Important Point
Courts should follow Section 421 of Cr.P.C. 1973 properly while making an order for payment of compensation out of fine imposed i.e., the fine be realised even if the convict had undergone imprisonment in default of payment thereof.

Headnote:(i) Indian Penal Code, 1860-Section 302 r/w Section 299 Expl. 2 culpable homicide amounting to murder-Appellant Ramsingh convicted u/s. 302 for stabbing deceased by a button knife on exhortion by his fellow Matadin “Maro Sale Ko”-Death taking place after 10 days of causing bodily injury while taking treatment in Hospital-Whether injury was such as would cause death of a person in normal course? (Yes) - Conviction confirmed-Appeal dismissed.
       Held : We do not think much could be said as far as appellant Ramsingh is concerned. Dr. Pradip (P.W. 3) in his deposition stated that the injury caused to the abdomen of the deceased was sufficient in the normal course to cause death. This statement of Dr. Pradip has not been challenged. (Para 7)
       From the concurrent findings of fact by both the trial Court and the High Court, which are based on proper appreciation of the evidence, we find that ingredients of the offence of murder are present in the case of Ramsingh and he has been rightly convicted for an offence under Section 302 IPC. (Para 8)
       Held thus : Criminal Appeal No. 171 of 1998, filed by Ramsingh, is dismissed. (Para 13)
       (ii) Indian Penal Code, 1860-Sections 302 r/w 34 and 324 r/w 110-Nature of offence-Matadin exhorting in abusive language to his fellows pointing to deceased “Maro Sale Ko”-His fellow Ram Singh inflicting knife injury in stomach of deceased-Deceased dying 10 days thereafter-Courts below convicting Matadin under Sections 302/34 IPC-Appeal against - Whether conviction be confirmed? (No, modified to Sections 324 r/w 110)-Punishment also modified-Imprisonment already undergone and fine of Rs. 50,000/- instead of life imprisonment-Fine be realised and paid to heirs of deceased under Hindu Succession Act even if the convict had undergone imprisonment of nine months in default of payment? (Criminal Procedure Code, 1973- Section 421-Compensation to victim out of fine).
       Held : The courts below have not found that the language which Matadin used exhorting his fellows was used in such a tone as to exhort them to kill Ashok or to cause grievous hurt to him by using dangerous weapons or means. When the words “maro sale ko” are used it could mean “to beat” or even “to kill” a person. Though the witnesses have stated that these words were used by Matadin in abusive way but from that it could not be said that he exhorted his fellows to kill Ashok. We, therefore, set aside the conviction and sentence of Matadin under Section 302 read with Section 34 IPC and instead convict him under Section 324/110 IPC. It was stated before us that he has already undergone rigorous imprisonment for a period of one year and four months. We will sentence him to suffer rigorous imprisonment for the period already undergone by him and to fine. In the present case what we find is that the victim was a vegetable seller. At the time of crime he was 25 years of age. Ramsingh was a milk vender and Matadin was a municipal councilor. It was at the instigation of Matadin that Ramsingh inflicted stab wound which resulted in the death of Ashok. Though we found Matadin guilty of offence under Section 324/110 IPC and sentenced him to undergo rigorous imprisonment for the period already undergone by him we may further sentence him to a fine of Rs. 50,000/- and in default of payment of fine to undergo further rigorous imprisonment for nine months. We may also record the willingness of Mr. Lalit, learned counsel for Matadin, to pay the amount of fine so imposed. The fine so realised shall be paid to the heirs of the deceased Ashok under the provision of the Hindu Succession Act, 1956. We may also draw the attention of the Courts to the provisions of Section 421 Cr.P.C. and particularly, to proviso to sub-section (1) thereof which provides, inter alia, that in a case where an order for payment of compensation out of the fine imposed, is made the fine be realised even if the convict had undergone imprisonment in default of payment thereof. (Paras 11 and 12)
       Consequently held : Criminal Appeal No. 835 of 1997, filed by Matadin, is partly allowed. Appellant Matadin is convicted for an offence under Section 324 read with Section 110 IPC and sentenced to undergo rigorous imprisonment for the period already undergone by him and to a fine of Rs. 50,000/- and in default of payment of fine to undergo further rigorous imprisonment for a period of nine months. The fine should be paid within two months and when realised, shall be paid to the heirs of the deceased Ashok under the Hindu Succession Act, 1956. (Para 14)

Judgment

D.P. Wadhwa, J.-These two appeals have been separately filed by two appellants against common judgment dated February 11, 1997 of the Bombay High Court (Nagpur Bench) upholding the conviction of the appellants under Section 302 read with Section 34 of the Indian Penal Code (for short ‘IPC’) and sentence of imprisonment for life awarded to both of them. The appellant Matadin in Criminal Appeal No. 835 of 1997 and appellant Ramsingh in Criminal Appeal No. 171 of 1998 were respectively arrayed as accused Nos. 4 and 1 in the trial Court.

