REPORTABLE
SUPREME COURT OF INDIA
K. M. NANAVATI …PETITIONER
Vs.
STATE OF MAHARASHTRA …RESPONDENT
DATE OF JUDGMENT: 24/11/1961
BENCH: SUBBARAO, K. DAS, S.K. DAYAL, RAGHUBAR
CITATION:
1962 AIR 605 1962 SCR Supl. (1) 567
CITATOR INFO :
R 1964 SC1563 (6)
F 1974 SC1570 (19)
RF 1976 SC 966 (32)
F 1983 SC 855 (16)
D 1987 SC 852 (9)
R 1990 SC1459 (24)
ACT:
Jury Trial-Charge-Misdirection-Referenceby Judge,if andwhen competent-Plea of General Exception-Burden ofproof-“Grave an sudden provocation”-Test-PowerofHigh Courtin reference-Code of Criminal Procedure(Act, 5of 1898), 88. 307, 410, 417, 418 (1), 423(2), 297,155 (1), 162-Indian Penal Code, 1860 (Act 45 of 1860),
88. 302, 300, Exception I-Indian Evidence Act, 1872 (1 of 1872), 8. 105.
Held, that theconnections were without substance and the appeal must fail.
Judged byits historical background and properly construed, s. 307 of the Code of Criminal Procedure was meant toconfer widerpowersof interference on the High Court than 569 in an appeal to safeguard against anerroneous verdict of the jury. This special jurisdiction conferred on the High Court by s. 307 of the Code is essentiallydifferent from itsappellate jurisdiction under ss. 410 and 417 of the code, s.
423(2) conferring no powers but onlysaving the limitation under s. 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law.
The words”for the ends of justice” ins.
307(1) of the Code, which indicate that the Judge disagreeing with the verdict,must be of the opinionthatthe verdict was onewhichno reasonable body of men could reach on the evidence, coupled with the words ‘clearly of the opinion’ gave the Judge a wide and comprehensive discretion to suit different situations. Where.
therefore, theJudge disagreedwith the verdict and recorded the grounds ofhis opinion, the reference wascompetent, irrespective of the question whether theJudgewas right inso differing from the jury or forming such an opinion as to the verdict. There is nothing in s. 307(1) of theCode that lends support to the contention that though the Judge had compliedwith the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge.
Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinionsof the Sessions Judge and the jury, virtually conferredthe functions both of the jury and the Judge on it.
Where, therefore,misdirections vitiated the verdict of the jury, the HighCourt had as much the power to go intothe entire evidencein disregard of the verdict of the jury as it had when there were no misdirections andinterfere with it if itwas such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by s. 423 or any other sections of the Code.
Ramanugarh Singh v. King Emperor, (1946) L.R.
73 I. A. 174,Akhlakali Hayatalli v.Stateof Bombay, [1953] INSC 80; [1954]S.C.R. 435, Ratan Rai v. State of Bihar, [1957] S.C.R. 273, Sashi Mohan Debnath v.
State of West Bengal [1958] S. C. R.960, and Emperor v. Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to.
A misdirection is something which the judge in hischarge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omissionto mentionmatters which areessential to the prosecution orthe defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection.
But ineither case, every misdirection or non- direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice.
Mustak Hussein v. State of Bombay [1953] S.
C. R. 809 andSmt. Nagindra Bala Mitra v. Sunil Chandra Roy, [1960] INSC 21; [1960] 3 S. C. R. 1, referred to.
There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under s. 105 of the Evidence Act where he pleads any ofthe General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and theburden that lies on the prosecutionto prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exceptionthe prosecution hasto discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may besufficient to negative one or more of the ingredients of the offence.
Woolmington v.Director of Public Prosecutions, L. R. [1935] UKHL 1; (1935) A. C. 462, considered.
Attygalle v. Emperor, A.I. R. 1936 P.C.
169, distinguished.
State ofMadrasv. A.Vaidyanatha Iyer, [1957] INSC 79; [1958] S. C. R. 580 and C. S. D. Swamy v. State, [1959] INSC 98; [1960] 1 S. C. R. 461, referred to.
Consequently, where, as in the instant case, the accused relied on the Exception embodied in s.
80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that onthe accused and explain the implications of the terms’lawful act’, lawful manner’, ‘unlawful means’ and’withpropercare and caution’ occurring in that section and point out their application to the facts of the case these were seriousmisdirections that vitiated the verdict of the jury.
