ROY FERNANDESversusSTATE OF GOA AND ORS.

                     (2012] 1 S.C.R. 477


                     ROY FERNANDES                                   A
                               v.
                STATE OF GOA AND ORS.
            (Criminal Appeal No. 1108 of 2002)
                     FEBRUARY 1, 2012
                                                                     B
   [ASOK KUMAR GANGULY AND T.S. THAKUR, JJ.]

       Penal Code, 1860: ss. 143, 148, 323, 325 and 302 rlw
 s.149 - Death by stabbing - Victim-deceased, President of
 the 'Chapel and others had gone to the Chapel with tools to         C
 put a fence around the Chapel - 'R' raised objection and
 called appellant whereafter appellant and other accused
,reached the spot - Appellant gave blow on the face of
 deceased and as a result the deceased fell down - Accused
 no.2 took out a knife and gave a stab on the thigh of the           D
  deceased which led to profuse bleeding resulting in his death
 - Trial court convicted all the five accused ulss. 143, 148, 323,
  325 and 302 rlw s. 149 - High Court upheld the conviction of
  appellant and accused no.2 while setting aside conviction of
  other three giving them benefit of doubt - On appeal, held:        E
  There was no evidence that the accused persons had come
  to the place of occurrence with the common object of killing
  the deceased - They certainly had come to the spot with a
  view to overawe and prevent the deceased by use of criminal
  force from putting up the fence - Appellant was totally            F
  unarmed - He merely pushed, slapped and boxed those on
  tne spot using his bare hands - There was no evidence to
  show that the appellant had knowledge that in prosecution of
  common object .of preventing the putting up of the fence, the
  members of the assembly or any one of them was likely to           G
   commit the murder of the deceased nor he had knowledge
   that accused no.2 was carrying a knife with him, which he
  .~uld use - The evidence on the contrary was that after
   stabbing the deceased, accused no. 2 had put the knife back

                               477                                   H
     478     SUPREME COURT REPORTS                [2012] 1 S.C.R.

 A in the cover from where he had drawn it - The conduct of the
     members of the assembly especially the appellant also did
     not suggest that they intended to go beyond preventing the
     laying of the fence, leave alone committing a heinous offence
    of murder of a person who had fallen on the ground with a
, B simple blow and who was being escorted away from the spot
    by his companions - Therefore, the courts below fell in error
    in convicting the appellant for murder with the aid of s. 149 -
    However, the conviction of the appellant for offences
    punishable ulss.143, 148, 323 and 325 r/w s.149 was perfectly
 c justified.
        Code of Criminal Procedure, 1973: s. 357 -
   Compensation to the victim of crime - Power of court to award
   compensation - Held: The power to award compensation
   shall be exercised by the Courts having regard to the nature
D of the injury or loss suffered by the victim as also the paying
   capacity of the accused - In the instant case, appellant was
  found guilty for offences punishable ulss. 143, 148, 323 and
   325 r!w s.149 - The incident in question took place as early
  as in the year 1997 - The appellant faced a prolonged trial
E and suffered the trauma of uncertainty arising out of his
  conviction for murder by the courts below- Besides he had
  no criminal antecedents or involvement in any case, before
  or after the incident in question - He is running a hotel in Goa
  and is earning an amount of Rs. 10-12 lakhs per year - He
F is, therefore, directed to deposit a sum of Rs.3, 00, 0001-
  towards compensation to be paid to the widow of the
  deceased, a sum of Rs.1,00,0001- and Rs.50,000 to injured
  victims. ·

G        The prosecution case was that the victim-deceased
    aged 60 years was the President of a chapel. The Chapel
    was near the house of one 'R'. On the fateful day, the
    deceased, his wife PW-1 and PW-4 and her husband PW6
    besides few others went to the chapel with tools in order
    to put a fence around the. chapel. While the pits for cement
H
  ROY FERNANDES v. STATE OF GOA AND ORS.             479


poles required for fencing were being dug in front of the A
house of 'R', the daughter of 'R' raised objection and used
harsh words against those engaged in digging the pits
work. Within minutes, a van arrived on the spot carrying
5 persons including the appellant. The appellant went to
Pw-6 and gave him a fist blow on the face. PW-6 started B
bleeding. The appellant then gave a blow on the face of
the deceased and threw him on the ground. While the
deceased was being helped by his companions to stand,
accused no.2 took out a knife and gave a stab on the left
thigh of the deceased. This led to profuse bleeding. The c
deceased was moved to hospital where he was declared
dead.

    The trial court found all the five accused guilty of
offences punishable under Sections 143, 148, 323, 325
and 302 read with Section 149, IPC and sentenced each        D
one of them to undergo one month's RI under Section
323 and two months' RI for the offence punishable under
Section 143, three months' RI under Section 148 and one
year RI and a fine of Rs.1000/- each under Section 325
besides imprisonment for life and a fine of Rs.2,000/- for   E
offence punishable under Section 302, IPC.

    The High Court upheld the conviction and sentence
awarded to the appellant and accused no.2 while setting
aside the conviction and sentence awarded .to the            F
remaining three accused persons giving them the benefit
of doubt. The special leave petition filed by accused no.2
was dismissed. The instant appeal was filed challenging
the conviction and sentence awarded to the appellant.

     Partly allowing the appeal, the Court                   G

    HELD: 1. The incident in question took place on
account of a sudden dispute arising out of the proposed
fencing of the Chapel property which act was apparently
seen by 'R' as an obstruction to the use of the passage/     H
    480     SUPREME COURT REPORTS              (2012] 1 S.C.R.


