Supreme Court of India
ANKUSH SHIVAJI GAIKWADversusSTATE OF MAHARASHTRA
- Citation
- 2013 INSC 309
- Decided
- 3 May 2013
- Disposal
- Disposed off
- Bench
- T S THAKUR
Holding
The appellant is entitled to the benefit of Exception 4, his conviction is reduced to culpable homicide not amounting to murder under Section 304 Part II IPC, and courts have a mandatory duty to apply their mind to compensation under Section 357 CrPC.
Summary
Ankush Shivaji Gaikwad and two others were convicted of murder for the death of Nilkanth Pawar after a sudden quarrel over a barking dog, during which Gaikwad struck the victim on the head with an iron pipe. The appellant argued that the incident was a sudden fight without pre‑meditation and that Exception 4 to Section 300 IPC applied, reducing the offence to culpable homicide not amounting to murder. The Supreme Court examined the nature of the injury, the weapon used, and the circumstances, finding no intention to kill and concluding that the case fell under Section 304 Part II IPC. The Court also addressed whether courts must consider compensation under Section 357 CrPC, holding that the provision imposes a mandatory duty to apply the mind to compensation, though none was awarded here due to the facts. Consequently, the conviction was altered to culpable homicide under Section 304 Part II and the sentence reduced to five years’ rigorous imprisonment, with the fine and default sentence unchanged.
Issues considered
- The appellant's liability: whether the facts warrant conviction for murder under Section 302 IPC or for a lesser offence under Section 304 Part II IPC by invoking Exception 4 to Section 300.
- Whether courts have a duty to consider and award compensation to victims under Section 357 of the Code of Criminal Procedure, 1973.
- Whether compensation should be awarded in the present case.
Legislation cited
- Code of Criminal Procedure, 1973s. 357
- Indian Penal Code, 1860s. 300 Exception 4, s. 302, s. 304 Part II
Subjects
murderculpable homicideException 4IPC Section 300IPC Section 304 Part IISection 357 CrPCvictim compensationapplication of mindsentencingvictimology
Judgment
(2013] 8 S.C.R. 863
ANKUSH SHIVAJI GAIKWAD A
V.
STATE OF MAHARASHTRA
(Criminal Appeal No. 689 of 2013)
MAY 3, 2013 B
[T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]
Penal Code, 1860 - s.300 Exception 4 ands. 304 (Part
II) - Trial and conviction uls. 302134 by courts below - Held: c
The nature of injury inflicted by accused, the part of body on
which inflicted, weapons of offence and circumstances in
which injury was inflicted, do not suggest that the accused had
the intention to kill the deceased - Therefore, accused entitled
to benefit of Exception 4 to s.300 - The case would fall uls. D
304 (Part II) - Conviction altered to one u/s. 304 (Part II) and
sentence reduced to 5 years RI.
Code of Criminal Procedure, 1973 - s.357 -
Compensation to the victim - Award of - Held: Compensation E
u/s.357 is not ancillary to other sentences, but in addition
thereto - It is mandatory duty of the Court to apply its mind
to the question of awarding compensation in every criminal
case - The court needs to take a summary enquiry regarding
capacity of the accused to pay, to decide the question of F
compensation to victim - In the present case, courts below
remained oblivious to provisions of s. 357 - In view of the facts
of the case and the time lag since the offence was committed,
resort to s.357 not taken by the Court - However, the courts
are cautioned to remain careful - Copy of present judgment G
directed to be forwarded to the Registrar General of High
Courts for circulation among judges handling criminal trials
and appeals.
863 H
864 SUPREME COURT REPORTS [2013] 8 S.C.R.
A Interpretation of Statutes - Directory or mandatory nature
of the provision of a statute - Ascertainment of- To be done
from the intention of the legislature and not from the language
of the provision - Mere use of words 'may' or 'shall' is not
conclusive - To find out the legislative intent, court to examine
B scheme of the Act, purpose and object underlying the
provision, consequences likely to ensue or inconvenience
likely to result, if the provision is read one way or the other.
Appellant-accused alongwith the co-accused was
C prosecuted u/ss.302/34 IPC. Trial court convicted both
the accused finding them guilty for the offence of murder
and sentenced them to life imprisonment with fine of
Rs.2000/- with default clause. The High Court, in appeal,
confirmed the conviction and sentence of the appellant-
0
accused and acquitted the co-accused. Hence the
present appeal.
The questions for consideration in the appeal were
whether, in the facts of the case, the appellant-accused
E was liable for lesser offence of culpable homicide not
amounting to murder punishable u/s. 304 Part I or II IPC;
and whether the courts have a duty to advert to the
question of awarding compensation to the victim and
record reasons while granting or refusing relief to them
F
and whether compensation u/s. 357 Cr.P.C. was required
to be awarded.
Disposing of the appeal, the Court
G HELD: 1.1. The incident in question took place on a
sudden fight without any premeditation and the act of the
appellant hitting the deceased was committed in the heat
of passion upon a sudden quarrel without the appellant
H having taken undue advantage or acting in a cruel or
ANKUSH SHIVAJI GAIKWAD v. STATE OF 865
MAHARASHTRA
unusual manner. Even according to the prosecution A
version, there was no premeditation in the commission
of the crime. There is not even a suggestion that the
appellant had any enmity or motive to commit any
offence against the deceased. The weapon used was not
lethal nor was the deceased given a second blow once B
he had collapsed to the ground. The prosecution case
was that no sooner the deceased fell to the ground on
account of the blow on the head, the appellant and his
companions took to their heels - a circumstance that C
shows that the appellant had not acted in an unusual or
cruel manner in the prevailing situation so as to deprive
him of the benefit of Exception 4. During the exchange
of hot words between the deceased and the appellant, all
that was said by the appellant was that if the deceased
0
did not keep quiet, even he would be beaten like a dog.
The use of these words also clearly shows that the ·
intention of the appellant and his companions was at
best to belabour him and not to kill him as such. The
cumulative effect of all these circumstances should E
entitle the appellant to the benefit of Exception 4 to
Section 300 IPC. [Para 9] [877-C-E; 878-A-D]
Surinder Kumar vs. Union Territory, Chandigarh (1989)
2 SCC 217: 1989 (1) SCR 941; Ghapoo Yadav and Ors. vs. F
State of M.P. (2003) 3 SCC 528: 2003 (2) SCR 69; Sukbhir
Singh vs. State of Haryana (2002) 3 SCC 327: 2002 (1) SCR
1152; Mahesh vs. State of MP (1996) 10 sec 668: 1996 (5)
Suppl. SCR 300; Vadla Chandraiah vs. State of Andhra
Pradesh (2006) 14 SCALE 108; Shankar Diwal Wadu vs. G
State of Maharashtra (2007) 12 SCC 518: 2007 (4) SCR 253
- relied on.
H
866 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 1.2. 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
B deceased. All that can be said is that the appellant had
the knowledge that the injury inflicted by him was likely
to cause the death of the deceased. The case would,
therefore, more appropriately fall under Section 304 Part
II of the IPC. [Para 24] [888-C-D]
c
Alister Anthony Pareira vs. State of Maharashtra (2012)
2 SCC 648: 2012 (1) SCR 145; Singapagu Anjaiah vs. State
of Andhra Pradesh (2010) 9 SCC 799: 2010 (7) SCR 703;
Basdev vs. The State of PEPSU AIR 1956 SC 488: 1956
D SCR 363; Reg. vs. Monkhouse (1849) 4 Cox C. C. 55;
Camilo Vaz vs. State of Goa (2000) 9 SCC 120; Jagrup Singh
vs. State of Haryana (1981) 3 SCC 616: 1981 (3) SCR 839;
Chamru Budhwa vs. State of Madhya Pradesh AIR 1954 SC
E 652; Sarabjeet Singh and Ors. vs. State of Uttar Pradesh
(1984) 1 SCC 673; Mer Dhana Sida vs. State of Gujarat
(1985) 1 SCC 200; Sukhmandar Singh vs. State of Punjab
AIR 1995 SC 583; Pulicher/a Nagaraju @ Nagaraja Reddy
vs. State of Andhra Pradesh (2006) 11 SCC 444: 2006 (4)
F Suppl. SCR 633 - relied on.
Kasam Abdulla Hafiz vs. State of Maharashtra (1998) 1
SCC 526: 1997 (6) Suppl. SCR 168 - distinguished.
1.3. The appellant shall stand convicted for the
G 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. [Para 64] [913-8-C]
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 867
MAHARASHTRA
2.1. With modern concepts creating a distinction A
between civil and criminal law in which civil law provides
for 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 8
compensation to the victims since compensation was a
civil remedy 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 C
increasingly felt that victims of the crimes were being
neglected by the legislatures and the courts alike. [Para
30) [891-H; 892-A·C]
Delhi Domestic Working Women's Forum vs. Union of
India and Ors.(1995) 1 SCC 14: 1994 (4) Suppl. SCR 528; D
State of Gujarat and Anr. vs. Hon'ble High Court of Gujarat
(1998) 7 sec 392: 1998 (2) Suppl. SCR 31 - relied on.
