Ankush Shivaji Gaikwad v. State of Maharashtra (By-Vaishnavi Nimje)

Ankush Shivaji Gaikwad v. State of Maharashtra

AIR 2013 SC 2454, [2013] 6 SCC 770

JUDGES: T.S. Thakur and Gyan Sudha Misra

Date of Judgement: 03-05-2013

Authored By- Vaishnavi Nimje

In our Indian judicial system, criminal cases are becoming a contest between the accused and the state. In the fight for dominance between the State and the accused, the victim’s situation is often forgotten. I believe the criminal system needs to do something more than just punishing the victims or the criminals. They must try to restore and alleviate the damage done to victims who suffer mentally, psychologically, and financially as a result of the crime. The law related to victimology has been debated all over the world where it was debated that does the obligation of state ends with registering, investigating and punishing the accused or does it have a legal duty to award compensation to the individual.

Landmark Judgement - Precedents and cases which have been decided by the High Court or the Supreme Court become a law and can be used as a reference. Landmark judgements are the judgements wherein a law was interpreted or changed or a previous judgement was reversed. Basically a landmark judgement is one which opens up new directions in our constitutional provisions. D.Y Chandrachud J. said “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been.”
I personally believe that this case can fit in the criteria of landmark judgement because this case mainly talks about the power of the court to give compensation to the victims.  It was held that, the legislative intent of the provisions relating to victim compensation was to reassure the victim that he is not a forgotten party in the criminal justice system. Some of the landmark judgements are Triple Talaq Judgement.

Another case was Keshavananda Bharti where the the ruling  was considered among the most consequential decisions by the Supreme Court as it set out the “basic structure” of the Constitution that Parliament cannot amend.

The issue is the question or problem to be resolved by application of a legal rule. In this particular case, there are some issues which were addressed by the court.
Whether the appellant-accused will be liable for lesser offence i.e. culpable homicide not amounting to murder punishable under section 304 Part I or II of IPC?
The distinction between the two parts was drawn by the court in the case Alister Anthony Pareira v. St of Maharashtra.[1]

This issue can be drawn from paragraph no.8 in the judgement where it was said that the appellant’s case fell within exception 4 to Section 300 of the I.P.C. which said –

“Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”[2]

Under this exception, death must be caused in a sudden fight and that sudden fight must be without any premeditation. The death must be occurred in that heat of the moment. In Ankush Shivaji Gaikwad case, both the appellant did not have any intention to kill or cause the death of the deceased.  In Radhey Shyam And Another vs State Of U.P[3] the appellant was extremely angry when he came to know that his calf had come to the deceased place as a result the appellant started abusing the deceased, when he tried to stop him, the appellant fired at the deceased. As we can see the appellant had an intention to kill the deceased, hence, he was held liable to murder.

Whether the court is responsible to award compensation to the victim and record the appropriate reasons while granting or refusing compensation to them?
The above issue has been drawn from paragraph no. 28 of the judgement which appears to be Sec.357 of CrPC. It provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused in addition to conviction. England was the first to introduce the idea of payment of compensation by the offender.

Whether compensation under Sec.357 CrPC should be awarded?
Although it is not compulsory for the court to award compensation in every case but demands that the court provides its reasons for denying the same. Sec.357 of CrPC grants discretional power to the court to award or reject the compensation in a particular case. The concern of the victim was whether the courts would really devote enough time on section 357 and 357 A or would merely pay lip service as has been witnessed in  a number  of  earlier  judgments.

Rules are the relevant laws that the court uses to make its decision. In Ankush Shivaji Gaikwad v. St of Maharashtra, the laws that the court referred or used to come to a judgement are as follows –
Section 300 of The Indian Penal Code, 1860 (Exception four)
Section 302 of The Indian Penal Code, 1860
Section 304 of The Indian Penal Code, 1860
Section 357 of The Code of Criminal Procedure, 1973
Court referred to certain case laws which had similar situations and had applied exception 4 of Sec.300 of The Indian Penal Code and also converted the offence from murder to culpable homicide not amounting to murder. In Surinder Kumar v. UT, Chandigarh[4] the court held that in a sudden quarrel or in the heat of the moment if a person picks up a weapon which is handy and causes injuries, out of which a person is dead or injured; he would be entitled to benefit of exception. Another case is Sukhbir Singh v. State of Haryana[5] in which reversing decision was taken by the High Court that all fatal injuries resulting in death cannot be termed as cruel for the purpose of exception 4 of Sec.300 of The Indian Penal Code.

Case Analysis – In the case of Ankush Shivaji Gaikwad v. State of Maharashtra, Ankush Shivaji Gaikwad along with Madhav Shivaji Gaikwad and Shivaji Bhivaji Gaikwad were passing by the field of the deceased when suddenly a dog( pet dog of the deceased) started barking at all of them. One of them got frustrated and irritated by the noise of the barking dog and hit the dog with an iron pipe which he was carrying with him. Sooner the deceased objected the appellant for harming his

dog and the appellant started abusing the deceased with sharp words and started threatening that the appellant too would be beaten like he did with the dog. The harsh exchange of hot words led to provoke Madhav Gaikwad and Shivaji Gaikwad to start beating the deceased and apparently Ankush hit the deceased with the iron pipe on the head. Due to this course of action, the deceased was dead. The court said that the incident which took place was due to a sudden fight. There was not any premeditation in the commission of the crime. There was not any motive or intention of the accused to kill the deceased. If we look and combine all the circumstances, the appellant was to the benefit of exception four of Sec.300 of The Indian Penal Code sec.357 of The Criminal Procedure Code states that compensation is payable for any loss or injury whether physical or pecuniary and is payable only when the accused is punished with a sentence of fine or some other sentences of which fine is a part of. The compensation is paid out of the fine which is recovered. The amount of fine depends upon the limit imposed on a particular offences and extent of the courts power.

The Principles of Victimology has its foundations in the Indian Constitution particularly in the fundamental rights and DPSPs. A new initiative was taken by the judiciary in evolving compensatory remedy through Art.32. The court in Rudal Shah v. State of Bihar[6]awarded compensation under Art.32 for the deprivation of fundamental rights. Victim compensation will help criminals to overcome their destiny and cope up with the damages and injuries caused.

his scheme has helped victims of crime even when the verdict has not passed and the criminal has not been identified. This helps victims to overcome their adverse misfortunes and cope up with the damages and injuries caused. However, viewing the other side of the coin it shall be noted that there have been several loopholes and drawbacks.

The supreme court noted that the nature of the simple injury inflicted by the accused, the part of the body on which it was inflicted, the weapon used to inflict the same and the circumstances in which the injury was inflicted do not suggest that the appellant had the intention to kill the deceased. Even the weapon used was not lethal. The prosecution not even made any suggestion about ill will or motive to commit such offence against the deceased. Thus, the Apex Court allowed the appeal to the extent of convicting appellant with rigorous imprisonment under S.304 Part II of IPC instead of
S.302 IPC. Also, it was held that court in every criminal case will consider the issue of compensation under S.357 IPC and apply its mind with reasons to award or reject the monetary compensation to the victim.€