# SURESH &ANR v. STATE OF HARYANA - **Citation:** [2014] 13 S.C.R. 760 - **Court:** Supreme Court of India - **Decided:** 2014-11-28 - **Case number:** Criminal Appeal No. 420 of 2012 - **Bench:** V. Gopala Gowda, Adarsh Kumar Goel - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/suresh-anr-v-state-of-haryana-29656 - **Pages:** 36 ## Headnote Penal Code, 1860- ss. 302134, 364-A, 201and120-8 C - Kidnapping and murder of two persons - Conviction by courts below - On appeal, held: Conviction justified - Recovery of dead bodies of the deceased and their personal belongings at the instance of the accused and the failure to explain the fact within the exclusive knowledge of the accused o is an additional circumstance against them - Evidence Act, 1872-s. 106. Code of Criminal Procedure, 1973 - s. 357 A - Interim compensation - Grant of - Held: ft is duty of the Court to grant interim compensation to victim either on application or E suo motu - Such duty continues at every stage of the case - In the present case, denial of interim compensation by High Court was not justified - State directed to pay Rs. 10 lakhs as interim compensation to the family of the deceased. F Disposing of the appeal, the Court HELD: 1. In the present case, Section 106 of the Evidence Act is clearly attracted which requires the accuse·d to explain the facts in their exclusive knowledge. No doubt, the burden of proof is on the G prosecution and Section 106 i.s not meant to relieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within H the knowledge of the accused. Recovery of dead bodies 760 SURESH v. STATE OF HARYANA 761 from covered gutters and personal belongings of the A deceased from other places disclosed by the accused stood fully established. It casts a duty on the accused as to how they alone had the information leading to recoveries which was admissible under Section 27 of the Evidence Act. Failure of the accused to give an B explanation or giving offalse explanation is an additional circumstance against the accused. Therefore, the conviction and sentence of the appellants cannot be interfered with. [Paras 8 and 9][766-F-H; 767-B-C] State of Rajasthan v. Jaggu Ram 2008 (12) SCC 51 - relied on. 2.1 The object and purpose of s.357 A Cr.P.C. is to enable the Court to direct the State to pay compensation c to the victim where the compensation under Section 357 D was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated. Even after expiry of 5 years since the enactement of Section 357 A, the award of compensation has not become a rule and interim compensation,· which E is very important, is not being granted by the Courts. The upper limit of compensation fixed by some of the States is arbitrarily low and is not in keeping with the object of the legislation. [Paras 12 and 13][767-G-H; F 793-G-H; 794-A] 2.2 It is the duty of the Courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime G needs immediate financial relief. On being satisfied on an application or on its _own motion, the Court ought to direct grant of interim compensation, subject to final compensation being determined later. Such duty continues at every stage of a criminal case where · H 762 SUPREME COURT REPORTS [2014] 13 S.C.R. A compensation ought to be given and has not been given, irrespective of the application by the victim. At the stage of final hearing it is obligatory on the part of the Court to advert to the provision and record a finding whether a case for grant of compensation has been made out and, B if so, who is entitled to compensation and how much. Award of such compensation can be interim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances C of an individual case. [Para 14][794-B-E] 2.3 There is also need to consider upward revision in the scale for compensation and pending such consideration to adopt the scale notified by the State of D Kerala in its scheme, unless the scale award ## Text _Characters 0–39,953 of 61,182. This is a partial read: ask again with offset=39953 for what follows._ A B [2014] 13 S.C.R. 760 SURESH &ANR. v. STATE OF HARYANA (Criminal Appeal No. 420 of 2012) NOVEMBER 28, 2014 [V. GOPALA GOWDA AND ADARSH KUMAR GOEL, JJ.) Penal Code, 1860- ss. 302134, 364-A, 201and120-8 C - Kidnapping and murder of two persons - Conviction by courts below - On appeal, held: Conviction justified - Recovery of dead bodies of the deceased and their personal belongings at the instance of the accused and the failure to explain the fact within the exclusive knowledge of the accused o is an additional circumstance against them - Evidence Act, 1872-s. 106. Code of Criminal Procedure, 1973 - s. 357 A - Interim compensation - Grant of - Held: ft is duty of the Court to grant interim compensation to victim either on application or E suo motu - Such duty continues at every stage of the case - In the present case, denial of interim compensation by High Court was not justified - State directed to pay Rs. 10 lakhs as interim compensation to the family of the deceased. F Disposing of the appeal, the Court HELD: 1. In the present case, Section 106 of the Evidence Act is clearly attracted which requires the accuse·d to