ASSIGNMENT 2

PRAGYA PANKAJ JAISWAL

SECTION- A

COURSE- LAW OF CRIME

PRN- 19010421058

ACADEMIC YEAR-2020-2021
CASE LAW- ANKUSH SHIVAJI GAIKWAD V. STATE OF MAHARASHTRA
(2013) 6 SCC 770

Q 1.What is a landmark Judgement? According to you the present case can fit or
cannot fit in the criteria of landmark Judgement? Give your reasoning elaborately.

Ans:- Basically landmark judgement or a landmark decision is the one which establishes a
new legal principle or concept. Or it may also change the meaning of existing laws.
Landmark Judgement is a leading decision over all. It reflects upon a specific area especially
by Supreme Courts. Landmark Judgement changes the entire area of looking into that
specific section involved. They usually have historical and legal significance. Most
significant cases become the ones which have a great lasting period on application of certain
law especially for individual rights and liberties. This usually force the government to amend
the act. Any decision that is notable or often cited in many such cases or effectively
summarizes a particular topic.

For example:- Justice K.S. Puttuswamy (Retd.) and anr. V. Union of India & ors where the
court held that all matters relating to an individual cannot be classified as inherent part of
right to privacy and only those matters over which there would be a reasonable expectation
of privacy are protected by Article 21. The Five-Judge Constitutional Bench of the Apex
Court though upheld the constitutional validity of Aadhaar struck down provisions which
rendered it mandatory to link Aadhaar number with Bank Accounts, cell phone connections
and school admissions.

According to me, the case falls under the ambit of landmark Judgement because as the Trial
Court and High Court did not notice or realized regarding the Section 357 Cr. P.C. They
totally ignored the statutory provisions and the duty that cast upon the courts. The Supreme
Court has reversed the decisions of other courts and categorically said that instead of Section
302 IPC the appellant shall stand convict for the offence of culpable homicide not amounting
to murder under section 304 part 2 IPC because the accused was not having any intention to
kill the deceased, he was only having knowledge that his iron rod can harm him in a very bad
way. Thus he was sentenced under culpable homicide. Thus this case showcases as a
precedent for other cases. And thus we can conclude that it falls under the ambit of landmark
judgement.

Q 2. What are the issues involved in the case and from the judgement how you
have drawn these issues? Explain by referring to those specific portions of the
Judgement.

Ans:- ISSUE

1. Whether the appellant is convict for the act of murder and if he is not so for what
offence is he liable for?

Explanation:- This issue can be derived from paragraph 7 of the given case which
directly states that the state is confined to the question of the nature of offence only. They
have also heard the learned counsel for the parties on the said question. The Trial Court
as well as the High Court have found the appellant guilty of murder. The question in this
case was whether the convict was rightly given the punishment of capital offence and if
not then whether his act would be regarded as some lesser punishment like culpable
homicide not amounting to murder punishable under Section 304 Part I or II of the I.P.C.
According to me, it is a big issue because we can see that the accused was not having any
intention to kill the deceased. It only happened due to the heat of words and thus it has
become an important issue that whether it has to be treated as an murder or culpable
homicide.

2. Whether the appellant is liable for lesser offence that is culpable homicide not
amounting to murder punishable under Section 304 Part I and II of IPC?
Explanation:- This issue is derived from paragraph 15 from the given judgement. It
specifically states that whether it should come under the ambit of section 304 part 1
or 2 of the section. According to me, it’s a valid issue and a strong point of judgement
as the accused has no intention to kill the person but only has knowledge that the
weapon he is using not only harms a person but also kills him. And so, it became a
essential issue to decide that whether he will fall under part 1 or part 2.
 3. Whether the court have a duty to apply mind to the question of awarding
compensation to the victim and record reasons for granting or refusing compensation
to them?

Explanation:- This issue has been derived from paragraph 25 from the given judgement that
whether the compensation should be given in the case or not. It becomes an important issue
because after all the court is the one who has to apply their minds whether the victim should
be compensated or not as mentioned in section 357 of Crpc.

Q 3. Are there any rules set out in the present case?

Ans:- There is a mention of Section 357 which categorically states the court to award
compensation to the victim while passing the judgemrnt of conviction and also the court may
order the accused to pay some amount of money by way of compensation for the acts of
himby which the victim has suffered. This power of the courts to award compensation is not
ancillary to other sentences but it is in addition thereto. The amount of compensation that has
to be given to the victim by the accused was completely at the discretion of the court and 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.