Extra-judicial confession made by the accused is a direct piece of evidenceand the stringent rule of approach to circumstantial evidence has no application toit. Since in the instant case, the Sessions Judgein summarisingthe circumstances mixed up the confession withthe circumstances while directingthe jury to apply the ruleof circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated bythe grave misdirection that must effect that correctness of the jury’s verdict.
The question whether theomission to place certain evidence before the jury amounts toa misdirection has to bedecided on the factsof each case. Under s. 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence isclosed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidencefrom the correct perspective. The omission of the Judge in instant case, therefore, to place thecontents of the letters writtenby the wife to her paramour which in effect negatived the case made by the husband and thewife in theirdeposition was a clear misdirection. Althoughthe letters were readto jury bythe counsel for the parties, that did not absolve the judge fromhis clear duty in the matter.
R. V. Roberts, [1942] 1 All. E. R. 187 and R.
v. Affield, [1961] 3 All.E. R.243, held inapplicable.
The commencement of investigationunders.
156 (1)of theCode of Criminal Procedure in a particular case, which is a question of fact, has to bedecided on the facts ofthe case, irrespective ofany irregularity committed by the Police Officerin recording the first information report under s. 154 of the Code.
Where investigation had in fact commenced, as in theinstant case, s. 162of theCode was immediately attracted.But the proviso to that sectiondid not permit theeliciting froma prosecution witness in course of his cross- examination ofany statement that hemight have made to the investigation officer where such statement was not used to contradict his evidence.
The proviso also had no applicationto-a oral statement madeduring investigationand not reduced to writing.
In the instant case, therefore, there could be nodoubtthat the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himselfin placing the said evidence before the jury.
Exception 1 to s.300 ofthe Indian Penal Code could have no application to the case. The test of”grave and sudden” provocation under the Exception mustbe whether areasonable person belonging to the sameclass of society as the accused, placedin a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certaincircumstancescausegrave and sudden provocation soas to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken intoconsideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly tracedto theinfluence of the passion arising from that provocationand notafter the passion had cooled down by lapse of timeor otherwise, giving room and scope for premeditation and calculation.
Mancini v.Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes v. Director of Public Prosecutions, L. R. (1946) A.C. 588 Duffy’s case, [1949]1 All. E. R. 932 and R. v. Thomas, [1837] EngR 242; (1837) 7 C. & P. 817, considered.
Empress v.Khogayi, (1879) I. L.R. 2 Mad.
122, Boya Munigadu v. The Queen, (1881) I. L. R. 3 Mad. 33, In re Murugian I. L. R. (1957) Mad. 805, In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad v. Emperor, I. L. R.(1929) Lah. 861, Emperor v. Balku, I. L. R. (1938) All 789 and Babu Lal v. State A. I. R. 1960 All. 223, referred to.
Semble: Whether a reasonable person in the circumstances ofa particular case committed the offence under grave and sudden provocation isa question of fact for the juryto decide.
Holmes v.Director of Public Prosecution, L.
R. (1916) A. C. 588, considered.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 195 of 1960.
Appeal by special leave from the judgment and order dated March 11,1960, of the Bombay High Court in Criminal Jury Reference No. 159 of 1959.
G. S. Pathak, S. G. Patwardhan, Rajini Patel, Porus A. Metha, J. B. Dadachaji, Ravinder Narain and O. C. Mathur, for the appellant.
M. C. Setalvad, Attorney-General of India, C.
M. Trivedi, V. H. Gumeshte, B. R. G. K. Achar and R. H. Dhebar, for the respondent.
1961. November 24. The Judgment of the Court was delivered by SUBBA RAO,J.-This appealby special leave arises out of the judgment ofthe Bombay High Court sentencing Nanavati, the appellant, to life imprisonment for the murder of Prem Bhagwandas Ahuja, a businessman of Bombay.
573 This appeal presents the commonplace problem of an alleged murder by an enraged husband of a paramour of his wife: but it aroused considerable interest in the publicmind by reason of the publicity it received and theimportant constitutional point it had given rise to at the time of its admission.
The appellant was chargedunder s. 302as well asunder s. 304, Part I, of the Indian Penal Code and was tried by the Sessions Judge, Greater Bombay, with the aid of special jury. The jury brought in a verdict of “not guilty” by 8: 1 under both the sections; but the Sessions Judge did not agree with the verdict of the jury, as in his view the majority verdict of the jury was such that no reasonable body of men could, having regard to the evidence, bringin such a verdict. The learned Sessions Judgesubmitted the case under s. 307 of the Code of Criminal Procedure to the Bombay High Court after recording the grounds for his opinion.