2. The appellants were tried along with four others for offences under Sections 147, 148, 149 and 302 IPC. During the trial one of the accused died and three of them were acquitted. The learned additional Sessions Judge held that prosecution had failed to prove that the accused were members of an unlawful assembly and in prosecution of common object of such assembly had committed the offence of rioting with deadly weapons. He, however, held that Ramsingh (in Criminal Appeal No. 474 of 1998) and Matadin (in Criminal Appeal No. 835 of 1997) committed offence punishable under Section 302 read with Section 34 IPC and sentenced each of them to imprisonment for life. Their conviction and sentence, as noted above, were upheld by the High Court.

3. Aggrieved, appellants approached this Court under Article 136 of the Constitution and this Court did grant them leave to appeal.

4. Conviction of the appellants is based on the dying declaration of the deceased (Ashok) and the two eye witnesses, namely, Satish Waghmare (P.W. 1) and Anil Singh Bias (P.W. 2). The incident as it happened can be best described by the statement, which the deceased made to the police after he was attacked and consequent upon his death became a dying declaration and in his dying declaration which was recorded at 11.30 P.M. on the same day by an Executive Magistrate, which are as under :-

1. Report lodged by the deceased with the police :-

“I reside in Gaushala Ward and do the business of selling vegetables. This day 6-6-86 at about 10-00 o’clock in the night, I along with Anil Bias, Narayan Tondhare and Satish Waghmare were standing talking together in Paras Chowk. Matadin, Udelal, Shivdayal, Ramsingh and other two persons whose names are not known to me, were also present there. When I started talking with Matadin, he said to me, “Do not be a Rangdar (over smart)”. On it, I replied, “How a vegetable seller like me can show Rangdari (over smartness)”. On it, Matadin said, “Maro sale ko (Abusive term)”. Thereupon, Ramsingh took out knife and suddenly assaulted with it on my stomach and with the same knife assaulted on my back also. After making assault, they ran away. Then, the person with me brought me to Police Station. There was no old enmity between me and Matadin and Ramsingh.

This is my oral report. It has been read over to me. It has been recorded correctly as per my version.

(Sd) Ashok”

2. Dying declaration of the deceased:-

“Statement

K.T.S. Hospital

Shri Ashok alias Chataku son of Rajasingh Chauhan, aged 25 years, by occupation Vegetable Seller, resident of Gaushala Ward, Gondia.

I state on oath as under :-

At about 10.00 o’clock, I along with Anil Bias, Narayan Tondhare, Satish Waghmare and others were standing in Parashar Chowk. At that time, Matadin, Udelal, Shivdayal, Ramsingh and two other persons came there. Matadin talked with me and said to me, “Do not try to be Rangdar (over smart)”. On it I told him, “I am a businessman and I am not showing Rangdari (over smartness). Thereupon, Matadin said, “Maro Sale Ko (Abusive term)”. Immediately, Ramsingh assaulted me with knife on my stomach. Then, all the persons ran away. Thereafter, I took Satish and Narayan with me and came to Police Station and lodged report. Then, I was brought to hospital.

There is an injury caused by knife on my stomach. I have no enmity with anybody I cannot say as to why I was assaulted.”

“Sd/-

Executive M

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1998 Supreme(SC) 753

Important PointCourts should follow Section 421 of Cr.P.C. 1973 properly while making an order for payment of compensation out of fine imposed i.e., the fine be realised even if the convict had undergone imprisonment in de­fault of payment thereof.

Important Point
Courts should follow Section 421 of Cr.P.C. 1973 properly while making an order for payment of compensation out of fine imposed i.e., the fine be realised even if the convict had undergone imprisonment in default of payment thereof.