explain the facts in their exclusive knowledge. No doubt, the burden of proof is on the G prosecution and Section 106 i.s not meant to relieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within H the knowledge of the accused. Recovery of dead bodies 760 SURESH v. STATE OF HARYANA 761 from covered gutters and personal belongings of the A deceased from other places disclosed by the accused stood fully established. It casts a duty on the accused as to how they alone had the information leading to recoveries which was admissible under Section 27 of the Evidence Act. Failure of the accused to give an B explanation or giving offalse explanation is an additional circumstance against the accused. Therefore, the conviction and sentence of the appellants cannot be interfered with. [Paras 8 and 9][766-F-H; 767-B-C] State of Rajasthan v. Jaggu Ram 2008 (12) SCC 51 - relied on. 2.1 The object and purpose of s.357 A Cr.P.C. is to enable the Court to direct the State to pay compensation c to the victim where the compensation under Section 357 D was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated. Even after expiry of 5 years since the enactement of Section 357 A, the award of compensation has not become a rule and interim compensation,· which E is very important, is not being granted by the Courts. The upper limit of compensation fixed by some of the States is arbitrarily low and is not in keeping with the object of the legislation. [Paras 12 and 13][767-G-H; F 793-G-H; 794-A] 2.2 It is the duty of the Courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime G needs immediate financial relief. On being satisfied on an application or on its _own motion, the Court ought to direct grant of interim compensation, subject to final compensation being determined later. Such duty continues at every stage of a criminal case where · H 762 SUPREME COURT REPORTS [2014] 13 S.C.R. A compensation ought to be given and has not been given, irrespective of the application by the victim. At the stage of final hearing it is obligatory on the part of the Court to advert to the provision and record a finding whether a case for grant of compensation has been made out and, B if so, who is entitled to compensation and how much. Award of such compensation can be interim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances C of an individual case. [Para 14][794-B-E] 2.3 There is also need to consider upward revision in the scale for compensation and pending such consideration to adopt the scale notified by the State of D Kerala in its scheme, unless the scale awarded by any other State or Union Territory is higher. The States of Andhra Pradesh, Madhya Pradesh, Meghalaya and Telangana are directed to notify their schemes. It is also directed that a copy of this judgment be forwarded to E National Judicial Academy so that all judicial officers in the country can be imparted requisite training to make the provisJon operative and meaningful.[Para 14] (794-E-G] F 2.4 In the present case, the petition for compensation to the family members of deceased has been dismissed by the High Court without any reason. In fact even without such petition, the High Court ought to have awarded compensation. Thus, the State is liable G to pay compensation to the family of the deceased u/s. · 357-A Cr.P.C. The interim compensation payable for the two deaths to be rupees ten lacs, without prejudice to any other rights or remedies of the victim family in any other proceedings. The same would be payable by the H State Legal Services Authority. [Para 15](795-A-C] SU RESH v. STATE OF HARYANA 763 Ankush Shivaji Gaikwad v. State of Maharashtra A 2013 (8) SCR 863: (2013) 6 SCC 770; Re: Indian Woman says gang-raped on orders of Vi/age Court pulished on Business and Financial News 2014 (4) scR 264 : (2014) 4 sec 1.86; Mohammad. Haroon v. Union of India (2014) 5 B SCC 252; Laxmi v. Union of India (2014) 4 SCC 427; Abdul Rashid v. State of Odisha & Ors. (2014) 1 ILR-CUT-202 - referred to. Case Law Reference: (2008) 12 sec 51 relied on. Para 8 . 2013 (8) SCR 863 referred to. Para 12 2014 (4) SCR 264 referred to. Para 12 (2014) 5 sec 252 referred to. Para 12 (2014) 4 sec 427 referred to. Para 12 (2014) 1 ILR-CUT-202 referred to. Para 12 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 420 of 2012. From the Judgment and Order dated 17.09.2009 of the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 182-DB of 2004 c D E F R. S. Suri, Sr. Adv., Ms. Shabana, Ms. Shama Praveen, Harinder Mohan Singh, Advs. for the Appellants. Roopansh Purohit, Dr. Monika Gusain, Ramesh Shokeen, Advs. for the Respondent. The Judgment of the Court was delivered by ADARSH KUMAR GOEL J. 1. This appeal has been preferred against conviction and sentence of the appellants under Sections 302 read with Sections 34, 364-A, 201 and 120-B of the Indian Penal Code. G H 764 SUPREME COURT REPORTS [2014] 13 S.C.R. A 2. Case of the prosecution is that on 181h December, 2000, the deceased Devender Chopra and his son deceased Abhishek Chopra had left their factory fortheir house in D.L.F., Gurgaon but did not reach their house. At about 9.41 P.M., PW-12 Pooja