Article "Victim Restitution in Criminal Law Process: A
Procedural Analysis" in Harvard Law Review (1984); Oxford E
Handbook of Criminology (1994 Edn. P.1237 -1238); The Law
Commission of India 41st Report; the Law Commission 48th
Report; The 154th Law Commission Report - referred to.
2.2. While social responsibility of the criminal to F
restore the loss or heal the injury is a part of the punitive
exercise, the length of the prison term is no reparation
to the crippled or bereaved but is futility compounded
with cruelty. Victimology must find fulfilment not through G
barbarity but by compulsory recoupment by the wrong
doer of the damage inflicted not by giving more pain to
the offender but by lessening the loss of the forlorn. [Para
26] [888-G-H; 889-A·B]
H
868 SUPREME COUt'.{T REPORTS (2013] 8 S.C.R.
A Maru Ram and Ors. vs. Union of India and Ors. (1981) 1
sec 107- relied on.
2.3. The language of Section 357 Cr.P.C. at a glance
may not suggest that any obligation is cast upon a Court
B to apply its mind to the question of compensation. Sub-
section (1) of s.357 states that the Court "may" order for
the whole or any part of a fine recovered to be applied
towards compensation in the following cases: (i) To any
person who has suffered loss or injury by the offence,
C when in the opinion of the Court, such compensation
would be recoverable by such person in a Civil Court. (ii)
To a person who is entitled to recover damages under the
Fatal Accidents Act, when there is a conviction for
causing death or abetment thereof. (iii) To a bona fide
0
purchaser of property, which has become the subject of
theft, criminal misappropriation, criminal breach of trust,
cheating, or receiving or retaining or disposing of stolen
property, and which is ordered to be restored to its
E rightful owner. Sub-section (3) of Section 357 further
empowers the Court by stating that it "may" award
compensation even in such cases where the sentence
imposed does not include a fine. [Paras 45 and 46] [902-
E-H; 903-A-C]
F
2.4. The power of the Courts to award compensation
to victims under Section 357 is not ancillary to other
sentences but in addition thereto and that imposition of
fine and/or grant of compensation to a great extent must
G depend upon the relevant factors apart from such fine or
compensation being just and reasonable. [Para 28] [890-
C-D]
Hari Singh vs. Sukhbir Singh and Ors. (1988) 4 SCC ·
H 551: 1988 (2)Suppl. SCR 571; Sarwan Singh and others vs.
ANKUSH SHIVAJI GAIKWAD v. STATE OF 869
MAHARASHTRA
State of Punjab (1978)4 SCC 111: 1979 (1) SCR 383; Ba/raj A
vs. State of U.P. (1994) 4 SCC 29; Baldev Singh and Anr.
vs. State of Punjab (1995) 6 SCC 593: 1995 (4) Suppl. SCR
301 ; Dilip S. Dahanukar vs. Kotak Mahindra Co. Ltd. and Anr.
(2007) 6 sec 528; 2001 (4) SCR 1122 - relied on.
B
2.5. Cases may arise where a provision is mandatory
despite the use of language that makes it discretionary.
Mere use of word 'may' or 'shall' is not conclusive. The
question whether a particular provision of a statute is
directory or mandatory, can be resolved by ascertaining C
the intention of the Legislature and not by looking at the
language in which the provision is clothed. And for
finding out the legislative intent, the Court must examine
the scheme of the Act, purpose and object underlying the
prov1s1on, consequences likely to ensue or D
inconvenience likely to result if the provision is read one
way or the other and many more considerations relevant
thereto. [Paras 46 and 49] [903-C; 905-A-C]
Smt. Bachahan Devi and Anr. vs. Nagar E
Nigam, Gorakhpur and Anr. AIR 2008 SC 1282: 2008 (2)
SCR 424; Dhampur Sugar Mills Ltd. vs. State of U.P. and
Ors. (2007) 8 SCC 338: 2007 (10) SCR 245 - relied on.
Julius v. Lord Bishop of Oxford (1880) 5 AC 214 - F
referred to.
2.6. Section 357, confers a power coupled with a duty
on the Courts to apply its mind to the question of
awarding compensation in every criminal case. The G
power to award compensation was intended to reassure
the victim that he or she is not forgotten in the criminal
justice system. The victim would remain forgotten in the
criminal justice system if despite Legislature having gone
so far as to enact specific provisions relating to victim H
870 SUPREME COURT REPORTS [2013] 8 S.C.R.
A compensation, Courts choose to ignore the provisions
altogether and do not even apply their mind to the
question of compensation. It follows that unless Section
357 is read to confer an obligation on Courts to apply their
mind to the question of compensation, it would defeat the
B ·very object behind the introduction of the provision. [Para
50] [905-0-G]
NEPC Micon Ltd. and Ors. vs. Magma Leasing Ltd.
(1999) 4 SCC 53: Swantraj and Ors. vs. State of Maharashtra
C (1975) 3 SCC 322: 1974 (3) SCR 287; State of Andhra
Pradesh vs. Polamala Raju @ Rajarao (2000) 7 SCC 75:
2000 (2) Suppl. SCR 329; State of Punjab vs. Prem Sagar
and Ors. (2008) 7 sec 550: 2008 (8) SCR 574; Sangeet and
Anr. vs. State of Haryana (2013) 2 SCC 452 - relied on.
D
2.7. While the award or refusal of compensation in a
particular case may be within the Court's discretion, there
exists a mandatory duty on the Court to apply its mind
to the question in every criminal case. Application of mind
E to the question is best disclosed by recording reasons
for awarding/refusing compensation. It is axiomatic that
for any exercise involving application of mind, the Court '
ought to have the necessary material which it would
evaluate to arrive at a fair and reasonable conclusion. It
F
is also beyond dispute that the occasion to consider the
question of award of compensation would logically arise
only after the court records a conviction of the accused.
Capacity of the accused to pay which constitutes an
G important aspect of any order under Section 357 Cr.P.C.
would involve a certain enquiry albeit summary unless
the facts as emerging in the course of the trial are so clear
that the court considers it unnecessary to do so. Such
an enquiry can precede an order on sentence to enable
H the court to take a view, both on the question of sentence
ANKUSH SHIVAJI GAIKWAD v. STATE OF 871
MAHARASHTRA
and compensation that it may in its wisdom decide to A
award to the victim or his/her family. [Para 62] [912-B-F]
Maya Devi (Dead) through LRs and Ors. vs. Raj Kumari
Batra (Dead) through LRs and Ors. (2010) 9 SCC 486: 2010
(10) SCR 1113; State of Rajasthan vs. Sohan Lal and Ors. B
(2004) 5 SCC 573: 2004 (1) Suppl. SCR 480; Hindustan
Times Ltd. vs. Union of India (1998) 2 SCC 242: 1998 (1)
SCR 4; Director, Horticulture Punjab and Ors. vs. Jagjivan
Parshad (2008) 5 SCC 539: 2008 (5) SCR 851 - relied on.
c
2.8. In the present case, the trial Court and the High
Court appear to have remained oblivious to the
provisions of Section 357 Cr.P.C. The judgments under
appeal betray ignorance of the Courts below about the
statutory provisions and the duty cast upon the Courbi. D
Having regard to the facts and the circumstances of the
present case and the time lag since the offence was
committed relief is not granted u/s. 357. The courts are
cautioned to remain careful in future. A copy of this order
be forwarded to the Registrars General of the High E
Courts in the country for circulation among the Judges
.handling criminal trials and hearing appeals. [Paras 63
and 64] [912-F-H; 913-A, C-D]
Case Law Reference: F
1989 (1) SCR 941 relied on Para 10
2003 (2) SCR 69 relied on Para 11
2002 (1) SCR 1152 relied on Para 12 G
1996 (5) Suppl. SCR 300 relied on Para 13
(2006)' 14 SCALE 108 relied on Para14
H
872 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 2007 (4) SCR 253 relied on Para 14
2012 (1) SCR 145 relied on Para 15
2010 (7) SCR 703 relied on Para 16
B 1956 SCR 363 relied on Para 17
(1849) 4 Cox C. C. 55 relied on Para 18
(2000) 9 sec 120 relied on Para 19
c 1981 (3) SCR 839 relied on Para 20
AIR 1954 SC 652 relied on Para 20
(1984) 1 sec 673 relied on Para 21
D (1985) 1 sec 200 relied on Para 21
AIR 1995 SC 583 relied on Para 21
1997 (6) Suppl. SCR 168 distinguished Para 22
E 2006 (4) Suppl. SCR 633 relied on Para 23
(1981) 1 sec 101 relied on Para 26
1988 (2) Suppl. SCR 571 relied on Para 26
F 1979 (1) SCR 383 relied on Para 28
(1994) 4 sec 29 relied on Para 28
1995 (4) Suppl. SCR 301 relied on Para 28
G 2007 (4) SCR 1122 relied on Para 28
1994 (4) Suppl. SCR 528 relied on Para 30
1998 (2) Suppl. SCR 31 relied on Para 35
H (1880) 5 AC 214 referred to Para 46
ANKUSH SHIVAJI GAIKWAD v. STATE OF 873
MAHARASHTRA
2008 (2) SCR 424 relied on Para 48 A
2007 (10) SCR 245 relied on Para 49
(1999) 4 sec 53 relied on Para 49
1974 (3) SCR 287 relied on Para 52 B
2000 (2) Suppl. SCR 329 relied on Para 54
2008 (8) SCR 57 4 relied on Para 55
(2013) 2 sec 452 relied on Para 56 c
2010 (10) SCR 1113 relied on Para 57
2004 (1) Suppl. SCR 480 relied on Para 58
1998 (1) SCR 4 relied on Para 59 D
2008 (5) SCR 851 relied on Para 60
CRIMINf'.LAPPELLATE JURISDICTION: Criminal Appeal
No. 689 of 2013.
