Ankush Shivaji Gaikwad v. State of Maharashtra (2013)

By Amit Sheoran

Introduction

The appeal was filed by the plaintiff after the judgment and order passed by the Aurangabad Bench of Bombay High Court on 24^th august 2010. As per the criminal Appeal, No.359 that was filed in 2008 by the appellant along with two others but those two have been dismissed so far. The appellant is concerned about the allowing of two remaining while he was charged for the offense of murder that is punishable under IPC section 302 and for that the appellant was punished with life imprisonment and along with the fine of Rs.2,000/-. But due to the default in payment of fine the appellant was sentenced to three more months in imprisonment. As per the matrix that is based on the facts on which the appellant is prosecuted and also convicted by the trial Court as well as the order passed by the High Court also. 

Facts of the Case

The facts of the case are like the incident occur due to the ultimate death of the deceased named Nilkanth Pawar. The consequent prosecution of the appellant along with two others was going into their field at 10.00 p.m. On 3rd February 2006, the deceased and his wife were taking care of their Jaggery crop that was growing in their field. The story of prosecution is that Ankush Shivaji Gaikwad along with two other his friends Madhav Shivaji Gaikwad and Shivaji Bhivaji Gaikwad respectively these were the accused along with Ankush, they were passing the field of the deceased at that time the dog of the deceased person started barking towards the appellant and his friend. They all three got angry due to the dog’s barking and they used the lathi to hit the dog of the deceased person and this led to the ultimate quarrel and fight in words by using abusable words by both parties. The deceased person raised an objection to the appellant for the beating of his dog. After that the appellant started abusing the farmer and said to him keep quiet otherwise, I used to beat you in the same way as your dog is beaten. This exchange of abusive language or words led to a fight and then Ankush Gaikwad started to hit the farmer with the iron road or pipe on his head and as a result, the farmer died during that moment all the three accused ran away from that spot. The witnesses of the incident were the wife of the deceased person named Mangalbai and the owner of the neighborhood field that is Ramesh Ganpati Pawar who was present in his field at the time of the incident. After that, the injured person was carried to the nearby hospital by bike. After two days his health situation became more precarious after that the wife of the deceased person filed a complaint against the accused at the Omega Police Station, on 5th February 2006 on the basis of sections 323, 326, 504  that was read with Section 34 of the I.P.C. After that, the police started the investigation and on 7^th February 2006 the person died and after that one more section was added, section 302 that was read with section 34 of IPC. After the Post-mortem report of the deceased person came that said that there was a contusion behind his right ear, on the right arm and there was an abrasion also on the joint of his right ankle.  Along with it the report also said that there were some internal injuries on his head and fractures on the skull, blood clots in his brain tissue that lead to the death of the person. During the investigation, the police found the weapon that was used to hit the person and after that, the police filed a charge sheet before the judicial magistrate, after going through the facts and circumstances the judicial magistrate found them guilty under Section 302 that was read with Section 34 of the I.P.C.  And the court held that the appellant and his co-accused are guilty of the offense of murder under section 302 of IPC and therefore they were sentenced to life imprisonment and a fine of rupees 2,000/-  each one along with a default sentence of rigorous imprisonment for three months.

But The incident occurred between them because a sudden fight between them took place without any prior intention that the appellant will hit the deceased person but the appellant hit the farmer in the heat of passion without taking an unfair advantage. And as a result, the appellant filed a petition before the high court and the high court granted the petition. 

Issue

1. Whether the appellant  (who was the accused) is liable for murder or the culpable homicide not amounting to murder? 
2. Whether the courts have the authority to consider the question of granting compensation to the victim and also to record the reasons for granting and refusing compensation?
3. Whether the compensation should be awarded as per section 357 of Cr.P.C.?