Chopra, daughter of Devender Chopra gave a B call to her father to find out as to why he was late. She learnt that her father and brother had been kidnapped and ransom of rupees fifty lacs was demanded for their release. She contacted her father's business partner informing him that Devender Chopra and Abhishek Chopra were kidnapped and C the kidnappers had demanded a ransom amount of rupees fifty lacs on telephone. The ~id nappers also talked to the wife of the deceased Devender Chopra at 11 P.M. demanding ransom money. Raman Anand also talked to Devender D Chopra. There were frequent calls from the kidnappers from the morning of 191h December, 2000 which were recorded on audio cassettes EX. P1 to P9. Since, the family could not fulfil the demand and offer to pay rupees ten lacs was not accepted by the kidnappers but negotiations continued. The police was E not informed on account of the fear that the victims may be killed as was threatened. When the kidnappers did not release Devender Chopra and Abhishek Chopra, and finding no way out, the matter was reported to the police on 241h December, 2000 at 5 A.M. Statement of PW-2, Raman Anand EX. PC F was recorded by Inspector Randhir Singh (PW-17) who deputed police officials at nearby STD booths. PW-14, SI Rajender Singh found the accused at STD booth Jawala Petrol Pump on Jaipur Highway at 8.15A.M. He overheard accused Manmohan telling accused Suresh that ransom demand be G not reduced below rupees twenty five lacs. He was in plain clothes and gave signal to PW-17 and the accused were apprehended. A slip EX. P-35 carrying residential phone number of Devender Chopra was recovered from Manmohan .. Ashok accused made disclosure statement EX. PS that H Devender Chopra and Abhishek Chopra had been killed and SU RESH v. STATE OF HARYANA [ADARSH KUMAR GOEL, J.] 765 their bodies thrown in gutters in Sectors-39 and 46. Mobile of A Devender Chopra was kept concealed in the house of the accused. Accused Manmohan i:nade similar disclosure statement EX. PT and that he had kep! concealed car of the deceased in his house at Palwal and a knife in his rented house at Sohna. Accused Suresh made similar disclosure statement B EX. P J and that he had concealed mobile of the deceased at the shop of his brother at Sohna. Accused Mahesh made similar disclosure statement EX. PV and that suitcase of the deceased was concealed in his old house. Accordingly, recoveries were effected. Post mortem of dead bodies was C conducted and other steps for investigation were completed. 3. After investigation, the accused were sent up for trial. The prosecution examined Dr. B.K. Rajora (PW-1 ), complainant Raman Anand (PW-2), Mrs. Vivek Bharti, Additional Chief D Judicial Magistrate, Bhiwani (PW-3), Head Constable Naresh Kumar (PW-6), Sub Inspector Balwan Singh (PW-7), Mahabir Singh (PW-8), Assistant Sub Inspector Budh Ram (PW-9), Surender Singh Rahman (PW-10), Head Constable Mohan Lal (PW-11 ), Pooja Chopra (PW-12), Sub Inspector Sanjeev E Kumar (PW-13), Sub Inspector Rajender Singh (PW-14 ), Brij Bhushan Mehta (PW-15), Sub Inspector Shakuntla (PW-16) and Inspector Randhir Singh (PW-17) and produced documents and material exhibits. The accused denied the prosecution allegations. F 4. After considering the evidence on record the trial Court convicted and sentenced the appellants for kidnapping and murder and concealing evidence in conspiracy and by common intention. All the accused stand sentenced to undergo G imprisonment for life and other lesser sentences which have been affirmed by the High Court. 5. We have heard learned counsel forthe parties. H 766 SUPREME COURT REPORTS [2014] 13 S.C.R. A 6.Learned counsel for the appellants submitted that there was no legal evidence to sustain the conviction and that the evidence of disclosure ~atements and recoveries was not reliable. B 7. Learned counsel for the State opposed the above statement and pointed out that the dead bodies were recovered at the instance of the appellants, apart from the recovery of car and personal belongings of the deceased. SI Rajender Singh (PW-14) and Inspector Randhir Singh (PW-17) had c overheard the conversation of the accused making demand of ransom on telephone at the STD Booth. The accused refused to give their voice sample as recorded in the Order dated 1st January, 2001 passed by the Additional Chief Judicial Magistrate, Gurgaon on application (Exhibit PF). Pooja D Chopra (PW-12) deposed that the deceased Devender Chopra had a talk with her mother on 18th December, 2000 that the deceased had been kidnapped for ransom which was followed up by further conversation with the kidnappers. Raman Anand (PW-2) also had talks with the kidnappers from E the mobile phone of his friend Neeraj. According to the post mortem reports, the death of Devender Chopra was on account of strangulation and cutting of throat by sharp weapon. Death of Abhishek Chopra was on account of stab injuries in chest and abdomen and the head injury caused by blunt force impact. F 8. Apart from the above, this is a case where Section 106 of the Evidence Act is clearly attracted which requires the accused to explain the facts