E
From the Judgment & Order dated 24.08.2010 of the High
Court of Judicature at Bombay, Bench at Aurangabad in
Criminal Appeal No. 359 of 2008.
F
M.Y. Deshmukh, Yalin M. Jagtap, Rameshwar Prasad
Goyal for the Appellant.
Shankar Chillarge, Asha Gopalan Nair for the Respondent.
G
The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. Leave granted.
2. This appeal arises out of a judgement and order dated
H
874 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 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
B conviction for the offence of murder punishable under Section
302 of the l.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
C 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
0 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.
E 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
F 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
G 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
H Nos.2 and 3 beat the deceased with fist and kicks, the appellant
ANKUSH SHIVAJI GAIKWAD v. STATE OF 875
MAHARASHTRA [T.S. THAKUR, J.]
hit the deceased with the iron pipe on the head. On account of A
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. B
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- C
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
l.P.C was registered by the police. Investigation of the case was
taken up by P.W.6-Police Sub Inspector Parihar who recorded 0
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 1.P.C. was added to the case.
E
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 F
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, G
the polic;e filed a chargesheet before the judicial Magistrate,
who, committed the appellant and co-accused to face trial for
the offence of murder punishable under Section 302 read with
Section 34 6f the 1.P.C. before the Sessions Court. Before the
H
876 SUPREME COURT REPORTS [2013) 8 S.C.R.
A Sessions Court the appellant and his co-accused pleaded not
guilty and claimed a trial.
5. The prosecution examined as many as six witnesses
including P.W.1-Mangalbai, the widow of the deceased and
B P.W.5-Ramesh, both of whom were presented as eye witnesses
to the occurrence. The remaining witnesses included P.W.3··
Dr. Kamble and P.W.6-Police Sub-Inspector Parihar. Appraisal
of the evidence adduced by the prosecution led the trial Court
to hold the appellant and his co-accused guilty for the offence
C of murder and sentenced them to imprisonment for life besides
a fine of Rs.2,000/- each and a default sentence of three months
rigorous imprisonment.
6. The appellant and his co-accused preferred Criminal
0
Appeal No.359 of 2008 before the High Court of Judicature at
Bombay, Bench at Aurangabad. The High Court has by the
judgment impugned in this appeal dismissed the appeal of the
appellant before us but allowed the same in so far as the co-
E accused are concerned. The correctness of the said judgment
and order is under challenge before us.
7. When the matter initially came up before us for hearing
on 2nd September, 2011 we issued notice to the respondent-
F State confined to the question of the nature of offence only. We
· have accordingly heard learned counsel for the parties on the
said question. The trial Court as also the High Court have, as
noticed earlier, found the appellant guilty of murder. The
question, however, is whether in the facts and circumstances
G of the case the appellant has been rightly convicted for the
capital offence and if not whether the act attributed to him would
constitute a lesser offence like culpable homicide not
amounting to murder punishable under Section 304 Part I or II
of the l.P.C.
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 877
MAHARASHTRA [T.S. THAKUR, J.]
8. On behalf of the appellant it was contended that the A
appellant's case fell within Exception 4 to Section 300 of the
l.P.C. which reads as under:
"Exception 4.- Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the B
heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a
cruel or unusual manner."
9. It was argued that the incident in question took place C
on a sudden fight without any premeditation and the act of the
appellant hitting the deceased was committed in the heat of
passion upon a sudden quarrel without the appellant having
taken undue advantage or acting in a cruel or unusual manner.
0
There is, in our opinion, considerable merit in that contention.
We say so for three distinct reasons. Firstly, because even
according to the prosecution version, there was no
premeditation in the commission of the crime. There is not even
a suggestion that the appellant had any enmity or motive to E
commit any offence against the deceased, leave alone a
serious offence like murder. The prosecution case, as seen
earlier, is that the deceased and his wife were guarding their
Jaggery crop in their field at around 10 p.m. when their dog
started barking at the appellant and his two companions who F
were walking along a mud path by the side of the field nearby.
It was the barking of the dog that provoked the appellant to beat
the dog with the rod that he was carrying apparently to protect
himself against being harmed by any stray dog or animal. The
deceased took objection to the beating of the dog without in G
the least anticipating that the same would escalate into a
serious incident in the heat of the moment. The exchange of
hot words in the quarrel over the barking of the dog led to a
sudden fight which in turn culminated in the deceased being
H
878 SUPREME COURT REPORTS [2013] 8 S.C.R.
A hit with the rod unfortunately on a vital part like the head.
Secondly, because the weapon used was not lethal nor was
the deceased given a second blow once he had collapsed to
the ground. The prosecution case is that no sooner the
deceased fell to the ground on account of the blow on the head,
B the appellant and his companions took to their heels - a
circumstance that shows that the appellant had not acted in an
unusual or cruel manner in the prevailing situation so as to
deprive him of the benefit of Exception 4. Thirdly, because
during the exchange of hot words between the deceased and
C the appellant all that was said by the appellant was that if the
deceased did not keep quiet even he would be beaten like a
dog. The use of these words also clearly shows that the
intention of the appellant and his companions was at best to
belabour him and not to kill him as such. The cumulative effect
0
of all these circumstances, in our opinion, should entitle the
appellant to the benefit of Exception 4 to Section 300 of the
l.P.C.
E 10. Time now to refer to a few decisions of this Court where
in similar circumstances this Court has held Exception 4 to
Section 300 of the l.P.C. to be applicable and converted the
offence against the appellant in those cases from murder to
culpable homicide not amounting murder. In Surinder Kumar
F v. Union Territory, Chandigarh (1989) 2 SCC 217, this Court
held that if on a sudden quarrel a person in the heat of the
moment picks up a weapon which is handy and causes injuries
out of which only one proves fatal, he would be entitled to the
benefit of the Exception provided he has not acted cruelly. This
G Court held that the number of wounds caused during the
occurrence in such a situation was not the decisive factor. What
was important was that the occurrence had taken place on
account of a sudden and unpremeditated fight and the offender
must have acted in a fit of anger. Dealing with the provision of
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 879
MAHARASHTRA [T.S. THAKUR, J.]
Exception 4 to Section 300 this Court observed: A
"..... To invoke this exception four requirements must be
satisfied, namely, (i) it was a sudden fight; (ii) there was
no premeditation; (iii) the act was done in a heat of
passion; and (iv) the assailant had not taken any undue B
advantage or acted in a cruel manner. The cause of the
quarrel is not relevant nor is it relevant who offered the
provocation or started the assault. The number of wounds
caused during the occurrence is not a decisive factor but
what is important is that the occurrence must have been C
sudden and unpremeditated and the offender must have
acted in a fit of anger. Of course, the offender must not
have taken any undue advantage or acted in a cruel
manner. Where. on a sudden quarrel. a person in the
0
heat of the moment picks up a weapon which is handy
and causes injuries. one of which proves fatal. he would
be entitled to the benefit of this exception provided he has
not acted cruettv. "
E
(emphasis supplied)
11. We may also refer to the decision of this Court in
Ghapoo Yadav and Ors. v. State of M.P. (2003) 3 SCC 528,
where this Court held that in a heat of passion there must be F
no time for the passions to cool down and that the parties had
in that case before the Court worked themselves into a fury on
account of the verbal altercation in the beginning. Apart from
the incident being the result of a sudden quarrel without
premeditation, the law requires that the offender should not have G
taken undue advantage or acted in a cruel or unusual manner
to be able to claim the benefit of Exception 4 to Section 300
IPC. Whether or not the fight was sudden, was declared by the
H
880 SUPREME COURT REPORTS [2013] 8 S.C.R.
A Court to be decided in the facts and circumstances of each
case. The following passage from the decision is apposite:
"... The help of Exception 4 can be invoked if death is
caused (a) without premeditation, (b) in a sudden fight:
B (c) without the offender's having taken undue advantage
or acted in a cruel or unusual manner; and (d) the fight
must have been with the person killed. To bring a case
within Exception 4 all the ingredients mentioned in it must
be found. It is to be noted that the 'fight' occurring in
c Exception 4 to Section 300. /PC is not defined in the /PC.