A pathway by her for the beneficial use of the property.
   There was evidence to suggest that the pending litigation
   between the villagers on the one hand and 'R' on the
   other hand embittered the relationship between the
   parties including that with the deceased. Putting up of
B fence around the Chapel property thus provided a flash
   point leading to the unfortunate incident in which a
   valuable life was lost for no worthwhile reason. It is clear
   from the deposition of PW1 that after the exchange of hot
   words between the deceased and his companions on the
c one hand and 'A', the daughter of 'R' on the other, the
   latter had made a call to the appellant who had no
   connection with the property in question or the dispute
   except that he was engaged to get married to 'A'. As to
  what transpired over the telephone between the appellant
  and 'R' is not known. PW1 was not a witness to the
0
  telephonic conversation between the two. The sequence
  of events on the fateful day were that on receiving a
  telephonic call from 'R', the appellant rushed to the spot
  alongwith four others to intervene and possibly prevent
  the putting up of the fence by the deceased and his
E companions, on account of the pending dispute between
  the two groups. It is, therefore, reasonable to hold that
  when the appellant received a telephonic call from 'R'
  possibly asking for help to prevent the putting up of the
  fence, the appellant and his companions rushed to the
F spot to do so. In the absence of any evidence it cannot
  be held that the accused persons had come to the place
  of occurrence with the common object of killing the
  deceased. [Para 6] [488-C-H; 489-A-B]

G      2.1. The fact that a large number of accused have
  been acquitted and the remaining who have been
  convicted are less than five cannot vitiate the conviction
  under Section 149 read with the substantive offence if -
  as in this case the court has taken care to find - there are
H other persons who might not have been identified or
  ROY FERNANDES v. STATE OF GOA AND ORS.              481


convicted but were party to the crime and together A
constituted the statutory number. Acquittal of three of the
five accused persons comprising the unlawful assembly
does not in the light of the settled legal position make any
material difference. So long as there were four other
persons with the appellant who had the common object B
of committing an offence the assembly would be unlawful
in nature, acquittal of some of those who were members
 of the unlawful assembly by reason of the benefit of
 doubt given to them notwithstanding. A plain reading of
 Section 147 would show that the provision is in two c
 parts. The first part deals with cases in which an offence
 is committed by any member of the assembly "in
 prosecutibn of the common object" of that assembly. The
 second part deals with cases where the commission of
 a given offence is not by itself the common object of the D
 unlawful assembly but members of such assembly 'knew
 that the same is likely to be committed in prosecution of
 the common object of the assembly'. The commission of
 the offence of murder of the deceased was itself not the
 common object of the unlawful assembly in the case at E
 hand. And yet the assembly was unlawful because from
 the evidence adduced at the trial it is proved that the
 common object of the persons comprising the assembly
 certainly was to either commit a mischief or criminal
 trespass or any other offence within the contemplation
  of clause (3) of Section 141, IPC. They certainly had come F
  to the spot with a view to overawe and prevent the
  deceased by use of criminal force from putting up the
  fence in question. That they actually slapped and boxed
  the witnesses, one of whom lost his two teeth and
  another sustained a fracture only proved that point. G
  [Paras 8, 10, 12-13] [489-G; 490-D-E; 491-8-D; 492-A]

     Khem Karan & Ors. v. The State of U.P. & Anr. 1974 (4)
 SCC 603:1974 (3) SCR 863; Dharam Pal and Ors. v. State
 of UP. 1975 (2)SCC 596: 1976 (1) SCR 587 - relied on.        H
     ...




     482    SUPREME COURT REPORTS              [2012] 1 S.C.R.


 A         2.2. The question whether the appellant as a member
      of the unlawful assembly knew that the murder of the
      deceased was also a likely event in prosecution of the
      object of preventing him from putting up the fence would
      depend upon the circumstances in which the incident
  B had taken place and the conduct of the members of the
      unlawful assembly including the weapons they carried or
      used on the spot. In the instant case, the appellant was
      totally unarmed for even according to the prosecution
      witnesses he had pushed, slapped and boxed those on
' c the spot using his bare hands. Secondly neither the cycle
     chain nor the belt allegedly carried by two other members
     of the unlawful assembly was put to use by them. It is
     common ground that no injuries were caused by use of
     those weapons on the person of the deceased or any one
     of them was carrying a knife. The prosecution case,
  0
     therefore, boils down to the appellant and his four
     companions arriving at the spot, one of them giving a
     knife blow to the deceased in his thigh which cut his
     femoral artery and caused death. The sudden action of
     one of the members of the unlawful assembly did not
  E constitute an act in prosecution of the common object of
    the unlawful assembly• namely preventing of erection of
    the fence in question and the members of the unlawful
    assembly did not know that such an offence was likely
    to be committed by any member of the assembly. The
  F appellant could not in the facts and circumstances of the
    case be convicted under Section 302 read with Section
    149 of the IPC. There was no evidence to show that the
    appellant knew that in prosecution of the common object
    of preventing the putting up of the fence around the
 G chapel the members of the assembly or any one of them
    was likely to commit the murder of the deceased. There
    is indeed no evidence to even show that the appellant
    knew that accused no.2 was carrying a knife with him,
    which he could use. The evidence on the contrary was
 H that after stabbing the deceased, accused no.2 had put
  ROY FERNANDES v. STATE OF GOA AND ORS.              483


the knife back in the cover from where he had drawn it. A
The conduct of the members of the assembly especially
the appellant also did not suggest that they intended to
go beyond preventing the laying of the fence, leave alone
committing a heinous offence of murder of a person who
had fallen on the ground with a simple blow and who was B
 being escorted away from the spot by his companions.
Therefore, the Courts below fell in error in convicting the
 appellant for murder with the aid of Section 149, IPC.
 However, the conviction of the appellant for offences
 punishable under Sections 143, 148, 323 and 325 read c
 with Section 149, IPC is perfectly justified. The evidence
 on record clearly made out a case against the appellant
 under those provisions and the Courts below rightly
 found him guilty on those counts. [Para 14, 16, 17, 23, 24]
 [492-8-C; 493-E-H; 494-A-C; 497-G-H; 498-A-D]
                                                             D
     Lalji and Ors. v. State of U.P.1989 (1) SCC 437: 1989
(1) SCR 130; Dharam Pal and Ors. v. State of U.P. 1975 (2)
SCC 596: 1976(1)SCR 587; Chikkarange Gowda & Ors. v.
State of Mysore AIR 1956 SC 731; Gajanand & Ors. v. State
of Uttar Pradesh AIR 1954 SC 695; Ram Charan Rai v.           E
Emperor AIR 1946 Pat 242; Mizaji and Anr. Vs. State of U.P.
AIR 1959 SC 572: 1959 Suppl. SCR 940; Shambhu Nath
Singh and Ors. v. State of Bihar AIR 1960 SC 725;
Gangadhar Behera and Others v. State of Orissa 2002 (8)
SCC 381: 2002 (3) Suppl. SCR 183; Bishna Alias Bhiswadeb      F
Mahato and Others v. State of West Bengal 2005 (12) SCC
 657: 2005 (4) Suppl. SCR 892 - relied on.