in their exclusive knowledge. No doubt, the burden of proof is on the prosecution and Section G 106 is not meant to relieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within the knowledge of the accused. Recovery of dead bodies from covered gutters and personal belongings of the deceased from H other places disclosed by the accused stood fully established. SU RESH v. STATE OF HARYANA [ADARSH KUMAR GOEL, J.] 767 It casts a duty on the accused as to how they alone had the A information leading to recoveries which was admissible under Section 27 of the Evidence Act. Failure of the accused to give an explanation or giving of false explanation is an additional circumstance against the accused qs held in number of judgments, including State of Rajasthan vs. Jaggu Ram 1• B 9. In view of the above, we do not find any ground to interfere with the conviction and sentence of the appellants. The appellants are on bail. They may be taken into custody for undergoing the remaining sentence. c 10. We had asked learned counsel for the parties to make their submissions as to applicability of Section 357 A of the Code of Criminal Procedure providing for compensation by ·-- the State to the victims of the crime and also requested Shri L. Nageshwara Rao, Additional Solicitor General of India to assist D the Court on this aspect. 11. Accordingly, Shri Rao has made his submissions and also furnished a written note of his submissions mentioning the legislative history and purpose of the said provision and E the guidelines for determining the quantum of compensation and the power of Court to grant the interim compensation. We place on record our appreciation for the valuable contribution ofShri Rao. 12. It would now be appropriate to deal with the issue. F The provision has been incorporated in the Cr.P.C. vide Act V of 2009 and the amendment duly came into force in view of the Notification dated 31st December, 2009. The object and purpose of the provision is to enable the Court to direct the G State to pay compensation to the victim where the compensation under Section 357 was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated. The provision was incorporated 1 (2oos)12 sec 51 H 768 SUPREME COURT REPORTS [2014] 13 S.C.R. A on the recommendation of 1541h Report of Law Commission. It recognises compensation as one of the methods of protection of victims. The provision has received the attention of this Court in several decisions including Ankush Shiva;; Gaikwad vs. State of Maharas~tra 2 , In Re: Indian Woman says gangs raped on orders of Village Court published in Business and Financial News3, Mohammad Haroon vs. Union of lndia4 and Laxmi vs. Union of lndia5. In Abdul Rashid vs. State of Odisha & Ors. 6, to which one of us (Goel, J.) was party, it was observed:- C D E F G "6. Question for consideration is whether the responsibility of the State ends merely by registering a case, conducting investigation and initiating prosec1:1tion and whether apart from taking these steps, the State has further responsibility to the victim. Further question is whether the Court has legal duty to award compensation irrespective of conviction or acquittal. When the State fails to identify the accused or fails to collect and present acceptable evidence to punish the guilty, the duty to give compensation remains. Victim of a crime or his kith and kin have legitimate expectation that the State will punish the guilty and compensate the victim. There are systemic or other failures responsible for crime remaining unpunished which need to be addressed by improvement in quality and integrity of those who deal with investigation and prosecution, apart from improvement of infrastructure but punishment of guilty is not the only step in providing justice to victim. Victim expects a mechanism for rehabilitative measures, including monetary compensation. Such 2 (2013) 6 sec no 3 (2014) 4 sec 786 4 (2014) s sec 2s2 5(2014)4SCC427 H 6 (2014) 1 ILR-CUT-202 SU RESH v. STATE OF HARYANA [ADARSH KUMAR GOEL, J.] 769 compensation-has been directed to be paid in p(.Jblic A law remedy with reference to Article 21. In numerous -cases, to do justice to the victims, the Hon'ble Supreme Court has directed payment of monetary compensation as well as rehabilitative settlement where State or other authorities failed to protect the life and liberty of victims. B For example, Kewal Pa ti Vs. State of U.P. (1995) 3 SCC 600 (death of prisoner by co-prisoner), Supreme Court Legal Aid Committee Vs. State of Bihar, (1991) 3 SCC 482 (failure to provide timely medical aid by jail authorities, Chairman, Rly. Board Vs. Chandrima Das, C (2000) 2 SCC 465 (rape of Bangladeshi national by Railway staff), Nilabati Behera Vs. State of Orissa, (1993) 2 SCC 7 46 (Custodial death), Khatri (I) Vs. State of Bihar (1981) 1 SCC 623 (prisoners' blinding by jail D staff), Union Carbide Corporation Vs. Union of India, (1989) 1 sec 674 (gas leak victims). 