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        REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.              OF 2013 (Arising out of S.L.P. (Crl.) No.6287 of 2011)

Ankush Shivaji Gaikwad …Appellant

Versus

State of Maharashtra …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. This appeal arises out of a judgement and order dated  

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  

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appellant’s conviction for the offence of murder punishable  

under  Section  302  of  the  I.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 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 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. 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 walking past the field of the  

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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  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  

Nos.2  and  3  beat  the  deceased  with  fist  and  kicks,  the  

appellant hit the deceased with the iron pipe on the head. On  

account of 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. 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-Mangalbai  filed  a  

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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 I.P.C  

was registered by the police. Investigation of the case was  

taken up by P.W.6-Police Sub Inspector Parihar who recorded  

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 I.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  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 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,  the  police  filed  a  

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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 of  

the  I.P.C.  before  the  Sessions Court.  Before  the  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  

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 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  

Appeal No.359 of 2008 before the High Court of Judicature at  

Bombay, Bench at Aurangabad. The High Court has by the  

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judgment impugned in this appeal dismissed the appeal of  

the appellant before us but allowed the same in so far as the  

co-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-

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  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 I.P.C.

8. On behalf of the appellant it was contended that the  

appellant’s case fell within Exception 4 to Section 300 of the  

I.P.C. which reads as under:

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

9. It was argued that 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  

having taken undue advantage or acting in a cruel or unusual  

manner. 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 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 were walking along a mud path by the side of the field  

nearby.  It  was the  barking of  the  dog that  provoked the  

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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 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  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, 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  

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  

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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,  in  our  opinion,  should  

entitle the appellant to the benefit of Exception 4 to Section  

300 of the I.P.C.

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 I.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 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 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  

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fit  of  anger.  Dealing with the  provision of  Exception  4  to  

Section 300 this Court observed:       

“…..  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 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   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 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 cruelly.”

   (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 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  

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the  offender  should  not  have  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 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: (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. IPC is not defined in the IPC. 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  

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that thereafter any injury was inflicted when he was   in a helpless condition. The assaults were made at   random. Even the previous 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…”

(emphasis supplied)

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  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 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:  

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“...All  fatal  injuries  resulting  in  death  cannot  be  termed as cruel or unusual for the purposes of not   availing  the  benefit  of  Exception 4 of  Section  300  IPC. 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 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 a cruel or   unusual manner.”

  (emphasis supplied)

13. Reference may also be made to the decision in 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 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 and after giving him one blow took to   his heels. He did not cause any other injury 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  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, we are of the opinion that Exception-4   

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to Section 300 IPC 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) IPC...”

   (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   

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  Anthony  Pareira  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   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 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....”

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16. Reference  may also  be  made  to  the  decision  of  this  

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 into the   mind of the accused, its intention has to be gathered   from the 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:

“....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  less  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  

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you cannot look into a man's mind to see what was   passing there at any given time.  What he intends  can only be judged of by what he does or says, and  if  he says nothing, then his  act  alone must guide   you to your decision. It is a general rule in criminal   law, 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 of Goa (2000) 9 SCC 1, the  

accused  had  hit  the  deceased  with  a  danda during  a  

premeditated gang-fight, resulting in the death of the victim.  

Both the Trial Court and the Bombay High Court convicted  

the appellant under Section 302 I.P.C. This Court, however,  

converted the conviction to one under Section 304, Part II,  

I.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, IPC as in the present  case...”

     (emphasis supplied)

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20. In Jagrup Singh v. State of Haryana (1981) 3 SCC  

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 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 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 (1984) 1 SCC 673, Mer Dhana Sida v. State of  

Gujarat  (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  

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without premeditation. The 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  

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:

“....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 with the   intention of causing such bodily injury as is likely to   cause  death  and  therefore  the  offence  would   squarely  come  within  the  Ist  part  of  Section   304 I.P.C.  The  guilty  intention  of  the  accused  to   cause such bodily injury 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)

23. We  may  lastly  refer  to  the  decision  of  this  Court  in  

Pulicherla  Nagaraju  @  Nagaraja  Reddy  v.  State  of   

Andhra  Pradesh (2006) 11 SCC 444  where  this  Court  

enumerated some of the circumstances relevant to finding  

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out whether there was any intention to cause death on the  

part of the accused.  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 304 Part I or 304 Part II. Many petty   or insignificant matters - plucking of a fruit, straying   of a cattle, quarrel 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 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 courts to ensure that the cases of   murder  punishable  under  Section  302,  are  not   converted  into  offences  punishable  under  Section   304 Part  I/II,  or  cases  of  culpable  homicide  not   amounting  to  murder,  are  treated  as  murder   punishable  under  Section  302.  The  intention  to  cause  death  can  be  gathered  generally  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 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   injury;  (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  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; (ix) whether it  was in   the heat of passion; (x) whether the person inflicting   the injury 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  above  list  of  circumstances  is,  of  course,  not   exhaustive and there may be several other special   

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circumstances  with  reference  to  individual  cases   which  may  throw  light  on  the  question  of   intention...”