It takes two to make a fight. Heat of passion requires that
there must be no time for the passions to cool down and
in this case, the parties have worked themselves into a
D fury on account of the verbal altercation in the beginning.
A fight is a combat between two and more persons
whether with or without weapons. It is not possible to
enunciate any general rule as to what shall be deemed
to be a sudden quarrel. It is a question of fact and whether
E a quarrel is sudden or not must necessarily depend upon
the proved facts of each case. For the application of
Exception 4 It is not sufficient to show that there was a
sudden quarrel and there was no premeditation. It must
further be shown that the offender has not taken undue
F advantage or acted in cruel or unusual manner. The
expression 'undue advantage' as used in the provision
means 'unfair advantage'."
xxx xxx xxx
G
...After the injuries were inflicted the injured has fallen
down. but there is no material to show that thereafter any
injury was inflicted when he was in a helpless condition.
The assaults were made at random. Even the previous
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 881
MAHARASHTRA [TS. THAKUR, J.]
altercations were verbal and not physical. It is not the case A
of the prosecution that the accused appellants had come
prepared and armed for attacking the deceased .... This
goes to show that in the heat of passion upon a sudden
quarrel followed by a fight the accused persons had
caused injuries on the deceased, but had not acted in cruel B
or unusual manner. That being so, Exception 4 to Section
300 IPC is clearly applicable ... "
(emphasis supplied) C
12. In Sukbhir Singh v. State of Haryana (2002) 3 SCC
327, the appellant caused two Bhala blows on the vital part of
the body of the deceased that was sufficient in the ordinary
course of nature to cause death. The High Court held that the
0
appellant had acted in a cruel and unusual manner. Reversing.
the view taken by the High Court this Court held that all fatal
injuries resulting in death cannot be termed as cruel or unusual
for the purposes of Exception 4 of Section 300 IPC. In cases
where after the injured had fallen down, the appellant did not E
inflict any further injury when he was in a helpless position, it
may indicate that he had not acted in a cruel or unusual manner.
The Court observed:
"... All fatal injuries resulting in death cannot be termed F
as cruel or unusual for the purposes of not availing the
benefit of Exception 4 of Section 300 /PC. After the ·
injuries were inflicted and the injured had fallen down. the
appellant is not shown to have inflicted any other injury
upon his person when he was in a helpless position. It is G
proved that in the heat of passion upon a sudden quarrel
followed by a fight, the accused who was armed with
Bhala caused injuries at random and thus did not act in
H
882 SUPREME COURT REPORTS [2013] 8 S.C.R.
A a cruel or unusual manner."
(emphasis supplied)
13. Reference may also be made to the decision in
B Mahesh v. State of MP (1996) 10 SCC 668, where the
appellant had assaulted the deceased in a sudden fight and
after giving him one blow he had not caused any further injury
to the deceased which fact situation was held by this Court to
be sufficient to bring the case under Exception 4 to Section
C 300 of the IPC. This Court held:
"... Thus. placed as the appellant and the deceased were
at the time of the occurrence. it appears to us that the
appellant assaulted the deceased in that sudden fight
D
and after giving him one blow took to his heels. He did
not cause any other injurv to the deceased and therefore
it cannot be said that he acted in any cruel or unusual
manner. Admittedly, he did not assault PW-2 or PW-6
E who were also present also with the deceased and who
had also requested the appellant not to allow his cattle
to graze in the field of PW-1. This fortifies our belief that
the assault on the deceased was made during a sudden
•
quarrel without any premeditation. In this fact situation,
F we are of the opinion that Exception-4 to Section 300 /PC
is clearly attracted to the case of the appellant and the
offence of which the appellant can be said to be guilty
would squarely fall under Section 304 (Part-I) /PC... "
G (emphasis supplied)
14. To the same effect are the decisions of this Court in
Vadla Chandraiah v. State of Andhra Pradesh (2006) 14
SCALE 108, and Shankar Diwal Wadu v. State of
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 883
MAHARASHTRA [T.S. THAKUR, J.]
A
Maharashtra (2007) 12 SCC 518.
15. The next question then is whether the case falls under
Section 304 Part I or Part II of the IPC. The distinction between
the two parts of that provision was drawn by this Court in Alister
8
Anthony Pereira v. State of Maharashtra (2012) 2 SCC 648,
in the following words:
"..... For punishment under Section 304 Part I, the
prosecution must prove: the death of the person in c
question; that such death was caused by the act of the
accused and that the accused intended by such act to
cause death or cause such bodily injury as was likely to
cause death. As regards punishment for
Section 304 Part II, the prosecution has to prove the death D
of the person in question; that such death was caused by
the act of the accused and that he knew that such act of
his was likely to cause death ....»
16. Reference may also be made to the decision of this E
Court in Singapagu Anjaiah v. State of Andhra Pradesh (2010)
9 SCC 799 where this Court observed:
"16. In our opinion, as nobody can enter info the mind of
the accused, its intention has to be gathered from the F
weapon used. the part of the body chosen for the assault
and the nature of the injuries caused... "
(emphasis supplied)
G
17. The decision of this Court in Basdev v. The State of
PEPSU AIR 1956 SC 488, drew a distinction between motive,
intention and knowledge in the following words:
884 SUPREME COURT REPORTS [2013] 8 S.C.R.
A ".... Of course, we have to distinguish between motive,
intention and knowledge. Motive is something which
prompts a man to form an intention and knowledge is an
awareness of the consequences of the act. In many
cases intention and knowledge merge into each other
B and mean the same thing more or Jess and intention can
be presumed from knowledge. The demarcating line
between knowledge and intention is no doubt thin but it
is not difficult to perceive that they connote different
things ... "
c
18. This Court in the above decisions quoted the following
passage from Reg. v. Monkhouse (1849) 4 Cox C. C. 55
where Coleridge J. speaking for the Court observed:
D
''The inquiry as to intent is far less simple than that as to
whether an act has been committed, because you cannot
look into a man's mind to see what was passing there at
any given time. What he intends can onlv be judged of
E bv what he does or savs. and if he savs nothing. then his
act alone must guide vou to vour decision. It is a general
rule in criminal Jaw, and one founded on common sense,
that juries are to presume a man to do what is the natural
consequence of his act. The consequence is sometimes
F so apparent as to leave no doubt of the intention. A man
could not put a pistol which he knew to be loaded to
another's head, and fire it off, without intending to kill him;
but even there the state of mind of the party is most
material to be considered... "
G
(emphasis supplied)
19. In Camilo Vaz v. State ot Goa (2000) 9 SCC 1, the
accused had hit the deceased with a danda during a
ANKUSH SHIVAJI GAIKWAD v. STATE OF 885
MAHARASHTRA [T.S. THAKUR, J.]
premeditated gang-fight, resulting in the death of the victim. A
Both the Trial Court and the Bombay High Court convicted the
appellant under Section 302 l.P.C. This Court, however,
converted the conviction to one under Section 304, Part II, l.P.C.
and observed:
B
".... When a person hits another with a danda on a vital
part of the body with such a force that the person hit
meets his death, knowledge has to be imputed to the
accused. In that situation case will fall in Part II of Section
304. /PC as in the present case... " c
(emphasis supplied)
20. In Jagrup Singh v. State of Haryana (1981) 3 SCC D
616 the accused had given a blow on the head of the
deceased with the blunt side of a gandhala during a sudden
fight causing a fracture to the skull and consequent death. This
Court altered the conviction from Section 302 to Section 304,
Part II IPC placing reliance upon the decision in Chamru E
Budhwa v. State of Madhya Pradesh AIR 1954 SC 652 in which
case also the exchange of abuses had led both the parties to
use lathis in a fight that ensued in which the deceased was hit
on the head by one of the lathi blows causing a fracture of the
skull and his ultimate death. The accused was convicted for the F
offence of culpable homicide not amounting to murder under
Section 304, Part II of the IPC.
21. Reference may also be made to the decisions of this
Court in Sarabjeet Singh and Ors. v. State of Uttar Pradesh G
(1984) 1SCC673, MerDhana Sida v. State ofGujarat(1985)
1 SCC 200 and Sukhmandar Singh v. State of Punjab AIR
1995 SC 583 in which cases also the cause of death was a
fracture to the skull in a sudden fight without premeditation. The
H
886 SUPREME COURT REPORTS [2013] 8 S.C.R.
A Court altered the conviction from Section 302 IPC to Section
304, Part II of IPC.