     3. Section 357 of the Code of Criminal Procedure
 embodies the concept of compensating the victim of a G
 crime and empowers the courts to award a suitable
 amount. This power shall be exercised by the Courts
 having regard to the nature of the injury or loss suffered
 by the victim as also the paying capacity of the accused.
 That the provision is wide enough to cover a case like H
    484     SUPREME COURT REPORTS               (2012] 1 S.C.R.


A the instant one where the appellant has been found guilty
     of offences punishable under Sections 323 and 325, IPC.
     The provision for payment of compensation has been in
     existence for a considerable period of time on the statute
     book in this country. Even so, criminal courts have not
B taken significant note of the said provision or exercised
     the power vested in them thereunder. The incident in
     question had taken place as early as in the year 1997. The
  · appellant has faced a prolonged trial and suffered the
    trauma of uncertainty arising out of his conviction by the
c trial court and the High Court in appeal. Besides the
    appellant had no criminal antecedents or involvement in
    any case, before or after the incident in question. He has
    already undergone nearly three months of imprisonment
    out of the sentence awarded to him. He offered to
    compensate the victims of the incident in question
0
    suitably. The appellant is running a hotel in Goa and is
    earning an amount of Rs.10-12 lakhs per year. The
    appellant is directed to deposit a sum of Rs.3,00,000/-
    towards compensation to be paid to the widow of the
    deceased, failing her to his surviving legal heirs. A sum
E of Rs.1,00,000/- is to be similarly deposited towards
    compensation payable to PW-6 besides a sum of
    Rs.50,000/- to be paid to another victim. The deposit shall
    be made within two months from today failing which the
    sentence of one year awarded to the appellant shall stand
F revived and the appellant taken in custody to serve the
    remainder of the period. [Paras 24, 25, 27, 30, 31] [580-C-
    D; 501-D; 502-F-H; 503-A, C-E]
      Hansa v. State of Punjab 1977 (3) SCC 575; Hari Singh
G v. SukhbirSingh & Others 1988 (4) SCC 551: 1988 (2)
  Suppl. SCR 571; ManishJalan v. State of Kamataka (2008)
  8 SCC 225; Rachpal Singh andAnr. v. State of Punjab AIR
   2002 SC 2710: 2002 (6) sec 462 - relied on.

       Book "Criminology" by Prof. Andrew Ashworth of Oxford
H Universitv - referred to.
 ROY FERNANDES v. STATE OF GOA AND ORS.                 485


                    Case Law Reference:                        A

 1974 (3) SCR 863           referred to            Para 8

 1976 (1) SCR 587           referred to            Para 9

 1989 (1) SCR 130            referred to           Para 14
                                                               B
 AIR 1956 SC 731             referred to           Para 18

 AIR 1954 SC 695             referred to           Para 19

 AIR 1946 Pat 242            referred fo           Para 19
                                                               c
 1959 Suppl. SCR 940         referred to           Para 21

 AIR 1960 SC 725             referred to           Para 22

 2002 (3) Suppl. SCR 183 referred to               Para 22

 2005 (4) Suppl. SCR 892 referred to               Para 22     D

  1977 (.3) sec 575
    '·l   \•'
                             referred to           Para 24

  1988 (2) Suppl. SCR 571 referred to              Para 24

  (2008) 8 sec 225           referred to           Para 28     E
  2002 (6) sec 462           referred to           Para 29

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1108 of 2002.
                                                               F
    From the Judgment & Order dated 22.07 .2002 of the High
Court of Judicature of Barnaby at Goa in Criminal Appeal No.
69 of 2000.

    Sidharth Luthra, Jaiveer Shergil, Rook Ray, Shazia
Parveen, Arundhati Katju, Arshdeep Singh, Sanjeeb Panigrahi,   G
Naresh Kumar for the Appellant.

  · A. Subhashini for the Respondents.

      The Judgment of the Court was delivered by
                                                               H
    486      SUPREME COURT REPORTS                [2012] 1 S. C.R.


A         T.S. THAKUR, J. 1. This appeal by special leave arises
  out of an order dated 22nd July 2002 passed by the High Court
  of Bombay at Goa whereby the appeal filed by the appellant
  has been dismissed and the conviction and sentence awarded
  to him by the trial Court for offences punishable under Sections
B 143, 148, 323, 325 and 302 read with Section 149 IPC upheld.

