid imprisonment of the person
covered by the provisions of that Act, the said object
cannot be set at naught by imposing a sentence of fine
which would necessarily entail imprisonment in case
there is a default in payment of fine."
20. An injunction is enacted by the Act against
passing of the sentence of imprisonment, which the court
under the normal circumstances and law is empowered to
pass. The imposition of default sentence on a person being
dealt with under Sections 3 and 4 of the Act is against the
policy of the Act as contained in the Preamble and the
Object of the Act. The Apex Court in Isher Das (supra)
held that the object of Probation of Offenders Act is to
avoid imprisonment of the person covered by the
provisions of that Act. Once the court is satisfied that there
exists ground for releasing the offender after admonition
under Section 3 of the Act or awarding deferred sentence
under Section 4 of the Act, it will be against the object,
purpose and spirit of the said provisions to direct the
indicted person to go to jail to serve out the sentence in
lieu of payment of compensation. In such a situation, the
purpose of the provisions of Section 3 or Section 4 of the
Act is likely to be frustrated. As the object of Probation of
Offenders Act is to avoid imprisonment of the person
covered by the provisions of the Act, the said object cannot
be set at naught by imposing default sentence. Since the
object of the Act is to reform and rehabilitate the offender
as a useful and self-reliant member of the society without
subjecting him to deleterious effects of jail life, I am of the
view that imposing default sentence for non-payment of
compensation under Section 5 of the Act is not legal and
correct. For the said reasons, the courts below went wrong
in awarding the default sentence for non-payment of
compensation under Section 5 of the Act.
In the result, this revision petition stands allowed in
part confirming the conviction, the order of probation
under Section 4 of the Act and the order of compensation
under Section 5 of the Act, passed by the trial court as
confirmed by the appellate Court. However, the default
sentence awarded by the courts below under Section 5 of
the Act stands set aside.
Sd/-
B.SUDHEENDRA KUMAR,
JUDGE
dl/30.10.2015
Print Page
passing of the sentence of imprisonment, which the court
under the normal circumstances and law is empowered to
pass. The imposition of default sentence on a person being
dealt with under Sections 3 and 4 of the Act is against the
policy of the Act as contained in the Preamble and the
Object of the Act. The Apex Court in Isher Das (supra)
held that the object of Probation of Offenders Act is to
avoid imprisonment of the person covered by the
provisions of that Act. Once the court is satisfied that there
exists ground for releasing the offender after admonition
under Section 3 of the Act or awarding deferred sentence
under Section 4 of the Act, it will be against the object,
purpose and spirit of the said provisions to direct the
indicted person to go to jail to serve out the sentence in
lieu of payment of compensation. In such a situation, the
purpose of the provisions of Section 3 or Section 4 of the
Act is likely to be frustrated. As the object of Probation of
Offenders Act is to avoid imprisonment of the person
covered by the provisions of the Act, the said object cannot
be set at naught by imposing default sentence. Since the
object of the Act is to reform and rehabilitate the offender
as a useful and self-reliant member of the society without
subjecting him to deleterious effects of jail life, I am of the
view that imposing default sentence for non-payment of
compensation under Section 5 of the Act is not legal and
correct. For the said reasons, the courts below went wrong
in awarding the default sentence for non-payment of
compensation under Section 5 of the Act.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.SUDHEENDRA KUMAR
THURSDAY, THE 29TH DAY OF OCTOBER 2015
Crl.Rev.Pet.No. 1520 of 2010 ( )
SCARIA @ KARIACHETAN,S/O.IYPE, V STATE OF KERALA,
The revision petitioner is the accused in C.C. No.397
of 2006 on the files of the Court of the Judicial Magistrate
of First Class, Nilambur.
2. The trial court convicted the revision petitioner
under Sections 447 and 324 of I.P.C. and released him
under Section 4 of the Probation of Offenders Act,1958, on
his executing a bond for Rs.10,000/- with two solvent
sureties, each for the like sum undertaking to keep peace
and maintain good behaviour for one year and to appear
and receive the sentence as and when called for within the
said period of one year. The revision petitioner was also
directed to pay a sum of Rs.2,000/- to PW3 as
compensation under Section 5 of the Probation of
Offenders Act with a default clause for simple
imprisonment for one month. The appeal filed against the
said conviction and order of probation was dismissed.
3. The prosecution allegation is that on 27.10.2006 at
about 6.30 p.m., the revision petitioner trespassed into the
court yard of the house of PW3 and caused hurt on him by
hitting him with a torch.
4. Before the trial court, PW1 to PW6 were examined
and Exts.P1 to P4 were marked for the prosecution, besides
identifying MO1 torch. Exts.D1 to D3 were marked for the
defence.