22. Though the accused had inflicted only one injury upon
the deceased, the fact that he had attempted to stab him a
B second time was taken as an indication of the accused having
any intention to kill for the purpose of Section 304 Part I, IPC
in Kasam Abdulla Hafiz v. State of Maharashtra (1998) 1 SCC
526, where this Court observed:
c ".... Looking at the nature of injuries sustained by the
deceased and the circumstances as enumerated above
the conclusion is irresistible that the death was caused
by the acts of the accused done wifh the intention of
causing such bodily injury as is likely to cause death and
D
therefore the offence would squarely come within the /st
part of Section 304 l.P. C. The guiltv intention of the
accused to cause such bodily iniurv as is likely to cause
death is apparent from the fact that he did attempt a
E second blow though did not succeed in the same and it
somehow missed... "
(emphasis supplied)
F 23. We may lastly refer to the decision of this Court in
Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra
Pradesh (2006) 11 sec 444 where this Court enumerated
some of the circumstances relevant to finding out whether there
was any intention to cause death on the part of the accused.
G This Court observed:
"... Therefore, the court should proceed to decide the
pivotal question of intention, with care and caution, as that
will decide whether the case falls under Section 302 or
H 304 Part I or 304 Part II. Many petty or insignificant
ANKUSH SHIVAJI GAIKWAD v. STATE OF 887
MAHARASHTRA [T.S. THAKUR, J.]
matters - plucking of a fruit, straying of a cattle, quarrel A
of children, utterance of a rude word or even an
objectionable glance, may lead to altercations and group
clashes culminating in deaths. Usual motives like
revenge, greed, jealousy or suspicion may be totally
absent in such cases. There may be no intention. There B
may be no pre-meditation. In fact, there may not even be
criminality. At the other end of the spectrum, there may
be cases of murder where the accused attempts to avoid
the penalty for murder by attempting to put forth a case
that there was no intention to cause death. It is for the C
courts to ensure that the cases of murder punishable
under Section 302, are not converted into offences
punishable under Section 304 Part Ill/, or cases of
culpable homicide not amounting to murder, are treated 0
as murder punishable under Section 302. The intention
to cause death can be gathered genera/Iv from a
combination of a few or several of the following. among
other. circumstances : (i) nature of the weapon used; (ii)
whether the weapon was carried by the accused or was E
picked up from the spot: (iii) whether the blow is aimed
at a vital part of the body; (iv) the amount of force
employed in causing iniurv: (v) whether the act was in the
course of sudden quarrel or sudden fight or free for all
fight: (vi) whether the incident occurs by chance or F
whether there was any pre- meditation: (vii) whether there
was any prior enmity or whether the deceased was a
stranger: (viii) whether there was any grave and sudden
provocation. and if so. the cause for such provocation:
Ox> whether it was in the heat of passion: (x) whether the G
person inflicting the injurv has taken undue advantage
or has acted in a cruel and unusual manner: (xi) whether
the accused dealt a single blow or several blows. The
H
888 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 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 ... "
B (emphasis supplied)
24. Coming back to the case at hand, we are of the
opinion that the nature of the simple injury inflicted by the
accused, the part of the body on which it was inflicted, the
C 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. All that can be said is that
the appellant had the knowledge that the injury inflicted by him
was likely to cause the death of the deceased. The case would,
0
therefore, more appropriately fall under Section 304 Part II of
the IPC.
25. The only other aspect that needs to be examined is
E whether any compensation be awarded against the appell~nt
and in favour of the bereaved family under Section 357 of the
Code of Criminal Procedure, 1973. This aspect arises very
often and has been a subject matter of several pronouncements
of this Court. The same may require some elaboration to place
F in bold relief certain aspects that need to be addressed by
Courts but have despite the decisions of this Court remained
obscure and neglected by the Courts at different levels in this
country.
G 26. More than four decades back Krishna Iyer J. speaking
for the._Court in Maru Ram & Ors. v. Union of India and Ors.
(1981) 1 sec 107, in his inimitable style said that while social
responsibility of the criminal to restore the loss or heal the injury
is a part of the punitive exercise, the length of the prison term
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 889
MAHARASHTRA [T.S. THAKUR, J.]
is no reparation to the crippled or bereaved but is futility A
compounded with cruelty. Victimology must find fulfilment said
the Court, not through barbarity but by compulsory recoupment
by the wrong doer of the damage inflicted not by giving more
pain to the offender but by lessening the loss of the forlorn. In
Hari Singh v. Sukhbir Singh and Ors. (1988) 4 SCC 551, this B
Court lamented the failure of the Courts in awarding
compensation to the victims in terms of Section 357 (1) of the
Cr.P.C. The Court recommended to all Courts to exercise the
power available under Section 357 of the Cr.P.C. liberally so C
as to meet the ends of justice. The Court said:
" .... Sub-section (1) of Section 357 provides power to
award compensation to victims of the offence out of the
sentence of fine imposed on accused ... It is an important
0
provision but Courts have seldom invoked it. Perhaps
due to ignorance of the 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 E
compensation to victim who has suffered by the action
of accused. It may be noted that this power 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 F
forgotten in the criminal justice system. It is a measure
of responding appropriately to crime as well of 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. G
recommend to all Courts to exercise this power /iberallv
so as to meet the ends of justice in a better way.
(emphasis supplied)
H
890 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 27. The amount of compensation, observed this Court,
was to be determined by the Courts depending upon the facts
· and circumstances of each case, the nature of the crime, the
justness of the claim and the capacity of the accused to pay.
B 28. In Sarwan Singh and others v. State of Punjab (1978)
4 SCC 111, Ba/raj v. State of UP. (1994) 4 SCC 29, Baldev
Singh and Anr. v. State of Punjab (1995) 6 SCC 593, Dilip
S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. (2007) 6
SCC 528, this Court held that the power of the Courts to award
C compensation to victims under Section 357 is not ancillary to
other sentences but in addition thereto and that imposition of
fine and/or grant of compensation to a great extent must
depend upon the relevant factors apart from such fine or
compensation being just and reasonable. In Dilip S.
0
Dahanukar's case (supra) this Court even favoured an inquiry
albeit summary in nature to determine the paying capacity of
the offender. The Court said:
E ".... The purpose of imposition of fine and/or grant of
compensation to a great extent must be considered
having the relevant factors therefore in mind. It may be
compensating the person in one way or the other. The
amount of compensation sought to be imposed, thus,
F must be reasonable and not arbitrary. Before issuing a
direction to pay compensation, the capacity of accused
to pay the same must be judged. A fortiori, an enquiry in
this behalf even in a summary way may be necessary.
Some reasons, which may not be very elaborate, may
G a/so have to be assigned; the purpose being that whereas
the power to impose fine is limited and direction to pay
compensation can be made for one or the other factors
enumerated out of the same; but sub- Section (3)
of Section 357 does not impose any such limitation- and
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 891
MAHARASHTRA [T.S. THAKUR, J.]
thus, power thereunder should be exercised only in A
appropriate cases. Such a jurisdiction cannot be
exercised at the whims and caprice of a judge."
29. The long line of judicial pronouncements of this Court
8
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. C
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 o
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 E
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 F
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 of punishment, and a
division between civil and criminal law emerged, the G
victim's right to compensation was incorporated into civil
law."
30. With modern concepts creating a distinction between H
892 SUPREME COURT REPORTS [2013] 8 S.C.R.
A civil and criminal law in which civil law provides for 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
8 compensation was a civil remedy 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
C by the legislatures and the Courts alike. 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.
D
31. England was perhaps the first to adopt a separate
statutory scheme for victim compensation by the State under
the Criminal Injuries Compensation Scheme, 1964. Under the
Criminal Justice Act, 1972 the idea of payment of
E 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.
(1995) 1 sec 14 is apposite:
F
"Compensation payable by the offender was introduced in
the Criminal Justice Act 1972 which gave the Courts
powers to make an ancillary order for compensation in
addition to the main penalty in cases where 'injury', loss,
G or damage' had resulted. The Criminal Justice ;A.ct 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
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 893
MAHARASHTRA [T.S. THAKUR, J.]
fine. These developments signified a major shift in A
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 B
everv case of death. injurv. 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 C
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 even 0
greater role for compensation .. ."
(emphasis supplied)
32. In the United States of America, the Victim and E
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 F
not mandatory for the Court to award restitution in every case,
the Act demands that the Court provide its reasons for denying
the same. Section 3553(c) of Title 18 of the Act states as
follows:
G
"If the court does not order restitution or orders only partial
restitution, the court shall include in the statement the
reason thereof"
(emphasis supplied) H
894 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 33. In order to be better equipped to decide the quantum
of money to be paid in a restitution order, the United States
federal law requires that details such as the financial history of
the offender, the monetary loss caused to the victim by the
offence, etc. be obtained during a Presentence Investigation,
B which is carried out over a period of 5 weeks after an offender
is convicted.
