# 8 S.C.R. 863 ANKUSH SHIVAJI GAIKWAD v. STATE OF MAHARASHTRA

- **Citation:** [2013] 8 S.C.R. 863
- **Court:** Supreme Court of India
- **Decided:** 2013-05-03
- **Case number:** Criminal Appeal No. 689 of 2013
- **Bench:** T.S. Thakur, Gyan Sudha Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/8-s-c-r-863-ankush-shivaji-gaikwad-v-state-of-maharashtra-29381
- **Pages:** 51

## Headnote

Penal Code, 1860 - s.300 Exception 4 ands. 304 (Part
II) - Trial and conviction uls. 302134 by courts below - Held:
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.
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
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
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
directed to be forwarded to the Registrar General of High
Courts for circulation among judges handling criminal trials
and appeals.
863
A
B
c
D
E
F
G
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,
0
confirmed the conviction and sentence of the appellantaccused 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
F
G
record reasons while granting or refusing relief to them
and whether compensation u/s. 357 Cr.P.C. was required
to be awarded.
Disposing of the appeal, the Court
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

## Text

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(2013] 8 S.C.R. 863
ANKUSH SHIVAJI GAIKWAD
V.
STATE OF MAHARASHTRA
(Criminal Appeal No. 689 of 2013)
MAY 3, 2013
[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:
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.
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
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
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
directed to be forwarded to the Registrar General of High
Courts for circulation among judges handling criminal trials
and appeals.
863
A
B
c
D
E
F
G
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,
0
confirmed the conviction and sentence of the appellantaccused 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
F
G
record reasons while granting or refusing relief to them
and whether compensation u/s. 357 Cr.P.C. was required
to be awarded.
Disposing of the appeal, the Court
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
restore the loss or heal the injury is a part of the punitive
exercise, the length of the prison term is no reparation
F
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. Subsection (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
0 causing death or abetment thereof. (iii) To a bona fide
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] [902E-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] [890C-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:
1989 (1) SCR 941
relied on
Para 10
2003 (2) SCR 69
relied on
Para 11
2002 (1) SCR 1152
relied on
Para 12
1996 (5) Suppl. SCR 300
relied on
Para 13
(2006)' 14 SCALE 108
relied on
Para14
F
G
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.
M.Y. Deshmukh, Yalin M. Jagtap, Rameshwar Prasad
F
Goyal for the Appellant.
Shankar Chillarge, Asha Gopalan Nair for the Respondent.
The Judgment of the Court was delivered by
G
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.1Mangalbai 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.1C
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.
4. Post-mortem examination of the deceased revealed a
contusion behind his right ear, a contusion on the right arm and
E
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.
0
6. The appellant and his co-accused preferred Criminal
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 coE 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 respondentF
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
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[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
0
belabour him and not to kill him as such. The cumulative effect
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
MAHARASHTRA [T.S. THAKUR, J.]
Exception 4 to Section 300 this Court observed:
879
" ..... To invoke this exception four requirements must be
satisfied, namely, (i) it was a sudden fight; (ii) there was
A
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. "
(emphasis supplied)
E
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
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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:
B
c
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E
F
G
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" ... The help of Exception 4 can be invoked if death is
caused (a) without premeditation, (b) in a sudden fight:
(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
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
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
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
advantage or acted in cruel or unusual manner. The
expression 'undue advantage' as used in the provision
means 'unfair advantage'."
xxx
xxx
xxx
... 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
ANKUSH SHIVAJI GAIKWAD v. STATE OF
881
MAHARASHTRA [TS. THAKUR, J.]
altercations were verbal and not physical. It is not the case
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
or unusual manner. That being so, Exception 4 to Section
300 IPC is clearly applicable ... "
A
B
(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
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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:
D
" ... 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
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)
H
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
ANKUSH SHIVAJI GAIKWAD v. STATE OF
MAHARASHTRA [T.S. THAKUR, J.]
Maharashtra (2007) 12 SCC 518.
883
15. The next question then is whether the case falls under
Section 304 Part I or Part II of the IPC. The distinction between
A
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)
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:
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A
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c
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884
SUPREME COURT REPORTS
[2013] 8 S.C.R.
" .... 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
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 ... "
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:
''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
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
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 ... "
(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:
" .... 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 ... "
(emphasis supplied)
B
c
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
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[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
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" .... 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
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
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:
H
" ...