       2. Felix Felicio Monteiro aged about 60 years at the time
  of the incident was the President of a Chapel at Bastora in Goa.
  The Chapel it appears is situated next to the house of one
  Rosalina Monteiro. The chapel and the house owned by
C Rosalina are accessible from the main road by a path about
  20-25 meters in length. A dispute regarding the said path and
  resultant litigation was it appears at the bottom of the incident
  that culminated in the sad and untimely demise of Felix Felicio
  Monteiro.
D
        3. On 11th May, 1997 the deceased Shri Monteiro, his wife
   PW1 Sebastiana Monteiro, PW4 Julie Monteiro, her husband
   PW6 Salish Monteiro besides a few others went to the Chapel
   equipped with the necessary tools and implements in order to
E put up a fence around the property. The prosecution story is that
  while pits for fixing cement poles required for the fencing were
   being dug in front of the house of Rosalina Monteiro, her
  daughter named Antonetta raised an objection and used harsh
  words against those engaged in digging the pits work. A few
F minutes later a Maruti Van arrived on the spot carrying "5
  persons including the appellant herein", who went to Salish
  PW6, and gave him a fist blow on the face and he started
  bleeding. He then gave a blow on the face of the deceased
  Felix Felicio Monteiro and threw him on the ground. While the
G deceased was being helped by his companions to stand up and
  move towards the road, Anthony D'Souza one of the accused
  persons took out a knife and gave a stab on the left thigh of
  the deceased which unfortunately cut one of his arteries that led
  to profuse bleeding. The result was that the injured breathed his
  last even before he could be helped by John, his neighbour to
H
  ROY FERNANDES v. STATE OF GOA AND ORS.                      487
             [T.S. THAKUR, J.]
rush him to the hospital. At the hospital, he was declared A
brought dead. The hospital all the same informed the Mapusa
Police Station. P.I. Subhash Goltekar-PW22 from the police
station recorded the statement of PW1-Sebastiana Monteiro
in which she named the appellant. The police completed the
investigation which included recovery of the weapon of offence B
pursuant to the disclosure made by accused No.2, Anthony
D'Souza and lodged a chargesheet against the accused
persons for offences punishable under Sections 143, 147, 148,
201, 302 and 323 read with Section 149 IPC. The Additional
 Sessions Judge to whom the case was eventually committed c
 charged the accused persons including the appellant herein
with the commission of offences punishable under Sections
 143, 148, 302 read with Section 149 IPC and Sections 323
 and 326 read with Section 149 IPC and Section 201 read with
 Section 149 IPC. At the trial the prosecution examined as many D
 as 22 witnesses to prove its case against the accused persons.
 The accused persons did not lead any evidence in defence.

     4. The Trial Court eventually found all the five accused guilty
of offences punishable under Sections 143, 148, 323, 325 and
302 read with Section 149 IPC and sentenced each one of them           E
to undergo one month's RI under Section 323 and two months'
RI for the offence punishable under Section 143, three months'
RI under Section 148 and one year RI and a fine of Rs.1000/-
each under Section 325 besides imprisonment for life and a
fine of Rs.2,000/- for offence punishable under Section 302 of         F
the IPC.

     5. Aggrieved by the judgment and order of the Trial Court
the accused persons preferred Criminal Appeal Nos. 69/2000
and 77/2000 before the High Court of Bombay at Goa. By the             G
impugned judgment in this appeal the High Court upheld the
conviction and sentence awarded to the appellant, Roy
Fernandes and Anthony D'Souza while setting aside the
conviction and sentence awarded to the remaining three
accused persons giving them the benefit of doubt. It is                H
     488     SUPREME COURT REPORTS                  [2012] 1 S.C.R.


A noteworthy that against the judgment of the High Court Anthony
  D'Souza who had actually stabbed the deceased, preferred a
  special leave petition which was dismissed by this Court by
  order dated 15th April, 2011. To that extent the matter stands
  concluded. The present appeal is, in that view, limited to the
s question whether the conviction and sentence awarded to the
  appellant Roy Fernandes for the offences with which he stood
  charged, is in the facts and circumstances of the case, legally
  sustainable.

         6. We have heard learned counsel of the parties at
C considerable length. It is common ground that the incident in
   question had taken place on account of a sudden dispute
   arising out of the proposed fencing of the Chapel property which
  .act was apparently seen by Rosalina Monteiro as an obstruction
   IQ the use of the passage/pathway by her for the beneficial use
D of the property. There is evidence on record to suggest that the
   pending litigation between the villagers on the one hand and
   Rosalina on the other hand embittered the relationship between
   the parties including that with the deceased. Putting up of fence
   around the Chapel property thus provided a flash point leading
E to the unfortunate incident in which a valuable life was lost for
   no worthwhile reason. From the deposition of PW1 Sebastiana
   Monteiro, it is further clear that after the exchange of hot words
   between the deceased and his companions on the one hand
   and Antonetta, daughter of Rosalina on the other, the latter had
F made a call to the appellant who had no connection with the
   property in question or the dispute except that he was engaged
  to get married to Antonetta. As to what transpired over the
  telephone between the appellant and Rosalina is not known.
   Ms. Subhashini, learned counsel for the State of Goa fairly
G conceded that PW1 Sebastiana Monteiro was not a witness
  to the telephonic conversation between the two. Looking to the
  sequence of events that unfolded on the fateful day what
  appears to have happened is that on receiving a telephonic call
  from Rosalina, the appellant rushed to the spot alongwith four
H others to intervene and possibly prevent the putting up of the
  ROY FERNANDES v. STATE OF GOA AND ORS.                   489
             [T.S. THAKUR, J.]
fence by the deceased and his companions, on account of the A
pending dispute between the two groups. It is, therefore,
reasonable to hold that when the appellant received a telephonic
call from Rosalina possibly asking for help to prevent the putting
 up of the fence, the appellant and his companions rushed to
the spot to do so. In the absence of any evidence leave alone B
 credible evidence it is not possible for us to hold that the
 accused persons had come to the place of occurrence with the
 common object of killing the deceased Felix Felicio Monteiro.

     7. That, however, is not the end of the matter. The next and
perhaps an equally important question would be whether the C
appellant and his companions at all constituted an unlawful
assembly and if they did whether murder of the deceased Felix
Felicio Monteiro by Anthony D'Souza who was one of the
members of the unlawful assembly would in the facts and
circumstances of the case attract the provisions of Section 149 D
so as to make the appellant herein also responsible for the act.

