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SUPREME COURT OF INDIA
T.S. THAKUR AND GYAN SUDHA MISRA, JJ.
ANKUSH SHIVAJI GAIKWAD - Appellant
VERSUS
STATE OF MAHARASHTRA - Respondent
Criminal Appeal No._____ of 2013 (Arising out of S.L.P. (Crl.) No.6287 of 2011)
Decided on 3-5-2013.
(i) Indian Penal Code, 1860 – Section 302 – Murder – Conviction – Incident took place on a sudden fight without any premeditation and act of appellant hitting deceased was committed in heat of passion upon a sudden quarrel without appellant having taken undue advantage or acting in a cruel or unusual manner – There is not even a suggestion that appellant had any enmity or motive to commit any offence against deceased – Exchange of hot words in quarrel over barking of dog led to a sudden fight which in turn culminated in deceased being hit with rod on a vital part like head – Weapon used was not lethal nor was deceased given a second blow once he had collapsed to ground – Cumulative effect of all circumstances should entitle appellant to benefit of Exception 4 to Section 300 of I.P.C. – However, appellant had knowledge that injury inflicted by him was likely to cause death of deceased – Case would more appropriately fall under Section 304 Part II of IPC – Instead of Section 302 IPC appellant shall stand convicted for offence of culpable homicide not amounting to murder punishable under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment for a period of five years – Fine imposed upon appellant and default sentence awarded to him shall remain unaltered. (Paras 9, 24 and 64)
(ii) Criminal Procedure Code, 1973 – Sections 357 and 357A – Award of compensation – Section 357 Cr.P.C. confers duty on Court to apply its mind to question of compensation in every criminal case – While award or refusal of compensation in a particular case may be within Court’s discretion, there exists mandatory duty on Court to apply its mind to question in every criminal case – Application of mind to question is best disclosed by recording reasons for awarding/refusing compensation – For any exercise involving application of mind, Court ought to have necessary material which it would evaluate to arrive at a fair and reasonable conclusion – Occasion to consider question of award of compensation would logically arise only after court records conviction of accused – Capacity of accused to pay which constitutes an important aspect of any order under Section 357 Cr.P.C. would involve a certain enquiry – Such enquiry can precede order on sentence to enable court to take a view, both on question of sentence and compensation that it may in its wisdom decide to award to victim or his/her family. (Paras 57 and 62)
Result: Appeal partly allowed.
Based on the legal document provided, here are the key points regarding the case of Ankush Shivaji Gaikwad vs. State of Maharashtra:
1. Conviction and Sentence Modification * The Supreme Court modified the conviction from murder (Section 302 IPC) to culpable homicide not amounting to murder (Section 304 Part II IPC). * The appellant was sentenced to rigorous imprisonment for five years, with the existing fine and default sentence remaining unaltered. * This decision was based on the finding that the incident occurred during a sudden fight without premeditation, in the heat of passion, and without the appellant acting in a cruel or unusual manner, satisfying Exception 4 to Section 300 IPC. (!) (!) (!)
2. Legal Reasoning for Downgrading the Offense * Sudden Fight and Heat of Passion: The quarrel arose from the barking of a dog, leading to an exchange of hot words and a sudden fight where no prior enmity existed. (!) (!) * Nature of Injury and Weapon: The weapon used (iron pipe) was not lethal, and the deceased was hit only once on the head before collapsing; no second blow was dealt while the deceased was helpless. (!) (!) * Intention vs. Knowledge: The Court distinguished between the intention to kill (Section 302 or 304 Part I) and the knowledge that the act was likely to cause death (Section 304 Part II). The facts indicated the latter. (!) (!) * Precedents: The Court relied on several precedents (Surinder Kumar, Ghapoo Yadav, Sukbhir Singh, Mahesh, Vadla Chandraiah, Camilo Vaz, Jagrup Singh, etc.) where similar circumstances led to convictions under Section 304 Part II. (!) (!) (!) (!) (!) (!) (!)
3. Mandatory Duty to Consider Compensation (Section 357 Cr.P.C.) * Duty to Apply Mind: Despite the discretionary language ("may") in Section 357, the Court held that there is a mandatory duty on every criminal court to apply its mind to the question of compensation in every case involving conviction. (!) (!) (!) (!) (!) * Recording Reasons: This duty must be discharged by recording specific reasons for awarding or refusing compensation, as silence renders the order arbitrary and defeats the object of the provision. (!) (!) (!) (!) * Capacity to Pay: Courts must conduct an enquiry (even if summary) into the accused's capacity to pay compensation before passing an order. (!) (!) (!) * Compensation is Additional: Compensation awarded under Section 357 is not ancillary to the fine; it is an additional penalty intended to provide relief to the victim. (!) (!) * Critique of Lower Courts: The Supreme Court noted that the trial court and the High Court in this specific case remained oblivious to Section 357 and failed to apply their mind to the compensation question. (!)