Judgment

After going through the various facts and circumstances the apex court found that the nature of the injury and the way in which the incident happen indicate that there was no malafide intention of the accused to kill the person because the incident happens due to the barking of a dog. The dog barked at the accused and his two friends and then they used a stick to hit the dog and this led to objection by the deceased person and then the wording used by the accused that they will also hit you like your dog. This abusable transfer of words or language leads to the fight between them and in the heart of compassion the accused hits on the head of the deceased person. So this indicates that there was no ill will or motive to kill the person. After seeing the issue of granting compensation to the victim, it looked as per section 357 of Cr.P.C. grant power to provide compensation to the victim in the form of a fine. The concept of granting compensation arose in the court of England because England was the first country that introduced the concept of making payment of compensation to the victims by the offender. After that, the USA also applied the concept of compensation as per The Victim and Witness Protection Act of 1982 that granted the power to the federal court to grant compensation on solid ground. 

Hence we can say that it is not compulsory for the courts to award restitution on each case but they can grant and deny compensation on the solid reason but this means not that the court has no response the denying the compensation, the court has also need to give a solid reason for denying the compensation. To decide the amount of compensation, the court needs to look into the history of the person and his financial situation and then the loss occurs to the victim and after that to make a proper balance the court can grant compensation. So, as per section 357 of cr.P.C. The court has the power to grant or deny the compensation on the basis of the case to case but it is mandatory for the court to apply their mind in granting the compensation after seeing the capacity of the family of the accused and also keeping in mind the loss occurring to the victim. Thus the court failed to consider section 357 in the proper manner.

Held 

So the court granted the appeal up to the extent of convicting the appellant with rigorous imprisonment according to section 304 (2) of IPC instead of section 302 of IPC. And the court also held that the court needed to consider the awarding or rejecting the compensation and should have needed to have a proper reason for that.

Analysis of Judgment

After going through the entire facts and circumstances, it appears that as per section 357 of Cr.P.C. The court has the power to grant or reject compensation but it is the duty of the court to apply its mind while granting or rejecting the compensation and what is the reason behind that and may vary from case to case. It is also the duty of the court to look into the background and as well as the financial situation of the accused before granting the compensation. But in the above-mentioned case, the Courts ignore the provision of section 357 of Cr.P.C. before granting the compensation.  

The second thing that is about the sentence that is awarded to the accused was as per section 302 of IPC while the accused was found responsible under section 304 of IPC that talks about the culpable homicide not amounting to the murder. Because after the investigation it was found that the incident happened due to the sudden fight between the accused and the deceased person. So this indicates that there were no prior intentions, greed, and motives like revenge in the mind of the accused, hence the entire incident was the result of the sudden fight. Hence it falls under section 304(2) of IPC that said that if any person was killed due to the sudden heat or fight between them then it will fall under section 304(2) of IPC that talk about the culpable homicide not amounting to murder because there were no any prior intention or motive to kill the person. Hence the appellant was not liable for section 302 but it is liable under section 304 part 1 and 2 of IPC. And we can find whether there was a motive or not of the accused behind killing the death of a person by knowing the following ways and this will lead us to understand whether the accused is liable under section 302 or 304 of IPC.  

The intention of the accused can be seen by considering various facts and these facts are given as below:- 

 1. the weapon was carried by the accused or was picked up from the spot and the nature of the weapon used 

2. the amount of force employed in causing injury that means whether the blow is aimed at a vital part of the body

3.  whether the act was in the course of a sudden quarrel or sudden fight or free-for-fight or whether the incident occurs by chance or whether there were any pre-planned ways.

 4.  whether there was any grave and sudden provocation, and if so, the cause for such provocation, like in heat of passion.

5.  whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner

6. whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.

And the court also said that the deciding amount of compensation depends on the case. But it is the responsibility of the judge of that court to take a proper look before awarding or rejecting the compensation. Second thing is that there was a mistake of the trial court that the accused was sentenced under section 302 while he was liable under section 304 part 1 and 2 because the death of a person was caused due to the sudden fight between them there was no prior intention to kill the deceased person. 

Conclusion

After going through the case, I would like to conclude that, it is true that the court has the power to grant the compensation as per section 357 of Cr.P.C. but before granting or rejecting the compensation it is the duty of the court to think about granting or rejecting the compensation if it rejects or award then why. Hence in the above-mentioned case, the apex court held that there was a mistake in making consideration on granting compensation by the court and second thing is that the accused was punished under section 304(2) which is culpable homicide not amounting to the murder of IPC instead of section 302. And The fine that was imposed on the appellant along with the default sentence of rigorous imprisonment remains unaltered.