     8. Mr. Luthra made a feeble attempt to argue that the
acquittal of the other three accused persons should be sufficient
to negative the theory of there being an unlawful assembly of       E
which the appellant was a member. He did not, however, pursue
that argument for long and, in our opinion, rightly so because
the legal position is fairly well-settled by the decision of this
Court in Khem Karan & Ors. Vs. The State of U.P. & Anr.
[1974 (4) SCC 603] where this Court observed:                       F

     "6. xxxxxxxxx the fact that a large number of accused have
     been acquitted and the remaining who have been
     convicted are less than five cannot vitiate the conviction
     under Section 149 read with the substantive offence if -
     as in this case the court has taken care to find - there are   G
     other persons who might not have been identified or
     convicted but were party to the crime and together
     constituted the statutory number."

                                                                    H
    490     SUPREME COURT REPORTS                   [2012] 1 S.C.R.


A       9. To the same effect is the decision of this Court in
    Dharam Pal and Ors. Vs. State of U.P. [1975 (2) SCC 596]
    where this Court obsarved:

         "10. xxxxxxxxx If, for example, only five known persons are
         alleged to have participated in an attack but the Courts find
B
        that two of them were falsely implicated, it would be quite
        natural and logical to infer or presume that the participants
        were less than five in number. On the other hand, if the
        Court holds that the assailants were actually five in number,
        but there could be a doubt as to the identity of two of the
c       alleged assailants, and, therefore, acquits two of them, the
        others will not get the benefit of doubt about the identity of
        the two accused so long as there is a firm finding based
        on good evidence and sound reasoning that the
        participants were five or more in number."
D
        10. Acquittal of three of the five accused persons
  comprising the unlawful assembly does not in the light of the
  settled legal position make any material difference. So long as
  there were four other persons with the appellant who had the
E common object of committing an offence the assembly would
  be unlawful in nature acquittal of some of those who were
  members of the unlawful assembly by reason of the benefit of
  doubt given to them notwithstanding.

       11. That leaves us with the question whether the
F commission of murder by a member of an unlawful assembly
  that does not have murder as its common object would attract
  the provisions of Section 149 IPC. Section 149 IPC reads:

       "149. Every member of unlawful assembly guilty of offence
G      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,
H      at the time of the committing of that offence, is a member
  ROY FERNANDES v. STATE OF GOA AND ORS.                     491
             [T.S. THAKUR, J.]
    of the same assembly, is guilty of that offence."                 A

      12. A plain reading of the above would show that the
provision is in two parts. The first part deals with cases in which
an offence is committed by any member of the assembly "in
prosecution of the common object" of that assembly. The
                                                                    8
second part deals with cases where the commission of a given
offence is not by itself the common object of the unlawful
assembly but members of such assembly 'knew that the same
is likely to be committed in prosecution of the common object
of the assembly'. As noticed above, the commission of the
offence of murder of Felix Felicio Monteiro was itself not the C
common object of the unlawful assembly in the case at hand.
And yet the assembly was unlawful because from the evidence
 adduced at the trial it is proved that the common object of the
 persons comprising the assembly certainly was to either
 commit a mischief or criminal trespass or any other offence D
 within the contemplation of clause (3) of Section 141 of the IPC,
 which may to the extent the same is relevant for the present be
 extracted at this stage:

     "Section 141 : Unlawful Assembly:                                E
     An assembly of five or more persons is designated an
     "unlawful assembly", if the common object of the persons
     composing that assembly is-

             First.                                                   F

             Second.- XJOoooooooooooooocoocl()()()(

             "Third-To commit any mischief or criminal trespass,
             or other offence;"
                                                                      G
       13. From the evidence on record, we are inclined to hold
 that even when commission of murder was not the common
 object of the accused persons, they certainly had come to the
 spot with a view to overawe and prevent the deceased by use
 of criminal force from putting up the fence in question. That they   H
    492      SUPREME COURT REPORTS                  [2012] 1 S.C.R.


A actually slapped and boxed the witnesses, one of whom lost
  his two teeth and another sustained a fracture only proves that
  point.

        14. What then remains to be considered is whether the
  appellant as a member of the unlawful assembly knew that the
8
  murder of the deceased was also a likely event in prosecution
  of the object of preventing him from putting up the fence. The
  answer to that question will depend upon the circumstances in
  which the incident had taken place and the conduct of the
  members of the unlawful assembly including the weapons they
C carried or used on the spot. It was so stated by this Court in
  Lalji and Ors. Vs. State of U.P. [1989 (1) sec 437] in the
  following words:

          ·a.xxxxxxxxxxxxxxx
D
        Common object of the unlawful assembly can be gathered
        from the nature of the assembly, arms used by them and
        the behaviour of the assembly at or before scene of
        occurrence. It is an inference to be deduced from the facts
        and circumstances of each case."
E
         15. The Court elaborated the above proposition in Dharam ·
    Pal and Ors. Vs. State of U.P. [1975 (2) SCC 596] as :

        "11. Even if the number of assailants could have been less
F       than five in the instant case (which, we think, on the facts
        stated above, was really not possible), we think that the
        fact that the attacking party was clearly shown to have
        waited for the buggi to reach near the field of Daryao in
        the early hours of June 7, 1967, shows pre-planning. Some
G
        of the assailants had sharp-edged weapons. They were
        obviously lying in wait for the buggi to arrive. They
        surrounded and attacked the occupants shouting that the
        occupants will be killed. We do not think that more
        convincing evidence of a pre-concert was necessary.
        Therefore, if we had thought it necessary, we would not
H
 ROY FERNANDES v. STATE OF GOA AND ORS.                      493
            [TS. THAKUR, J.]
   have hesitated to apply Section 34 IPC also to this case. A
   The principle of vicarious liability does not depend upon
   the necessity to convict a required number of persons. It
   depends upon proof of facts, beyond reasonable doubt,
   which makes such a principle applicable. (See: Yeshwant
   v. State of Maharashtra; and Sukh Ram v. State of U.P.). B
   The most general and basic rule, on a question such as
   the one we are considering, is that there is no yniform,
   inflexible, or invariable rule applicable for arriving at what
    is really an inference from the totality of facts and
    circumstances which varies from case to case. We have c
    to examine"the effect of findings given in each case: on this
    totality. If is rarely exactly identical with that in another case.
    Other rules are really subsidiary to this basic verity and
    depend for their correct application on the peculiar facts
    and circumstances in the context of which they are D
    enunciated."