The said reference washeard by a division bench of thesaid High Court consisting of Shelat and Naik, JJ. The two learned Judges gave separate judgments, butagreed in holding that the accused was guilty of the offence of murder under s. 302 of the Indian Penal Code andsentenced himto undergo rigorous imprisonment for life. Shelat, J., having held that there were misdirections to the jury, reviewed the entire evidence and came to the conclusion that the accused was clearly guilty of theoffence of murder, alternatively,he expressed the view that the verdict of the jury was perverse, unreasonable and, in any event, contrary to the weightof evidence.Naik, J., preferred tobase his conclusionon the alternative ground, namely, that no reasonable body ofpersons could have come to the conclusion arrived at by the jury. Boththe learned Judges agreed that no case had beenmade out to reduce the offence from murder to culpable 574 homicide not amountingto murder. The present appealhas been preferredagainstthe said conviction and sentence.
The case of the prosecution maybe stated thus: This accused, atthe time of the alleged murder, was second in command of the Indian Naval Ship “Mysore”.He married Sylvia in 1949 in the registry officeat Portsmouth, England. They have three children by themarriage, a boy aged 9 1/2 years a girl aged 5 1/2 years and another boy aged 3 years. Since the time of marriage, the couple were living at different places having regard to the exigenciesof service of Nanavati. Finally, they shifted to Bombay. In the samecity the deceased Ahujawas doing business in automobiles and wasresiding, along with his sister, ina building called “Shreyas” till 1957 and thereafter in another buildingcalled”JivanJyot”in Setalvad Road.In the year 1956, Agniks, who were common friends of Nanavatis and Ahujas, introduced Ahuja and his sisterto Nanavatis.Ahuja was unmarried and was about 34 years of age at the time ofhis death, Nanavati, as a Naval Officer, was frequently going away from Bombay in his ship, leaving his wife and children in Bombay.
Gradually, friendship developed between Ahuja and Sylvia,whichculminated inillicit intimacy between them. On April 27, 1959, Sylvia confessed to Nanavati of her illicit intimacy with Ahuja.
Enraged at the conduct of Ahuja, Nanavati went to his ship, took from the stores of the ship a semi- automatic revolver and six cartridges on a false pretext, loadedthe same, went to the flatof Ahuja entered his bed-room and shothim dead.
Thereafter, the accused surrendered himself to the police. He was put under arrest and in due course he wascommitted to the Sessions forfacinga charge under s. 302 of the Indian Penal Code.
The defence version, asdisclosed in the Statement madeby the accused before the Sessions Court under s. 342 of the Code of Criminal Procedure and 575 his depositionin thesaid Court, may be briefly stated: The accused was away with his ship from April 6, 1959, to April 18,1959. Immediately after returning to Bombay, he and his wife went to Ahmednagar forabout three days in the company of his younger brother and his wife. Thereafter, they returned to Bombay and aftera fewdays his brother and his wife left them. After they had left, the accused noticed that hiswife was behaving strangely and was not responsiveor affectionate tohim. When questioned, she used to evade the issue. At noon on April 27, 1959, when they were sitting in the sitting-room for the lunch to be served, the accused put his arm round his wife affectionately, whenshe seemed to go tense and unresponsive. After lunch, whenhe questioned herabout her fidelity, she shook her head toindicate thatshe was unfaithful to him.
He guessed that her paramour was Ahuja. As she did not even indicate clearly whether Ahuja would marry her and look after the children, he decided to settle the matter with him. Sylvia pleaded with him not go toAhuja’s house,as he might shoot him. Thereafter, he drove his wife, two of his children and a neighbour’s child in his car to a cinema, droppedthem there and promised to come and pick them up at 6 P.M. when the show ended. He then drove his car to his ship, as he wanted to get medicine for his sick dog, he represented to the authoritiesin theship, that he wantedto draw arevolver and six rounds from the stores of the ship as he was going to drivealoneto Ahmednagar by night, though the real purpose was to shoot himself. On receiving the revolver and six cartridges, andput it inside a brown envelope. Then he drove his car to Ahuja’s office, and notfinding him there, hedrove to Ahuja’s flat, rang the door bell, and, when it was opened by a servant, walked to Ahuja’s bed-room, went into the bed-room and shut the door behind him. He also carried with him the envelope containing 576 the revolver. The accused saw the deceased inside the bed-room, called him a filthy swine and asked him whether he would marry Sylvia and look after the children. The deceased retorted,”Am Ito marry every woman I sleep with ?” The accused became enraged,put the envelope containing the revolver on a cabnit nearby, and threatenedto thrash the deceased. The deceased made a sudden move tograsp at the envelope, when the accused whipped out his revolver and told him to get back.