  (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 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, therefore, more appropriately fall under Section 304  

Part II of the IPC.  

25. The  only other  aspect  that  needs  to  be examined is  

whether any compensation be awarded against the appellant  

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 in bold relief certain aspects that need to  

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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.

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 SCC 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 is no reparation to the crippled or bereaved  

but is futility 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 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 as to meet the  

ends of justice.  The Court said:

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“…. 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 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   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 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, recommend to all Courts to exercise this   power liberally so as to meet the ends of justice in a   better way.

    (emphasis supplied)

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.

28. In  Sarwan Singh and others  v.  State  of  Punjab  

(1978) 4 SCC 111,  Balraj v. State of U.P. (1994) 4 SCC  

29, Baldev Singh and Anr. v. State of Punjab (1995) 6   

SCC 593,  Dilip  S.  Dahanukar  v.  Kotak Mahindra  Co.   

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Ltd. and Anr.  (2007) 6 SCC 528, this Court held that 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  depend  upon  the  

relevant factors apart from such fine or compensation being  

just and reasonable.  In Dilip S. 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:

“.... 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, 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 also 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  thus,  power  thereunder   should be exercised only in appropriate cases. Such   a jurisdiction cannot be exercised at the whims and   caprice of a judge.”

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29. The long line of judicial pronouncements of this Court  

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.   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 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   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 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   victim's right to compensation was incorporated into   civil law.”

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30. With  modern  concepts  creating  a  distinction  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  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 increasingly felt that victims of the crimes were  

being  neglected  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.

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  

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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 SCC 14 is apposite:

“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, or damage' had resulted.   The Criminal Justice Act 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 fine. These developments signified a major   shift  in  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   every  case of  death,  injury,  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 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 greater role for compensation...”

(emphasis supplied)

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32. In the United States of America, the Victim and 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  

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:

“If the court does not order restitution or orders only   partial  restitution,  the  court  shall  include  in  the   statement the reason thereof.”  

(emphasis supplied)

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, which is carried out over a period of 5 weeks  

after an offender is convicted.  

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34. Domestic/Municipal  Legislation  apart  even  the  UN  

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:

“Restitution

8. Offenders  or  third  parties  responsible  for  their   behaviour  should,  where  appropriate,  make  fair   restitution 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.

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.

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  reimbursement  of  the   expenses of relocation, whenever 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 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.

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Compensation

12. When compensation is  not fully  available from  the  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 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.

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 where the State of which the victim is a   national  is  not  in  a  position  to  compensate  the   victim for the harm.”

35. The  UN  General  Assembly  passed  a  resolution  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 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:

“94.  In  recent  years  the  right  to  reparation  for   victims  of  violation  of  human  rights  is  gaining   ground.  United  Nations  Commission  of  Human   

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Rights  has  circulated  draft  Basic  Principles  and  Guidelines on the Right to Reparation for Victims of   Violation of Human Rights, (see Annexure).”

36. Amongst others the following provisions on restitution  

and compensation have been made:

“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  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  violations  of  human  rights  or  international   humanitarian law, such as :

(a)  Physical  or  mental  harm,  including  pain,   suffering and emotional distress;

(b) Lost opportunities including education;

(c) Material damages and loss of earnings, including   loss of earning potential;

(d) Harm to reputation or dignity;

(e)  Costs  required  for  legal  or  expert  assistance,   medicines and medical services.”

37. Back  home  the  Criminal  Procedure  Code  of  1898  

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   

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compensation is, in the opinion of the Court, recoverable by  

such person in a Civil Court”.

38. The  Law  Commission  of  India  in  its  41st Report  

submitted in 1969 discussed Section 545 of the Cr.P.C. of  

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   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  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   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.”  

                (emphasis supplied)

39. On the basis of the recommendations made by the Law  

Commission in the above report,  the Government of India  

introduced  the  Criminal  Procedure  Code  Bill,  1970,  which  

aimed at revising Section 545 and introducing it in the form  

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of Section 357 as it reads today. The Statement of Objects  

and Reasons underlying the Bill was as follows:

“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 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  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.”  

(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 Report  

on  'Some Questions Under the Code of Criminal 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  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-- become  all  the  more  so  in  the  absence  of   

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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 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 should be allowed to cooperate in the   process.”

(emphasis supplied)

41. The  Cr.P.C.  of  1973  which  incorporated  the  changes  

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  previously  permissible  under  the  

Code.  The  changes  brought  about  by  the  introduction  of  

s.357 were as follows:

(i) The word “substantial” was excluded.

(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.  