34. Domestic/Municipal Legislation apart even the UN
C General Assembly recognized the right of victims of crimes to
receive compensation by passing a resolution titled
'Declaration on Basic Principles of Justice for Victims and
Abuse of Power, 1985'. The Resolution contained the following
provisions on restitution and compensation:
D
«Restitution
8. Offenders or third parties responsible for their
behaviour should, where appropriate, make fair restitution
E to victims, their families or dependants. Such restitution
should include the return of property or payment for the
harm or loss suffered, reimbursement of expenses
incurred as a result of the victimization, the provision of
services and the restoration of rights.
F
9. Governments should review their practices, regulations
and laws to consider restitution as an available
sentencing option in criminal cases, in addition to other
criminal sanctions.
G
10. In cases of substantial harm to the environment,
restitution, if ordered, should include, as far as possible,
restoration of the environment, reconstruction of the
infrastructure, replacement of community facilities and
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 895
MAHARASHTRA [T.S. THAKUR, J.]
reimbursement of the expenses of relocation, whenever A
such harm results in the dislocation of a community.
11. Where public officials or other agents acting in an
official or quasi-official capacity have violated national
criminal laws, the victims should receive restitution from B
the State whose officials or agents were responsible for
the harm inflicted. In cases where the Government under
whose authority the victimizing act or omission occurred
is no longer in existence, the State or Government
successor in title should provide restitution to the victims. C
Compensation
12. When compensation is not fully available from the
0
offender or other sources, States should endeavour to
provide financial compensation to:
(a) Victims who have sustained significant bodily injury
or impairment of physical or mental health as a result of E
serious crimes;
(b) The family, in particular dependants of persons who
have died or become physically or mentally
incapacitated as a result of such victimization. F
13. The establishment, strengthening and expansion of
national funds for compensation to victims should be
encouraged. Where appropriate, other funds may also be
established for this purpose, including in those cases G
where the State of which the victim is a national is not in
a position to compensate the victim for the harm."
H
896 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 35. The UN General Assembly passed a resolwtion titled
Basic Principles and Guidelines on the Right to a Remedy
and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International
Humanitarian Law, 2005 which deals with the rights of victims
B of international crimes and human rights violations. These
Principles (while in their Draft form) were quoted with approval
by this Court in State of Gujarat and Anr. v. Hon'ble High Court
of Gujarat (1998) 7 SCC 392 in the following words:
c "94. In recent years the right to reparation for victims of
violation of human rights is gaining ground. United
Nations Commission of Human Rights has circulated
draft Basic Principles and Guidelines on the Right to
D Reparation for Victims of Violation of Human Rights,
(see Annexure)."
36. Amongst others the following provisions on restitution
and compensation have been made:
E
"12. Restitution shall be provided to reestablish the
situation that existed prior to the violations of human
rights or international humanitarian law. Restitution
requires inter alia, restoration of liberty, family life
F citizenship, return to one's place of residence, and
restoration of employment or property.
13. Compensation shall be provided for any
economically assessable damage resulting from
G violations of human rights or international humanitarian
law, such as :
(a) Physical or mental harm, including pain, suffering and
emotional distress;
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF- 897
MAHARASHTRA [T.S. THAKUR, J.]
(b) Lost opportunities including education; A
(c) Material damages and loss of earnings, including
loss of earning potential;
(d) Harm to reputation or dignity; B
(e) Costs required for legal or expert assistance,
medicines and medical services."
37. Back home the Criminal Procedure Code of 1898 C
contained a provision for restitution in the form of Section 545,
which stated in sub-clause 1(b) that the Court may direct
"payment to any person of compensation for any loss or injury
caused by the offence when substantial compensation is, in the
opinion of the Court, recoverable by such person in a Civil D
Court".
38. The Law Commission of India in its 41st Report
submitted in 1969 discussed Section 545 of the Cr.P.C. of
E
1898 extensively and stated as follows:
"46.12. Under clause (b) of sub-sec. (1) of Section 545,
the Court may direct "payment to any person of
compensation for any loss or injury caused by the
F
offence when substantial compensation is, in the opinion
of the Court, recoverable by such person in a Civil Court."
The significance of the requirement that compensation
should be recoverable in a Civil Court is that the act
which constitutes the offence in question should also be G
a tort. The word "substantial" appears to have been used
to exclude cases where only nominal damages would be
recoverable. We think it is hardly necessary to
H
898 SUPREME COURT REPORTS [2013] 8 S.C.R.
A emphasise this aspect. since in any event it is purely
within the discretion of the Criminal Courts to order or not
to order payment of compensation. and in practice. they
are not particularly liberal in utilizing this provision. We
propose to omit the word "substantial" from the clause."
B
(emphasis supplied)
39. On the basis of the recommendations made by the Law
Commission in the above report, the Government of India
C introduced the Criminal Procedure Code Bill, 1970, which
aimed at revising Section 545 and introducing it in the form of
Section 357 as it reads today. The Statement of Objects and
Reasons underlying the Bill was as follows:
D
"Clause 365 [now s.357] which corresponds to section
545 makes provision for payment of compensation to
victims of crimes. At present such compensation can be
ordered only when the Court imposes a fine the amount
E is limited to the amount of fine. Under the new provision,
compensation can be awarded irrespective of whether the
offence is punishable with fine and fine is actually
imposed, but such compensation can be ordered only if
the accused is convicted. The compensation should be
F payable for any loss or injury whether physical or
pecuniary and the Court shall have due regard to the
nature of injury, the manner of inflicting the same. the
capacity of the accused to pay and other relevant factors."
G (emphasis supplied)
40. As regards the need for Courts to obtain
comprehensive details regarding the background of the offender
for the purpose of sentencing, the Law Commission in its 48th
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 899
MAHARASHTRA [T.S. THAKUR, J.]
Report on 'Some Questions Under the Code of Criminal A
Procedure Bill, 1970' submitted in 1972 discussed the matter
in some detail, stating as follows:
"45. It is now being increasingly recognised that a rational
and consistent sentencing policy requires the removal of B
several deficiencies in the present system. One such
deficiency is a lack of comprehensive information as to
the characteristics and background of the offender.
The aims of sentencing-themselves obscure- C
become all the more so in the absence of
comprehensive information on which the correctional
process is to operate. The public as well as the as the
courts themselves are in the dark about judicial approach
0
in this regard.
We are of the view that the taking of evidence as
to the circumstances relevant to sentencing should be
encouraged, and both the prosecution and the accused E
should be allowed to cooperate in the process. "
(emphasis supplied)
41. The Cr.P.C. of 1973 which incorporated the changes F
proposed in the said Bill of 1970 states in its Objects and
Reasons that s.357 was "intended to provide relief to the
proper sections of the community" and that the amended CrPC
empowered the Court to order payment of compensation by the
accused to the victims of crimes "to a larger extent" than was G
previously permissible under the Code. The changes brought
about by the introduction of s.357 were as follows:
(i) The word "substantial" was excluded.
H
900 SUPREME COURT REPORTS [2013] 8 S.C.R.
A (ii) A new sub-section (3) was added which provides for
payment of compensation even in cases where the fine
does not form part of the sentence imposed.
(iii) Sub-section (4) was introduced which states that an
B order awarding compensation may be made by an
Appellate Court or by the High Court or Court of Session
when exercising its powers of revision.
42. The amendments to the Cr.P.C. brought about in 2008
C focused heavily on the rights of victims in a criminal trial,
particularly in trials relating to sexual offences. Though the 2008
amendments left Section 357 unchanged, they introduced
Section 357 A under which the Court is empowered to direct
the State to pay compensation to the victim in such cases
0
where "the compensation awarded under Section 357 is not
adequate for such rehabilitation, or where the case ends in
acquittal or discharge and the victim has to be rehabilitated."
Under this provision, even if the accused is not tried but the
E victim needs to be rehabilitated, the victim may request the
State or District Legal Services Authority to award him/her
compensation. This provision was introduced due to the
recommendations made by the Law Commission of India in its
152nd and 154th Reports in 1994 and 1996 respectively.
F
43. The 154th Law Commission Report on the CrPC
devoted an entire chapter to 'Victimology' in which the growing
emphasis on victim's rights in criminal trials was discussed
extensively as under:
G
"1. Increasingly the attention of criminologists,
penologists and reformers of criminal justice system has
been directed to victimology, control of victimization and
protection of victims of crimes. Crimes often entail
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 901
MAHARASHTRA [T.S. THAKUR, J.]
substantive harms to people and not merely symbolic A
harm to the social order. Consequently the needs and
rights of victims of crime should receive priority attention
in the total response to crime. One recognized method
of protection of victims is compensation to victims of
crime. The needs of victims and their family are B
extensive and varied.
xx xx xx xx xx
9. 1 The principles of victimology has foundations in C
Indian constitutional jurisprudence. The provision on
Fundamental Rights (Part /II) and Directive Principles of
State Policy (Part IV) form the bulwark for a new social
order in which social and economic justice would
0
blossom in the national life of the country (Article 38).