A struggle ensued between the two and during that struggle two shots went off accidentally and hit Ahuja resultingin hisdeath. After the shooting the accused went backto his car and drove it to the police station where he surrendered himself.
This is broadly, omitting the details, the case of the defence.
It would be convenient to dispose of at the outset the questions of law raised in this case.
Mr. G. S Pathak,learnedcounsel for the accused, raisedbefore us the following points:
(1) Under s.307 of theCode of Criminal Procedure, theHigh Court should decide whether a reference madeby a Sessions Judge was competent only ona perusal of the order of reference made to it and it had no jurisdiction to consider the evidence and come to a conclusion whether the reference was competent or not. (2)Unders.
307(3) of the said Code, theHigh Court had no power to set aside the verdict of a jury on the ground that there were misdirections in the charge made bythe Sessions Judge. (3) I here were no misdirections at all in the charge made by the Sessions Judge; and indeed his charge was fair to the prosecutionas well to the accused. (4) The verdict of the jury was not perverse and it was such that a reasonable bodyof persons could arrive at it on the evidence placed before them.
(5) Inany view, the accused shot at the deceased under grave and sudden provocation, and therefore even if he had committed 577 an offence, itwouldnot bemurderbut only culpable homicide not amounting to murder.
Mr. Pathakelaborates hispointunder the first heading thus: Under s. 307 of the Code of Criminal Procedure, the High Court deals with the reference in two stages. In the first stage, the High Court has to consider, on the basis of the referring order, whether a reasonable bodyof persons could not have reached theconclusion arrived at by the jury; and, if it is of the view that such a body could have come to that opinion the reference shall be rejected as incompetent. At this stage, the High Court cannot travel beyond the order of reference, but shall confine itself only tothe reasons given by the Sessions Judge.
If, ona considerationof thesaid reasons,it will ofthe view that no reasonable bodyof persons could have come to that conclusion,it will then have to consider the entire evidence to ascertain whether the verdictof the juryis unreasonable. If the High Court holdsthat the verdict of the jury is not unreasonable, in the case ofa verdict of “not guilty”, the High Court acquits the accused, and in the case where the verdictis one of “guilty”it convicts the accused. In case the High Court holds that the verdictof “not guilty”, isunreasonable,it refers back the case to the Sessions Judge, who convicts the accused; thereafter the accused will have aright of appeal wherein he can attack the validity of his conviction onthe ground that there were misdirections in the charge of the jury. So too, in the case of a verdict of “guilty” by the jury, the High Court, if it holds that the verdict is unreasonable, remits the matter to the Sessions Judge,who acquits the accused, and the State, in an appeal against that acquittal, may question the correctness of the said acquittal on the ground that thechargeto thejury was vitiated by misdirections. In short, the argument may beput in three propositions, namely, (i) the High Court rejects the 578 reference as incompetent, if on the face of the reference the verdict of the jury does not appear to be unreasonable, (ii) ifthe referenceis competent, theHighCourtcan consider the evidence to come to a definite conclusion whether the verdict is unreasonable or not, and (iii) the High Court has no power under s. 307 of the Code of Criminal Procedure to set aside the verdict of the jury on the ground that it is vitiatedby misdirections in the charge to the jury.
The question raisedturnsupon the construction ofthe relevant provisions of the Code of Criminal Procedure. The said Code contains two fasciculeof sectionsdealingwith two different situations. Under s.268 ofthe Code, “All trials before a Court ofSession shallbe either by jury, or by the Judge himself.” Under s.
297 thereof:
“In cases tried by jury, when the case for the defence and the prosecutor’s reply, ifany,are concluded,the Court shall proceed tocharge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided ………………”.
Section 298 among other imposes a duty on a judge to decide all questions of law arising in the course of the trial, and especially all questions as to the relevancy of facts which it is proposed to be proved, and the admissibility of evidence or the propriety of questions asked by or on behalf of theparties, and to decide upon all matters of fact which it is necessary toprove in order to enable evidenceof particular matter to be given.