      16. Coming then to the facts of the present case, the first
and foremost of the n6table circumstances is that the appellant
was totally unarmed for even according to the prosecution
witnesses he had pushed, slapped and boxed those on the E
spot using his bare hands. The second and equally notable
circumstance is that neither the cycle chain nor the belt allegedly
carried by two other members of the unlawful assembly was put
to use by them. Mr. Luthra argued that the prosecution had
failed to prove that the assembly was armed with a chain and F
a belt for the seizure witnesses had not supported the recovery
of the said articles from the accused. Even if we were to accept
the prosecution case that the two of the members of the unlawful
assembly were armed as alleged, the non-use of the same is
a relevant circumstance. It is cqmmon ground that no injuries G
were caused by use of those weapons on the person of the
deceased or any one of them was carrying a knife. The
prosecution case, therefore, boils down to the appellant and his
 four companlo11s arriving at the spot, one of them giving a knife
 blow to the deceased in his thigh which cut his femoral artery H
     494     SUPREME COURT REPORTS                     (2012] 1 S.C.R.

  A and caused death. The question is whether the sudden action
     of one of the members of the unlawful assembly constitutes an
     act in prosecution of the common object of the unlawful
   · assembly namely preventing of erection of the fence in question
     and whether the members of the unlawful assembly knew th< t
. B such an offence was likely to be committed by any member of
     the assembly. Our answer is in the negative.

        17. This Court has in a long line of decisions examined
   the scope of Section 149 of the Indian Penal Code. We remain
 C content by referring to some only of those decisions to support
   our conclusion that the appellant could not in the facts and
   circumstances of the case at hand be convicted under Section
   302 read with Section 149 of the IPC.

       18. In Chikkarange Gowda & Ors. Vs. State of Mysore
D [AIR 1956 SC 731] this Court was dealing with a case where
  the common object of the unlawful assembly simply was to
  chastise the deceased. The deceased was, however, killed by
  a fatal injury caused by certain member of the unlawful
  assembly. The court below convicted the other member of the
E unlawful assembly under Section 302 read with Section 149
  IPC. Reversing the conviction, this Court held:

        "9. It is quite clear to us that on the finding of the High Court
        with regard to the common object of the unlawful assembly,
        the conviction of the appellants for an offence under
F       Section 302 read with Section 149 Indian Penal Code
        cannot be sustained. The first essential element of Section
        149 is the commission of an offence by any member of
        an unlawful assembly; the second essential part is that the
        offence must be committed in prosecution of the common
G       object of the unlawful assembly, or must be such as the
        members of that assembly knew to be likely to be
        committed in prosecution of the common object.

       . In the case before us, the learned Judges of the High Court
H        held that the common object of the unlawful assembly was
 ROY FERNANDES v. STATE \OF GOA AND ORS.                   495
            [T.S. THAKUR, J.]

   merely to administer a chastisement to Pulte Gowda. The         A
   learned Judges of the High Court did not hold that though
   the common object was to chastise Putte Gowda, the
   members of the unlawful assembly knew that Pulte Gowda
   was likely to be killed in prosecution of that common object.
   That being the position, the conviction under Section 302       B
   read with Section 149 Indian Penal Code was not justified
   in law."

     19. In Gajanand & Ors. Vs. State of Uttar Pradesh [AIR
1954 SC 695], this Court approved the following passage from       C
the decision of the Patna High Court in Ram Charan Rai Vs.
Emperor [AIR 1946 Pat 242]:

    "Under Section 149 the liability of the other members for
    the offence committed during the continuance of the
    occurrence rests upon the fact whether the other members       D
    knew before hand that the offence actually committed was
    likely to be committed in prosecution of the common
    object. Such knowledge may reasonably be collected from
    the nature of the assembly, arms or behavior, at or before
    the scene of action. If such knowledge may not reasonably      E
    be attributed to the other members of the assembly then
    their liability for the offence committed during the
    occurrence does not arise".

     20. This Court then reiterated the legal position as under:
                                                                   F
     "The question is whether such knowledge can be attributed
     to the appellants who were themselves not armed with
     sharp edged weapons. The evidence on this point is
     completely lacking. The appellants had only latliis which
     may possibly account for Injuries 2 and 3 on Sukkt:u's left   G
     arm and left hand but they cannot be held liable for murder
     by invoking the aid of Section 149 IPC. According to the
     evidence only two persons were armed with deadly
     weapons. Both of them were acquitted and Sosa, who is
      alleged to have had a spear, is absconding. We are not           H
    496       SUPREME COURT REPORTS                (2012] 1 S.C.R.


A         prepared therefore to ascribe any knowledge of the
          existence of deadly weapons to the appellants, much less
          that they would be used in order to cause death."

        21. In Mizaji and Anr. Vs. State of UP. [AIR 1959 SC 572]
8  this Court was dealing with a case where five persons armed
  with lethal weapons had gone with the common object of getting
  forcible possession of the land which was in the cultivating
  possession of the deceased. Facing resistance from the
  person in possession, one of the members of the assembly at
C the exhortation of the other fired and killed the deceased. This
  Court held that the conduct of the members of the unlawful
  assembly was such as showed that they were determined to
  take forcible possession at any cost. Section 149 of IPC was,
  therE)fore, attracted and the conviction of the members of the
  assembly for murder legally justified. This Court analysed
D Section 149 in the following words:

        "6. This section has been the subject matter of
        interpretation in the various High Court of India, but every
        case has to be decided on its own facts. The first part of
E       the section means that the offence committed in
        prosecution of the common object must be one which is
        committed with a view to accomplish the common object.
        It is not necessary that there should be a preconcert in the
       sense of a meeting of the members of the unlawful
F      assembly as to the common object; it is enough if it is
       adopted by all the members and is shared by all of them.
       In order that the case may fall under the first part the
       offence committed must be connected immediately with
       the common object of the unlawful assembly of which the
G      accused were members. Even if the offence committed is
       not in direct prosecution of the common object of the
       assembly, it may yet fall under section 149 if it can be held
       that the offence was such as the members knew was likely
       to be committed. The expression 'know' does not mean a
       mere possibility, such as might or might not happen. For
H
 ROY FERNANDES v. STATE OF GOA AND ORS.                      497
            [TS. THAKUR, J.)