5. PW3 is the injured, who stated about the incident
in tune with the prosecution case. According to PW3, on
27.10.2006 at about 6.30 p.m., the revision petitioner
uttered abusive words against PW2, who was the Vicar of
the church, when PW2 reached the court yard of the house
of PW3. On seeing this, PW3 intervened. Then, the
revision petitioner hit PW3 with MO1 torch, causing
injuries on him.
6. PW2 is the occurrence witness, who supported the
evidence of PW3 in all material aspects.
7. It has been argued by the learned counsel for the
revision petitioner that eventhough there was no medical
evidence before the Court to prove the injuries sustained by
PW3, the courts below convicted the revision petitioner
under Section 324 I.P.C. and consequently, the conviction
and sentence under Section 324 I.P.C. cannot be sustained.
8. Per contra, the learned Public Prosecutor has
argued that since there was evidence of PW2 and PW3 with
regard to the injuries sustained by PW3, the courts below
rightly convicted the revision petitioner under Section 324
I.P.C., particularly when the weapon with which the
infliction was made by the revision petitioner was also
recovered and identified.
9. In this context, it will be profitable to extract
Section 324 I.P.C., which reads thus :-
"324. Voluntarily causing hurt by dangerous
weapons or means:- Whoever, except in the case
provided for by section 334, voluntarily causes hurt by
means of any instrument for shooting, stabbing or
cutting, or any instrument which, used as weapon of
offence, is likely to cause death, or by means of fire or
any heated substance, or by means of any poison or any
corrosive substance, or by means of any explosive
substance or by means of any substance which it is
deleterious to the human body to inhale, to swallow, or
to receive into the blood, or by means of any animal,
shall be punished with imprisonment of either
description for a term which may extend to three years,
or with fine, or with both."
It is clear from Section 324 I.P.C. that in order to attract the
offence under Section 324 I.P.C., hurt should be caused by
means of any weapon as described under Section 324 I.P.C.
10. Hurt is defined in Section 319 I.P.C., which reads
as follows:-
"319. Hurt:- Whoever causes bodily pain,
disease or infirmity to any person is said to cause
hurt".
11. It is clear from Section 319 I.P.C. that in order to
constitute hurt, even bodily pain is sufficient. The
evidence of PW3 would show that PW3 was admitted in
the hospital after the incident in this case, as he sustained
injury in the incident. PW3 stated that he fell down and
became unconscious when the revision petitioner hit with
MO1 torch on his face. PW2 also supported the evidence
of PW3 in all material aspects. Ext.P2 F.I.Statement would
also show that PW3 sustained hurt in the incident. Thus,
the evidence of PW2 and PW3 coupled with Ext.P2
F.I.Statement would prove that PW3 sustained hurt in the
incident. The wound certificate was, in fact, produced
before the trial court. It is borne out from the records that
the doctor, who examined PW3 and issued the wound
certificate, went abroad after closing the hospital.
Therefore, the wound certificate was not proved before the
trial court. However, since there is reliable evidence of
PW2 and PW3, the absence of medical evidence would not
affect the prosecution case, particularly when PW3
sustained only hurt in the incident. The evidence of PW2
and PW3 would show that MO1 was used by the revision
petitioner to inflict injury on PW3. MO1 is a torch having
a length of 18 c.m. as per Ext.P3 seizure mahazar.
Therefore, MO1 is, no doubt, an instrument which if used
as a weapon of offence, is likely to cause death. The
evidence discussed above would show that the revision
petitioner voluntarily caused hurt on PW3 with a dangerous
weapon, namely, MO1 torch. Therefore, the courts below
rightly convicted the revision petitioner under Section 324
I.P.C. In view of the above reasons, the argument in this
regard advanced by the learned counsel for the revision
petitioner cannot be accepted.
12. The courts below, after evaluating the oral and
documentary evidence adduced by the prosecution,
concurrently found that the revision petitioner committed
the offence under Sections 447 and 324 I.P.C. Since there
is concurrent finding on facts, this Court will not be
justified in interfering with the same unless the finding is
perverse or incorrect. No circumstance has been brought to
my notice to indicate that the concurrent finding by the
courts below was perverse or incorrect. For the said reason,
the concurrent finding by the courts below that the revision
petitioner committed the offence under Sections 447 and
324 I.P.C. does not warrant any interference by this Court.
13. The learned counsel for the revision petitioner has
argued that the courts below went wrong in awarding
imprisonment for non-payment of compensation under
Section 5 of the Probation of Offenders Act and in the said
circumstances, the said part of the order cannot be
sustained.
14. The learned Public Prosecutor has also fairly
conceded that the courts below ought not have awarded
default sentence for non-payment of compensation under
Section 5 of the Probation of Offenders Act.