4. Relevant Statutes and Acts * Indian Penal Code, 1860: Sections 302, 304 (Part I & II), 300 (Exception 4), 323, 326, 34, 504. (!) * Criminal Procedure Code, 1973: Sections 357, 357(1), 357(3), 357A, 545(1)(b). (!) (!) (!) (!) (!) * Victim and Witness Protection Act: Sections 355(a)(7), 355(c). (!) * International/Comparative Law: References were made to the UN Declaration on Basic Principles of Justice for Victims, the Criminal Justice Act of the UK, and the Victim and Witness Protection Act of the USA to support the paradigm shift towards victim restitution. (!) (!) (!)
JUDGMENT
T.S. Thakur, J.:-Leave granted.
2. This appeal arises out of a judgement and order dated 24th August, 2010 passed by the High Court of Judicature at Bombay, Aurangabad Bench, whereby Criminal Appeal No.359 of 2008 filed by the appellant and two others has been dismissed in so far as the appellant is concerned and allowed qua the remaining two, thereby upholding the appellant’s conviction for the offence of murder punishable under Section 302 of the I.P.C and the sentence of imprisonment for life with a fine of Rs.2,000/- awarded to him. In default of payment of fine the appellant has been sentenced to undergo a further imprisonment for a period of three months.
3. The factual matrix in which the appellant came to be prosecuted and convicted has been set out in detail by the trial Court as also the High Court in the orders passed by them. We need not, therefore, recapitulate the same all over again except to the extent it is necessary to do so for the disposal of this appeal. Briefly stated, the incident that culminated in the death of deceased-Nilkanth Pawar and the consequent prosecution of the appellant and two others occurred at about 10.00 p.m. on 3rd February, 2006 while the deceased and his wife P.W.1-Mangalbai were guarding their Jaggery crop growing in their field. The prosecution story is that the appellant-Ankush Shivaji Gaikwad accompanied by Madhav Shivaji Gaikwad (accused No.2) and Shivaji Bhivaji Gaikwad (accused No.3) were walking past the field of the deceased when a dog owned by the deceased started barking at them. Angered by the barking of the animal, the appellant is alleged to have hit the dog with the iron pipe that he was carrying in his hand. The deceased objected to the appellant beating the dog, whereupon the appellant started abusing the former and told him to keep quiet or else he too would be beaten like a dog. The exchange of hot words, it appears, led to a scuffle between the deceased and the accused persons in the course whereof, while accused Nos.2 and 3 beat the deceased with fist and kicks, the appellant hit the deceased with the iron pipe on the head. On account of the injury inflicted upon him, the deceased fell to the ground whereupon all the three accused persons ran away from the spot. The incident was witnessed by the wife of the deceased, P.W.1- Mangalbai and by P.W.5-Ramesh Ganpati Pawar who was also present in the field nearby at the time of the occurrence. The deceased was carried on a motorcycle to the hospital of one Dr. Chinchole at Omerga from where he was shifted to Solapur for further treatment. Two days after the occurrence when the condition of the deceased became precarious, P.W.1-Mangalbai filed a complaint at the Police Station, Omerga on 5th February, 2006 on the basis whereby Crime No.25 of 2006 under Sections 326, 504 and 323 read with Section 34 of the I.P.C was registered by the police. Investigation of the case was taken up by P.W.6-Police Sub Inspector Parihar who recorded the panchnama of the scene of the crime and arrested the accused persons. The deceased eventually succumbed to his injuries on 7th February, 2006 whereupon Section 302 read with Section 34 of the I.P.C. was added to the case.
4. Post-mortem examination of the deceased revealed a contusion behind his right ear, a contusion on the right arm and an abrasion on the right ankle joint. Internal examination, however, showed that the deceased had sustained an internal injury to the temporal and occipital region under the scalp and a fracture on the base of the skull. Blood clots were noted in the brain tissues and the base of the skull, besides internal bleeding. According to the doctor, the death was caused by the injury to the head. After completion of the investigation that included seizure of the alleged weapon used by the appellant, the police filed a chargesheet before the judicial Magistrate, who committed the appellant and co-accused to face trial for the offence of murder punishable u
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