7. Expanding scope of Article 21 is not limited to providing compensation when the State or its functionaries are guilty of an act of commission but also E to rehabilitate the victim or his family where crime is committed by an individual without any role of the State or its functionary. Apart from the concept of compensating the victim by way of public law remedy in writ jurisdiction, need was felt for incorporation of a F specific provision for compensation by courts irrespective of the result of criminal prosecution. Accordingly, Section 357 A has been introduced in the Cr.P.C. and a Scheme has been framed by the State of Odisha called 'The Odisha Victim Compensation G Scheme, 2012:. Compensation under the said Section is payable to victim of a crime in all cases irrespective of conviction or acquittal. The amount of compensation may be worked out at an appropriate forum in H 770 A B c D E F G H SUPREME COURT REPORTS [2014] 13 S.C.R. accordance with the said Scheme,- but pending such steps being taken, interim compensation ought to be given at the earliest in any proceedings. 8. In Ankush Vhivaji Gaikwad Vs. State of Maharashtra, (2013) 6 sec 770, the matter was reviewed by the Hon'ble Supreme Court with reference to development in law and it was observed: "33. The long line of judicial pronouncements of this Court recognised in no uncertain terms a paradigm shift · in the approach towards victims of crimes who were held entitled to reparation, restitution or compensation for loss or injury suffered by them. This shift from retribution to restitution began in the mid 1960s and gained momentum in the decades that followed. Interestingly the clock appears to have come full circle by the law makers and courts going back in a great measure to what was in ancient times common place. Harvard Law Review (1984) in an article on "Victim Restitution in Criminal Law Process: A Procedural Analysis" sums up the historical perspective of the concept of restitution in the following words: "Far from being a novel approach to sentencing, . restitution has been employed as a punitive sanction throughout history. In ancient societies, before the conceptual separation of civil and criminal law, it was standard practice to require an offender to reimburse the victim or his family for any loss caused by the offense. The primary purpose of such restitution was not to compensate the victim, but to protect the offender from violent retaliation by the victim or the community. It was a means by which the offender could buy back the peace he had broken. As the state gradually established a monopoly over the institution SU RESH v. STATE OF HARYANA [ADARSH KUMAR GOEL, J.] 771 of punishment, and a division between civil and A criminal law emerged, the victim's right to compensation was incorporated into civil law." 34. With modem concepts creating a distinction between civil and criminal law in which civil law provides for B remedies to award compensation for private wrongs and the criminal law takes care of punishing the wrong doer, the legal position that emerged till recent times was that criminal law need not concern itself with compensation to the victims since compensation was a civil remedy c that fell within the domain of the civil Courts. This conventional position has in recent times undergone a notable sea change, as societies world over have increasingly felt that victims of the crimes were being neglected by the legislatures and the Courts alike. o Legislations have, therefore, been introduced in many countries including Canada, Australia, England, New Zealand, Northern Ireland and in certain States in the USA providing for restitution/reparation by Courts administering criminal justice. E 35. England was perhaps the first to adopt a separate statutory scheme for victim compensation by the State · • 1;mdert1Je Criminal Injuries Compensation Scheme, .. . .. .· ,, . ..· 1964. Under the Criminal Justice Act, 1972 the idea of F payment of compensation by the offender was introduced. The following extract from the Oxford Handbook of Criminology (1994 Edn., p.1237-1238), which has been quoted with approval in Delhi Domestic Working Women's Forum v. Union of India and Ors. G (1995) 1SCC14 is apposite: (SCC pp.20-21, para-16) "16 ...... Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make an ancillary order H 772 A B c D E SUPREME COURT REPORTS [2014] 13 S.C.R. for compensation in addition to the main penalty in cases where 'injury', loss, or damage' had resulted. The Criminal Justice Act 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penology thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give reasons for not doing so. It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review ..... . The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an F even greater role for compensation."' (emphasis supplied) G H 36. In the United States of America, the Victim and Witness Protection Act of 1982 authorizes a federal court to award restitution by means of monetary compensation as a part of a convict's sentence. Section 3553(a)(7) of Title 18 of the Act requires Courts to consider in every case "the need to provide restitution to any victims of the offense". Though it is not mandatory SU RESH v. STATE OF HARYANA [ADARSH KUMAR GOEL, J.] 773 for the Court to award restitution in every case, the Act A