Following are the points required to see whether it lies under 357 or not is as follows:-

1.in defraying the expenses properly incurred in the prosecution; in the payment to any
person of compensation for any loss or injury caused by the offence, when compensation is,
in the opinion of the Court, recoverable by such person in a Civil Court;

2. When any person is convicted of any offence for having caused the death of another
person or of having abetted the commission of such an offence, in paying compensation to
the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover
damages from the person sentenced for the loss resulting to them from such death;

3. When any person is convicted of any offence which includes theft, criminal
misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or
retained, or of having voluntarily assisted in disposing of, stolen property knowing or having
reason to believe the same to be stolen in compensating any bona fide purchaser of such
property for the loss of the same if such property is restored to the possession of the person
entitled thereto.

These are some of the necessary requirements that has to be seen and thus becomes an
important rule. This act was done as a social responsibility of the criminal to restore the loss
and the lengh of the prison is no reparation but it is futility was compounded with cruelty.
Victimology should be fulfilled and the accused should not seen as giving more pain but by
minimizing the loss. It has to meet the ends of justice. This section provided power to award
compensation to victims out of the sentence of fine imposed on accused by the court. This act
was done to reassure the victim that he or she is not forgotten in the criminal justice system.
It was a constructive approach in our criminal justice system. Putting light onto this case, the
courts have forgotten to give compensation and also did not give a valid reason as to why.
But due to the circumstances and time lag between the case and the offence which was
committed the courts did not restore the loss and states to be careful in future.

Q 4. Do the case analysis in your own words/expressions.

Ans:- The appellant that is Ankush Shivaji Gaikwad has filed a complaint to reverse the
decision of lower court and states that it does not amount to murder and is a incident that
should fall under the ambit of culpable homicide not amounting to murder as he was not
having any intention to kill the deceased. The issue arises over an heated argument between
the victim and the accused when the victim dog barks over the accused and it made him
angry and he hit the dog with an iron rod. This created an heated argument and both started
fighting and in the heat of the moment the accused hit the victim with an iron rod and than
ran away. As he was beaten by such a rod he directly falls on the ground. Assault was made
randomly. It is not a case of murder in which the offender has come with straight forward
planning and execution and thus attacked a person. It just happened in the heat of the
argument and short temper which resulted in causing injuries to the deceased but not acted in
a cruel manner. So this shows that it falls under the ambit of culpable homicide not
amounting to murder as he has no intention to kill the person and it all happen in the heat of
the moment. . If we analysis the case we can see that opinion that the nature of the simple
injury inflicted by the accused, the part of the body on which it was inflicted, the weapon
used to inflict the same and the circumstances in which the injury was inflicted do not
suggest that the appellant had the intention to kill the deceased. We can only put forth that
the accused was having knowledge that the injury inflicted by him can cause death to the
victim. Thus it has a strong point to fall under Section 357 of the Code of Criminal
Procedure, 1973. This case in not the first case similar to the facts but there are several
pronouncements of this court. Another point to note down is whether the compensation
should be given or not, and if given to what amount. Here the court stated that the court has
to apply their own mind and look into the facts and circumstances of the case because the
victim has suffered grevious injury and there have been hospital and travel expenses must be
paid by the accuser.

Q 5. What is final Outcome of the case?

Ans:- To sum up, we can say that to award or to refuse the compensation in a particular case
is completely at the discretion of the court but then the court has to apply their mind and give
a reason as to why they have given compensation or rejected the appeal. And for this to
exercise they need to have necessary material so that they can evaluate fairly and in a
reasonable manner. The court has a duty to also see whether the convict has the capacity to
pay the compensation and give a place in criminal justice system. It also precede an order on
sentence to enable the court to take a view as to whether the compensation awarded to the
victim or his/her family.

Bringing back a light on this case, the trial court and the high court was careless as to the
point of giving compensation under the provisions of Section 357 of Crpc. The courts further
says that they regret to the decision and due to the facts and circumstances and the time lag
since the offence was committed. They conclude by saying to remain careful in future.

Last but not the least, the court allowed this appeal to the extent that instead of Section 302
IPC the appellant shall stand convicted for the 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. The fine imposed upon the appellant and the default
sentence awarded to him shall remain unaltered. And a copy of this judgement should be
circulated to the whole of country among the judges handling criminal trials and hearing
appeals.