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(iii) Sub-section  (4)  was  introduced  which  states  that  an  

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  

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  357A  under  which  the  Court  is  

empowered to direct the State to pay compensation to the  

victim  in  such  cases  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 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.

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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:

“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 substantive harms to people and  not  merely  symbolic  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   extensive and varied.

xx xx xx xx xx

9.1 The principles of victimology has foundations in   Indian constitutional jurisprudence. The provision on   Fundamental  Rights  (Part  III)  and  Directive   Principles of State Policy (Part IV) form the bulwark   for a new social order in which social and economic   justice  would  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 fundamental   duty  of  every  Indian  citizen,  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.

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 empowers the Criminal Courts to grant   compensation to the victims.

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xx xx xx xx

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 of its own funds…”   

44. The question then is whether the plenitude of the power  

vested  in  the  Courts  under  Section  357  &  357-A,  

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  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  

its mind to the question of compensation. Sub-section (1) of  

s.357 states that the Court “may” order for the whole or any  

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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,  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 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 rightful owner.

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 language that makes it discretionary. We may at the  

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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:

“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  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  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...”

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  

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  

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on 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,  

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 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', 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 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 defeat   the very object of the Act, the word `may' should be   interpreted to convey a mandatory force...”

(emphasis supplied)

49. Similarly in Dhampur Sugar Mills Ltd. v. State of U.   

P. and Ors. (2007) 8 SCC 338, this Court held that the  

mere  use  of  word 'may' or 'shall'  was not  conclusive.  The  

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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 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 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  

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 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  

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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 very  

object behind the introduction of the provision.

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 SCC 253,  albeit in the context of s.138 of the  

Negotiable 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.

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 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...”

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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 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 circuitous manner that   which it has prohibited or enjoined : quando aliquid   prohibetur, prohibetur et omne per quod devenitur   ad illud.”

54. This Court has through a line of cases beginning with  

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 made to the decision of this Court in  State of  

Andhra Pradesh v. Polamala Raju @ Rajarao (2000) 7  

SCC 75 where a three-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  

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years imprisonment to 5 years without recording any 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  circumstances  bearing  on  the   question  of  sentence  and  impose  a  sentence   commensurate with the gravity of the offence...

xx xx xx xx

...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...”

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 as follows:

“30....The High Court does not rest its decision on  any  legal  principle.  No sufficient  or  cogent  reason   has been arrived.  

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  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,  

the following observation of this Court in Sangeet & Anr. v.   

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State  of  Haryana (2013) 2  SCC 452  could  be  said  to  

apply to other sentences as well, particularly the award of  

compensation to the victim:

“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.”

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 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 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 even discretion has to be exercised only   along  well-recognised  and  sound  juristic  principles   with  a  view  to  promoting  fairness,  inducing   transparency and aiding equity.

29. What then are the safeguards against an arbitrary   exercise of power? The first  and the most effective   check against any such exercise is the well-recognised   

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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 is best demonstrated by disclosure of mind. And   disclosure is best demonstrated by recording reasons   in support of the order or conclusion.  

30.  Recording of reasons in cases where the order is   subject to further appeal is very important from yet   another  angle.  An  appellate  court  or  the  authority   ought  to  have  the  advantage  of  examining  the   reasons that prevailed with the court or the authority   making the order. 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...”

      (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:

“...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 also the fact that the court   concerned had really applied its mind...”

59. In Hindustan Times Ltd. v. Union of India (1998)  

2 SCC 242 this Court stated that the absence of reasons in  

an  order  would  burden  the  appellate  court  with  the  

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responsibility of going through the evidence or law for the  

first time. The Court observed :

“...In  our  view,  the  satisfaction  which  a  reasoned   Judgment 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 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 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 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  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   ordinarily  incongruous  with  a  judicial  or  quasi- judicial performance...”  

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61. In  Maya Devi's  case (supra), this Court summarised  

the existing case law on the need for reasoned orders as  

follows:

“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 has been examined in a long   line  of  decisions  rendered  by  this  Court.  In   Hindustan Times Ltd. v. Union of India (1998)   2 SCC 242 the need to give reasons has been held   to  arise  out  of  the  need  to  minimise  chances  of   arbitrariness and induce clarity.

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  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 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 SCC 732,   reasons  were  held  to  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.  

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.

27. In Director, Horticulture, Punjab v. Jagjivan  Parshad  (2008)  5  SCC  539,  the  recording  of  reasons was held to be indicative of application of   

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mind specially when the order is amenable to further   avenues of challenge.”   

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/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  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 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  

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question of  sentence  and compensation that  it  may in its  

wisdom decide to award to the 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  

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 time lag since the offence  

was committed, we conclude this 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  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. The  

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appeal is disposed of in the above terms in modification of  

the order 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.   

……...………….……….…..…J.         (T.S. Thakur)

     …………………………..…..…J.              (Gyan Sudha Misra)

New Delhi May 3, 2013

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