Article 41 mandates inter alia that the State shall make
effective provisions for "securing the right to public
assistance in cases of disablement and in other cases
of undeserved want." So also Article 51-A makes it a E
fundamental duty of every Indian citiien, inter alia 'to
have compassion for living creatures' and to 'develop
humanism'. If emphatically interpreted and imaginatively
expanded these provisions can form the constitutional
underpinnings for victimology. F
9. 2 However, in India the criminal law provides
compensation to the victims and their dependants only
in a limited manner. Section 357 of the Code of Criminal
Procedure incorporates this concept to an extent and G
empowers the Criminal Courts to grant compensation to
the victims.
xx xx xx xx
H
902 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 11. In India the principles of compensation to crime
victims need to be reviewed and expanded to cover all
cases. The compensation should not be limited only to
fines, penalties and forfeitures realized. The State should
accept the principle of providing assistance to victims out
B of its own funds ... "
44. The question then is whether the plenitude of the power
vested in the Courts under Section 357 & 357-A.
C notwithstanding, the Courts can simply ignore the provisions or
neglect the exercise of a power that is primarily meant to be
exercised for the benefit of the victims of crimes that are so
often committed though less frequently punished by the Courts.
In other words, whether Courts have a duty to advert to the
0 question of awarding compensation to the victim and record
reasons while granting or refusing relief to them?
45. The language of Section 357 Cr.P.C. at a glance may
not suggest that any obligation is cast upon a Court to apply
E its mind to the question of compensation. Sub-section (1) of
s.357 states that the Court "may" order for the whole or any part
of a fine recovered to be applied towards compensation in the
following cases:
F (i) To any person who has suffered loss or injury by the
offence, when in the opinion of the Court, such
compensation would be recoverable by such person in a
Civil Court.
G (ii) To a person who is entitled to recover damages under
the Fatal Accidents Act, when there is a conviction for
causing death or abetment thereof.
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 903
MAHARASHTRA [T.S. THAKUR, J.]
(iii) To a bona fide purchaser of property, which has A
become the subject of theft, criminal misappropriation,
criminal breach of trust, cheating, or receiving or retaining
or disposing of stolen property, and which is ordered to
be restored to its rightful owner.
B
46. Sub-section (3) of Section 357 further empowers the
Court by stating that it "may" award compensation even in such
cases where the sentence imposed does not include a fine.
The legal position is, however, well-established that cases may
arise where a provision is mandatory despite the use of C
language that makes it discretionary. We may at the outset,
refer to the oft quoted passage from Julius v. Lord Bishop of
Oxford (1880) 5 AC 214 where the Court summed up the legal
position thus:
D
"The words 'it shall be lawful' are not equivocal. They are
plain and unambiguous. They are words merely making
that legal and possible which there would otherwise be
no right or authority to do. They confer a faculty or power E
and they do not of themselves do more than confer a
faculty or power. But there may be something in the
nature of the thing empowered to be done, something in
the object for which it is to be done, something in the title
of the person or persons for whose benefit the power is F
to be exercised, which may couple the power with a duty,
and make it the duty of the person in whom the power is
reposed, to exercise that power when called upon to do
so... "
G
47. There is no gainsaying that Section 357 confers a
power on the Court in so far as it makes it "legal and possible
which there would otherwise be no right or authority to do" viz.
to award compensation to victims in criminal cases. The
question is whether despite the use of discretionary language H
904 SUPREME COURT REPORTS [2013] 8 S.C.R.
A such as the word "may", there is "something" in the nature of
the power to award compensation in criminal cases, in the
object for which the power is conferred or in the title of the
persons for whose benefit it is· to be exercised which, coupled
with the power conferred under the provision, casts a duty on
8 the Court to apply its mind to the question of exercise of this
power in every criminal case.
48. In Smt. Bachahan Devi and Anr. v. Nagar Nigam,
C Gorakhpur and Anr. AIR 2008 SC 1282, this Court while
dealing with the use of the word "may" summoned up the legal
position thus:
"... It is well-settled that the use of word ·may' in a statutory
provision would not by itself show that the provision is
D
directory in nature. In some cases, the legislature may
use the word 'may' as a matter of pure conventional
courtesy and yet intend a mandatory force. In order,
therefore, to interpret the legal import of the word ·may',
E the court has to consider various factors, namely, the
object and the scheme of the Act. the context and the
background against which the words have been used, the
purpose and the advantages sought to be achieved by
the use of this word, and the like. It is equally well-settled
F that where the word ·may' involves a discretion coupled
with an obligation or where it confers a positive benefit to
a general class of subjects in a utility Act. or where the
court advances a remedy and suppresses the mischief,
or where giving the words directory significance would
G defeat the very object of the Act. the word 'may' should
be interpreted to convey a mandatory force ... "
(emphasis supplied)
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 905
MAHARASHTRA [T.S. THAKUR, J.]
49. Similarly in Dhampur Sugar Mills Ltd. v. State of U. A
P. and Ors. (2007) 8 SCC 338, this Court held that the mere
use of word.'may' or 'shall' was not conclusive. The question
whether a particular provision of a statute is directory or
mandatory, held the Court, can be resolved by ascertaining the
intention of the Legislature and not by looking at the language B
in which the provision is clothed. And for finding out the
legislative intent, the Court must examine the scheme of the Act,
purpose and object underlying the provision, consequences
likely to ensue or inconvenience likely to result if the provision C
is read one way or the other and many more considerations
relevant thereto.
50. Applying the tests which emerge from the above cases
to Section 357, it appears to us that the provision confers a
0
power coupled with a duty on the Courts to apply its mind to
the question of awarding compensation in every criminal case.
We say so because in the background and context in which it
was introduced, the power to award compensation was
intended to reassure the victim that he or she is not forgotten E
in the criminal justice system. The victim would remain forgotten
in the criminal justice system if despite Legislature having gone
so far as to enact specific provisions relating to victim
compensation, Courts choose to ignore the provisions
altogether and do not even apply their mind to the question of F
compensation. It follows that unless Section 357 is read to
confer an obligation on Courts to apply their mind to the
question of compensation, it would defeat the very object
behind the introduction of the provision.
G
51. If application of mind is not considered mandatory, the
entire provision would be rendered a dead letter. It was held
in NEPC Micon Ltd. and Ors. v. Magma Leasing Ltd. (1999)
4 sec 253, albeit in the context of s.138 of the Negotiable
H
906 SUPREME COURT REPORTS [2013] 8 S.C.R
A Instruments Act that even in regard to a penal provision, any
interpretation, which withdraws the life and blood of the
provision and makes it ineffective and a dead letter should be
avoided.
B 52. Similarly in Swantraj and Ors. v. State of Maharashtra
(1975) 3 SCC 322, this Court speaking through Justice Krishna
Iyer held:
"1. Every legislation is a social document and judicial
c construction seeks to decipher the statutory mission,
language permitting, taking the cue from the rule in
Heydon's case of suppressing the evil and advancing the
remedy... "
D 53. The Court extracted with approval the following
passage from Maxwell on Interpretation of Statutes:
"There is no doubt that 'the office of the Judge is, to make
such construction as will suppress the mischief, and
E
advance the remedy, and to suppress all evasions for the
continuance of the mischief.' To carry out effectually the
object of a statute, it must be so construed as to defeat
all attempts to do, or avoid doing, in an indirect or
F circuitous manner that which it has prohibited or enjoined
: quando a/iquid prohibetur, prohibetur et omne per quod
devenitur ad illud."