    instance, it is a matter of common knowledge that when A
    in a village a body of heavily armed men set out to take a
    woman by force, someone is likely to be killed and all the
    members of the unlawful assembly must be aware of that
    likelihood and would be guilty under the second part of
     section 149. Similarly, if a body of persons go armed to B
     take forcible possession of the land, it would be equally
     right to say that they have the knowledge that murder is
     likely to be committed if the circumstances as to the
     weapons carried and other conduct of the members of the
     unlawful assembly clearly point to such knowledge on the c
     part of them all."

     22. In Shambhu Nath Singh and Ors. Vs. State of Bihar
[AIR 1960 SC 725), this Court held that members of an unlawful
assembly may have a community of object upto a certain point
beyond which they may differ in their objects and the knowledge       D
possessed by each member of what is likely to be committed
in prosecution of their common object may vary not only
 according to the information at his command but also according
to the extent to which he shares the community of object. As a
 consequence, the effect of Section 149 of the Indian Penal           E
 Code may be different on different members of the same
 unlawful assembly. Decisions of this Court Gangadhar Behera
 and Others Vs. State of Orissa [2002 (8) SCC 381) and Bishna
 Alias Bhiswadeb Mahato and Others Vs. State of West Bengal
 [2005 (12) SCC 657] similarly explain and reiterate the legal        F
 position on the subject.

     23. In the case at hand, there is, in our opinion, no evidence
to show that the appellant knew that in prosecution of the
common object of preventing the putting up of the fence around        G
the chapel the members of the assembly or any one of them
was likely to commit the murder of the deceased. There is
indeed no evidence to even show that the appellant knew that
Anthony D'Souza was carrying a knife with him, which.he could
 use. The evidence on the contrary is that after stabbing the         H
     498     SUPREME COURT REPORTS                  (2012] 1 S.C.R.

 A deceased Anthony D'Souza had put the knife back in the cover
    from where he had drawn it. The conduct of the members of
    the assembly especially the appellant also does not suggest
   that they intended to go beyond preventing the laying of the
   fence, leave alone committing a heinous offence of murder of
 B a person who had fallen to the ground with a simple blow and
   who was being escorted away from the spot by his
   companions. We have, therefore, no hesitation in holding that
   the Courts below fell in error in convicting the appellant for
   murder with the aid of Section 149 of the IPC.
 c    · 24. Having said that, we have no manner of doubt that the
   conviction of the appellant for offences punishable under
   Sections 143, 148, 323 and 325 read with Section 149 of the
   IPC is perfectly justified. The evidence on record clearly makes
   out a case against the appellant under those provisions and
D the Courts below have rightly found him guilty on those counts.
   In fairness to Mr. Luthra, we must mention that even he did not
   assail the conviction of the appellant under those provisions.
   What was argued by the learned counsel is that this Court could
   reduce the sentence to the period already undergone by the
E appellant having regard to the fact that the incident in question
   had taken place nearly 15 years back and the appellant had
   not only suffered the trauma of a prolonged trial and uncertainty
   but his life had also suffered a setback, in as much Antonetta
   had divorced him. Mr. Luthra submitted that the appellant was
F a first offender and being a middle aged man, could be spared
  the ignominy and hardship of a jail term at this stage of his life
  when he was ready to abide by any directions of this Court
  regarding compensation to the victims of the incident. Support
  for his submissions was drawn by Mr. Luthra from the decisions
G of this Court in Hansa Vs. State of Punjab (1977 (3) SCC 575]
  and Hari Singh Vs. Sukhbir Singh & Others (1988 (4) SCC
  551]. In Hansa's case (supra), the accused had been convicted
  for an offence under Section 325 and sentenced to undergo
  one year rigorous imprisonment. The High Court had, however,
H given the accused the benefit of probation of offenders Act, and
  ROY FERNANDES v. STATE OF GOA AND ORS.                      499
             [T.S. THAKUR, J.]
let him off on his giving a bond for good conduct for a year. This A
Court held that the power vested in the Court had ,been correctly
exercised. Even in Hari Singh's case (supra), the court granted
a similar benefit to a convict under Section 325 who had been
sentenced to undergo two years rigorous imprisonment. The
 Court in addition invoked its power under Section 357 of the B
 Cr.P.C. to award compensation to the victim, and determined
 the amount payable having regard to the nature of the injury
 inflicted and the paying capacity of the appellant. This Court
 said:

     "10. Sub-section (1) of Section 357 provides power to C
     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 D
      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 accused. It may be noted that this power E
       of courts to award compensation is not ancillary to other
      sentences but it is in 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 F
       reconciling the victim with the offender. It is, to some extent,
       a constructive approach to crimes. It is indeed 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.                 G

      11. The payment by way of compensation must, however,
      be reasonable. What is reasonable, may depend upon the
      facts and circumstances of each case. The quantum of
      compensation may be determined by taking into account            H
     500       SUPREME COURT REPORTS                  [2012] 1 S.C.R.


 A         the nature of crime, the justness of claim by the victim and
           the ability of accused to pay. If there are more than one
           accused they may be asked to pay in equal terms unless
           their capacity to pay varies considerably. The payment
           may also vary depending upon the acts of each accused.
 B         Reasonable period for payment of compensation, if
           necessary by instalments, may also be given. The court
           may enforce the order by imposing sentence in default."