15. The preamble to the Probation of Offenders Act
reads thus:-
"An Act to provide for the release of offenders
on probation or after due admonition and for matters
connected therewith."
The object of the Probation of Offenders Act is the
reformation and rehabilitation of the offender as a useful
and self-reliant member of the society without subjecting
him to the deleterious effects of jail life.
16. Section 5 of the Act empowers the Court to direct
payment of compensation and costs in the event of
invoking Section 3 or Section 4 of the Act. Therefore,
while releasing the offender after admonition under Section
3 of the Act and awarding deferred sentence under Section
4 of the Act, the court has the power to take steps to
compensate the victim of the crime under Section 5 of the
Act.
17. Section 5 of the Probation of Offenders Act is
extracted hereunder:-
"5. Power of court to require released
offenders to pay compensation and costs:-(1) The
court directing the release of an offender under section
3 or section 4, may, if it thinks fit, make at the same
time a further order directing him to pay-
(a) such compensation as the court thinks
reasonable for loss or injury caused to any person by
the commission of the offence; and
(b) such costs of the proceedings as the court
thinks reasonable.
(2) The amount ordered to be paid under sub-
section (1) may be recovered as a fine in accordance
with the provisions of sections 386 and 387 of the
Code.
(3) A civil court trying any suit, arising out of the
same matter for which the offender is prosecuted, shall
take into account any amount paid or recovered as
compensation under sub-section (1) in awarding
damages."
18. It is clear from sub-section (2) of 5 of the Act that
the amount ordered to be paid under sub-section (1) may
be recovered as a fine in accordance with the provisions of
Sections 386 and 387 of the Code. Sections 386 and 387
of the old Code correspond to Sections 421 and 422 of the
new Code. Therefore, the compensation ordered under
Section 5 of the Act can be realised by resorting to the
procedure under Section 421 of the Code. Proviso to
Section 421 (3) of the Code provides that no warrant as
provided under Section 421 of the Code shall be executed
by the arrest or detention in prison of the offender.
Therefore, for the recovery of the fine, there is inhibition in
arresting and detaining the offender in custody.
19. The Apex Court in Isher Das v. The State of
Punjab (AIR 1972 S.C. 1295), referring to the Prevention
of Food Adulteration Act and the Probation of Offenders
Act held thus:-
" Mr Mahajan has argued that if the trial
magistrate took the view that the accused-appellant in
view of his age, should not be sentenced to undergo
imprisonment, the learned magistrate should still have
imposed the sentence of fine as prescribed by sub-
section (1) of section 16 of the Act. In this respect, we
are of the opinion that a sentence of fine also carries
with it the consequence of imprisonment in case the
accused fails to pay the fine. As the object of Probation
of Offenders Act is to avoid imprisonment of the person
covered by the provisions of that Act, the said object
cannot be set at naught by imposing a sentence of fine
which would necessarily entail imprisonment in case
there is a default in payment of fine."
20. An injunction is enacted by the Act against
passing of the sentence of imprisonment, which the court
under the normal circumstances and law is empowered to
pass. The imposition of default sentence on a person being
dealt with under Sections 3 and 4 of the Act is against the
policy of the Act as contained in the Preamble and the
Object of the Act. The Apex Court in Isher Das (supra)
held that the object of Probation of Offenders Act is to
avoid imprisonment of the person covered by the
provisions of that Act. Once the court is satisfied that there
exists ground for releasing the offender after admonition
under Section 3 of the Act or awarding deferred sentence
under Section 4 of the Act, it will be against the object,
purpose and spirit of the said provisions to direct the
indicted person to go to jail to serve out the sentence in
lieu of payment of compensation. In such a situation, the
purpose of the provisions of Section 3 or Section 4 of the
Act is likely to be frustrated. As the object of Probation of
Offenders Act is to avoid imprisonment of the person
covered by the provisions of the Act, the said object cannot
be set at naught by imposing default sentence. Since the
object of the Act is to reform and rehabilitate the offender
as a useful and self-reliant member of the society without
subjecting him to deleterious effects of jail life, I am of the
view that imposing default sentence for non-payment of
compensation under Section 5 of the Act is not legal and
correct. For the said reasons, the courts below went wrong
in awarding the default sentence for non-payment of
compensation under Section 5 of the Act.
In the result, this revision petition stands allowed in
part confirming the conviction, the order of probation
under Section 4 of the Act and the order of compensation
under Section 5 of the Act, passed by the trial court as
confirmed by the appellate Court. However, the default
sentence awarded by the courts below under Section 5 of
the Act stands set aside.
Sd/-
B.SUDHEENDRA KUMAR,
JUDGE
dl/30.10.2015
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