54. This Court has through a line of cases beginning with
G Hari Singh's case (supra) held that the power to award
compensation under Section 357 is not ancillary to other
sentences but in addition thereto. It would necessarily follow that
the Court has a duty to apply its mind to the question of awarding
compensation under Section 357 too. Reference may also be
H made to the decision of this Court in State of Andhra Pradesh
ANKUSH SHIVAJI GAIKWAD v. STATE OF 907
MAHARASHTRA [TS. THAKUR, J.]
v. Polamala Raju@ Rajarao (2000) 7 SCC 75 where a three- A
judge bench of this Court set aside a judgment of the High Court
for non-application of mind to the question of sentencing. In that
case, this Court reprimanded the High Court for having reduced
the sentence of the accused convicted under Section 376, IPC
from 10 years imprisonment to 5 years without recording any B
reasons for the same. This Court said:
"... We are of the considered opinion that it is an obligation
of the sentencing court to consider all relevant facts and C
circumstances bearing on the question of sentence and
impose a sentence commensurate with the gravity of the
offence...
xx xx xx xx
D
... To say the least, the order contains no reasons, much
less "special or adequate reasons". The sentence has
been reduced in a rather mechanical manner without
proper application of mind... " E
55. In State of Punjab v. Prem Sagar and Ors. (2008) 7
SCC 550 this Court stressed the need for greater application
of mind of the Courts in the field of sentencing. Setting aside
the order granting probation by the High Court, the Court stated F
as follows:
"30 .. .. The High Court does not rest its decision on any
legal principle. No sufficient or cogent reason has been
arrived. G
31. We have noticed the development of law in this
behalf in other countries only to emphasise that the courts.
while imposing sentence must take into consideration the
H
908 SUPREME COURT REPORTS [2013] 8 S.C.R.
A principles applicable thereto. It requires
application of mind. The purpose of imposition of
sentence must also be kept in mind... "
56. Although speaking in the context of capital punishment,
B the following observation of this Court in Sangeet & Anr. v.
State of Haryana (2013) 2 sec 452 could be said to apply to
other sentences as well, particularly the award of compensation
to the victim:
c "In the sentencing process, both the crime and the criminal
are equally important. We have unfortunately, not taken the
sentencing process as seriously as it should be with the
result that in capital offences, it has become judge-centric
sentencing rather than principled sentencing."
D
57. Section 357 Cr.P.C. confers a duty on the Court to
apply its mind to the question of compensation in every criminal
case. It necessarily follows that the Court must disclose that it
E has applied its mind to this question in every criminal case. In
Maya Devi (Dead) through LRs and Ors. v. Raj Kumari Batra
(Dead) through LRs and Ors. (2010) 9 SCC 486, this Court
held that disclosure of application of mind is best demonstrated
by recording reasons in support of the order or conclusion. The
F Court observed:
"28. ... There is nothing like a power without any limits or
constraints. That is so even when a court or other
authority may be vested with wide discretionary power, for
G even discretion has to be exercised only along wel/-
recognised and sound juristic principles with a view to
promoting fairness, inducing transparency and aiding
equity.
H 29. What then are the safeguards against an arbitrary
ANKUSH SHIVAJI GAIKWAD v. STATE OF 909
MAHARASHTRA [T.S. THAKUR, J.]
exercise of power? The first and the most effective check A
against any such exercise is the well-recognised legal
principle that orders can be made only after due
application of mind. Application of mind brings
reasonableness not only to the exercise of power but to
the ultimate conclusion also. Application of mind in turn B
is best demonstrated bv disclosure of mind. And
disclosure is best demonstrated bv recording reasons in
support of the order or conclusion.
30. Recording of reasons in cases where the order is C
subject to further appeal is very important from yet
another angle. An appellate court or the authoritv ought
to have the advantage of examining the reasons that
prevailed with the court or the authority making the order.
0
Conversely, absence of reasons in an appealable order
deprives the appellate court or the authority of that
advantage and casts an onerous responsibility upon it
to examine and determine the question on its own ... "
E
(emphasis supplied)
58. Similarly, in State of Rajasthan v. Sohan Lal and Ors.
(2004) 5 SCC 573, this Court emphasised the need for
reasons thus: F
"... The giving of reasons for a decision is an essential
attribute of judicial and judicious disposal of a matter
before courts, and which is the only indication to know
about the manner and quality of exercise undertaken, as G
also the fact that the court concerned had really applied
its mind... "
59. In Hindustan Times Ltd. v. Union of India (1998) 2
sec 242 this Court stated that the absence of reasons in an H
910 SUPREME COURT REPORTS [2013] 8 S.C.R.
A order would burden the appellate court with the responsibility
of going through the evidence or law for the first time. The Court
observed :
"... In our view, the satisfaction which a reasoned Judgment
B gives to the losing party or his lawyer is the test of a good
Judgment. Disposal of cases is no doubt important but
quality of the judgment is equally, if not more, important.
There is no point in shifting the burden to the higher Court
either to support the judgment by reasons or to consider
c the evidence or law for the first time to see if the judgment
needs a reversal... "
60. In Director, Horticulture Punjab and Ors. v. Jagjivan
D Parshad (2008) 5 SCC 539, this Court stated that the spelling
out of reasons in an order is a requirement of natural justice:
"... Reasons substitute subjectivity by objectivity. The
emphasis on recording reasons is that if the decision
reveals the "inscrutable face of the sphinx", it can, by its
E
silence, render it virtually impossible for the courts to
perform their appellate function or exercise the power of
judicial review in adjudging the validity of the decision.
Right to reason is an indispensable part of a sound
F judicial system. Another rationale is that the affected
party can know why the decision has gone against him.
One of the salutary requirements of natural justice is
spelling out reasons for the order made, in other words,
a speaking-out. The "inscrutable face of the sphinx" is
G ordinarily incongruous with a judicial or quasi-judicial
performance... "
61. In Maya Devi's case (supra), this Court summarised
the existing case law on the need for reasoned orders as
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 911
MAHARASHTRA [TS. THAKUR, J.]
follows: A
"22. The juristic basis underlying the requirement that
courts and indeed all such authorities, as exercise the
power to determine the rights and obligations of
individuals must give reasons in support of their orders B
has been examined in a long line of decisions rendered
by this Court. In Hindustan Times Ltd. v. Union of India
(1998) 2 sec 242 the need to give reasons has been
held to arise out of the need to minimise chances of
arbitrariness and induce clarity.
c
23. In Arun v. Inspector General of Police (1986) 3 SCC
696 the recording of reasons in support of the order
passed by the High Court has been held to inspire public D
confidence in administration of justice, and help the Apex
Court to dispose of appeals filed against such orders.
24. In Union of India v. Jai Prakash Singh (2007) 10 SCC
712, reasons were held to be live links between the mind E
of the decision-maker and the controversy in question as
also the decision or conclusion arrived at.
25. In Victoria Memorial Hall v. Howrah Ganatantrik
Nagrik Samity (2010) 3 sec 732, reasons were held to F
be the heartbeat of every conclusion, apart from being
an essential feature of the principles of natural justice,
that ensure transparency and fairness, in the decision-
making process.
G
26. In Ram Phal v. State of Haryana (2009) 3 SCC 258,
giving of satisfactory reasons was held to be a
requirement arising out of an ordinary man's sense of
justice and a healthy discipline for all those who exercise
power over others. H
912 SUPREME COURT REPORTS [2013] 8 S.C.R.
A 27. In Director, Horticulture, Punjab v. Jagjivan Parshad
(2008) 5 sec 539, the recording of reasons was held to
be indicative of application of mind specially when the
order is amenable to further avenues of challenge."
B 62. To sum up: While the award or refusal of compensation
in a particular case may be within the Court's discretion, there
exists a mandatory duty on the Court to apply its mind to the
question in every criminal case. Application of mind to the
question is best disclosed by recording reasons for awarding/
C refusing compensation. It is axiomatic that for any exercise
involving application of mind, the Court ought to have the
necessary material which it would evaluate to arrive at a fair
and reasonable conclusion. It is also beyond dispute that the
D occasion to consider the question of award of compensation
would logically arise only after the court records a conviction
of the accused. Capacity of the accused to pay which
constitutes an important aspect of any order under Section 357
Cr.P.C. would involve a certain enquiry albeit summary unless
E of course the facts as emerging in the course of the trial are
so clear that the court considers it unnecessary to do so. Such
an enquiry can precede an order on sentence to enable the
court to take a view, both on the question of sentence and
compensation that it may in its wisdom decide to award to the
F victim or his/her family.
63. Coming then to the case at hand, we regret to say that
the trial Court and the High Court appear to have remained
oblivious to the provisions of Section .357 Cr.P.C. The
G judgments under appeal betray ignorance of the Courts below
about the statutory provisions and the duty cast upon the Courts.
Remand at this distant point of time does not appear to be a
good option either. This may not be a happy situation but having
regard to the facts and the circumstances of the case and the
H
ANKUSH SHIVAJI GAIKWAD v. STATE OF 913
MAHARASHTRA [TS. THAKUR, J.]
time lag since the offence was committed, we conclude this A
chapter in the hope that the courts remain careful in future.
64. In the result, we allow this appeal but only to the extent
that instead of Section 302 I PC the appellant shall stand
convicted for the offence of culpable homicide not amounting B
to murder punishable under Section 304 Part II IPC and
sentenced to undergo rigorous imprisonment for a period of five
years. The fine imposed upon the appellant and the default
sentence awarded to him shall remain unaltered. The appeal
is disposed of in the above terms in modification of the order C
passed by the Courts below. A copy of this order be forwarded
to the Registrars General of the High Courts in the country for
circulation among the Judges handling criminal trials and
hearing appeals.
D
K.K.T. Appeal disposed of.
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