          25. Section 357 of the Code of Criminal Procedure
 C embodies the concept of compensating the victim of a crime
     and empowers the courts to award a suitable amount. This
     power, it goes without saying, shall be exercised by the Courts
     having regard to the nature of the injury or loss suffered by the
    victim as also the paying capacity of the accused. That the
    provision is wide enough to cover a case like the present where
D the appellant has been found guilty of offences punishable under
    Sections 323 & 325 of the IPC has not been disputed before
    us. Indeed Mr. Luthra relied upon the provision and beseeched
    this Court to invoke the power to do complete justice short of
    sending the appellant back to the prison. Mrs. Subhashini also
E in principle did not have any quarrel with the proposition that
   the power was available and can be exercised, though
   according to her, the present being a gross case of unprovoked
   violence against law abiding citizens the exercise of the power
   to compensate the victims ought not to save accused from
F suffering a deterrent punishment warranted under law.

      26. Prof. Andrew Ashworth of Oxford University Centre for
  Criminological Research has in the handbook of Criminology
  authored by him referred to what are called "Restorative and
G Reparative Theories" of punishment. The following passage
  from the book is, in this regard, apposite:

        "Restorative and Reparative Theories

        These are not theories of punishment, rather, their
H       argument is that sentences should move away from
 ROY FERNANDES v. STATE OF GOA AND ORS.                   501
                  [T.S. THAKUR, J.]
   punishment of the offender towards restitution and· A
   reparation, aimed at restoring the harm done and
   calculated accordingly. Restorative theories are therefore
   victim-centred, although in some versions they encompass
   the notion of reparation to the community for the effective
   crime. They envisage less resort to custody, with onerous B
   community based sanctions requiring offenders to work in
   order to compensation victims and also contemplating
   support and counselling for offenders to regenerate them
    into the community. Such theories therefore tend to act on
    a behavioural premises similar to rehabilitation, but their    c
    political premises is that compensation for victims should
    be recognised as more important than notions of just
    punishment on behalf of the State"

     27. The provision for payment of compensation has been
in existence for a considerable period of time on the statute      D
book in this country. Even so, criminal courts have not, it
appears, taken significant note of the said provision or
exercised the power vested in them thereunder. The Law
Commission in its 42nd Report at para 3.17 refers to this
 regrettable omission in the following words:                      E

    "We have a fairly comprehensive provision for payment of
    compensation to the injured party under Section 545 of the
    Criminal Procedure Code. It is regrettable that our courts
    do not exercise their statutory powers under this Seqtion      F
    as freely and liberally as could be desired. The Section
    has, no doubt, its limitations. Its application depends,· in
    the first instance, on whether the Court considers a
    substantial fine proper punishment for the offence. In the
    most serious cases, the Court may think that a heavy fine      G
     in addition to imprisonment for a long terms is not
    justifiable, especially when the public prosecutor ignores
     the plight of the victim of the offence and does not press
     for compensation on his behalf."
                                                                   H
     502     SUPREME COURT REPORTS                 (2012] 1 S.C.R.


 A        28. In Manish Jalan Vs. State of Karnataka (2008) 8 SCC
     225, even this Court felt that the provision regarding award of
     compensation to the victims of crimes had not been made use
     by the Courts as often as it ought to be. This Court observed:

         "Though a comprehensive provision enabling the Court to
 8
         direct payment of compensation has been in existence all
         through but the experience has shown that the provision
         has really attracted the attention of the Courts. Time and
         again the Courts have been reminded that the provision
         is aimed at serving the social purpose and should be
c        exercised liberally yet the results are not heartening."

        29. In the above case the appellant had been convicted
  under Sections 279 and 304A of the IPC. The substantive
  sentence of imprisonment was in that case reduced by this
D Court to the period already undergone with payment of fine and
  a compensation of an amount of rupees one lakh to the mother
  of the victim. Reference may also be made to the decision of
  this Court in Rachpal Singh and Anr. Vs. State of Punjab AIR
  2002 SC 2710, where this Court emphasised the need to
E assess and award compensation by the accused to the gravity
  of the offence, needs of the victim's family as also the paying
  capacity of the accused.

        30. Coming to the case at hand we need to keep in mind
F that the incident iri question had taken place as early as in the
  year 1997. The appellant has faced a prolonged trial and
  suffered the trauma of uncertainty arising out of his conviction
  by the Trial Court and the High Court in appeal. Besides the
  appellant have had no criminal antecedents or involvement in
  any case, before or after the incident in question. He has already
G undergone nearly three months of imprisonment out of the
  sentence awarded to him. He has, in the abov~ backdrop,
  offered to compensate the victims of the incident in question
  suitably. Mr. Luthra submitted on instructions that the appellant .
  is running a hotel in Goa and is earning an amount of Rs.10-
H
  ROY FERNANDES v. STATE OF GOA AND ORS.                  503
             [T.S. THAKUR, J.]
12 lakhs per year from the same implying thereby that he is in   A
a position to deposit the amount of compensation ordered by
this Court. In the totality of the above circumstances, we are
inclined to interfere in so far as the quantum of sentence
awarded under Section 325 of the IPC is concerned.
                                                                 B
     31. In the result, we allow this appeal in part, set aside the
conviction and sentence awarded to the appellant under Section
302 read with Section 149 of the IPC and acquit the appellant
of that charge. The conviction of the appellant for offences
punishable under Sections 323 and 325 of the IPC is affirmed
and the appel~nt is sentenced to the period of imprisonment C
already undergone by him. We further direct that the appellant
shall deposit a sum of Rs.3,00,000/- towards compensation to
be paid to the widow of the deceased Shri Felix Felicio
Monteiro, failing her to his surviving legal heirs. A sum of
 Rs.1,00,000/- shall be similarly deposited towards D
 compensation payable to Shri Salish Monteiro, besides a sum
 of Rs.50,000/- to be paid to Ms. Conceicao Monteiro failing to
 their legal representatives. The deposit shall be made within
 two months from today failing which the sentence of one year
 awarded to the appellant shall stand revived and the appellant E
 taken in custody to serve the remainder of the period. The
 appeal is disposed of with the above modification and
 directions.

'D.G.                                   Appeal partly allowed.       F