It is the dutyof the jury “to decide which view of thefacts is trueand then to return the verdict which under such view ought, according to the directions of the Jury, to be returned.” After the charge tothe jury, the juryretireto consider their verdict and, after due consideration, the foreman of the jury informs the Judge what is their verdict or what is the verdict of the majority of the jurors.
579 Where the Judge does not think it necessaryto disagree with the verdict of the jurors or of the majority of them, he gives judgment accordingly.
If theaccusedis acquitted,the Judge shall record a verdict of acquittal; if the accused is convicted, theJudge shall pass sentence on him according to law. In the case of conviction, there is a right of appeal under s. 410 of the Code, and in a case of acquittal, under s. 417 of the Code, to theHigh Court. But s.418 ofthe Code provides:
“(1) An appeal may lie on a matter of fact as well as a matter of law except where the trialwas byjury, in which case the appeal shall lie on a matter of law only.” Sub-section (2) therefore provides for a case of a person sentenced to death, with which we are not now concerned.Section 423 confers certain powers on an appellate Courtin the matter of disposing of an appeal, such as callingfor the record, hearing of the pleaders, and passing appropriate orders therein. But sub-s. (2) of s. 423 says:
“Nothing hereincontained shall authorise the Court to alter or reverse the verdict ofthe jury, unless it is of opinion that suchverdict is erroneous owning to a misdirection bythe Judge, or toa misunderstanding on the part of the jury of the law as laid down by him.” It maybe noticed at this stage, asit will be relevant in considering oneof thearguments raised in this case, that sub-s. (2)does not confer any power on an appellate court, but only saves the limitation on the jurisdiction ofan appellate courtimposed under s. 418 of the Code.
it is,therefore, clear that in an appeal against conviction or acquittal in a jury trial, the said appeal is confined only to a matter of law.
The Code of Criminal Procedure also provides for a different situation. The Sessions Judge may 580 not agree with the verdict ofthe jurors or the majority of them; and in that event s. 307 provides for a machinery to meet that situation.
As the argument mainlyturnsupon the interpretation of the provisions of this section, it will be convenient to read the relevant clauses thereof.
Section 307: (1) If in any such case the Judge disagrees with the verdict of the jurors, or of a majority of jurors, on all or any of the charges on which any accused person hadbeen tried, and is clearlyof opinion that it is necessary for the ends of justice to submit the case in respect of such accused person to the High Court, he shall submit thecase accordingly, recording the grounds of his opinion, and, when the verdict is one ofacquittal, stating the offence which he considers to have beencommitted, and in such case,if the accused is further charged under the provisions such charge as if such verdict had been one of conviction.
(3) In dealing with thecaseso submitted the High Court may exercise any of the powers whichit may exercise onan appeal, and subject thereto it shall, after considering the entire evidenceand after giving dueweight to theopinions of the Sessions Judge and thejury,acquitor convict such accused of any offence of which the jury could have convicted him upon the charge framed and placedbefore it; and, if it convicts him, may pass such sentence as might have beenpassedby theCourtof Session.
This section is a clear departure from the English law. There are good reasons for itsenactment.
Trial by jury outsidethe PresidencyTowns was first introduced in the Code of Criminal Procedure of 1861, and the verdict of the jury was, 581 subject to re-trial oncertain events, final and conclusive. This led to miscarriage of justice through jurors returning erroneous verdicts due to ignorance and inexperience. The working of the systemwas reviewed in 1872, by acommittee appointed for that purpose and on the basis of the reportof the saidCommittee, s.262 was introduced inthe Code of 1872. Under that section, wheretherewas difference of view between the jurors andthe judge, the Judge was empowered to refer thecase to the High Court in the ends of justice, and the High Court dealt with the matter as an appeal. But in 1882 the section was amended and underthe amended section the condition for reference was that theHigh Court should differ from the jury completely; but in the Code of1893 the section was amended practically in terms as itnow appears in theCode. The history of the legislation shows that the section was intended as a safeguardagainsterroneous verdicts of inexperienced furorsand also indicates the clear intentionof the Legislature to confer on a High Court a separate jurisdiction, which for convenience maybe describedas “reference jurisdiction”. Section 307 of the Code of Criminal Procedure, while continuing the benefits of the jury system to persons tried by a Court of Session, also guards against any possible injustice, having regard totheconditions obtaining in India. Itis, thereforeclear that there is an essential difference between the scope of the jurisdiction of the High Court in disposing of an appeal against a conviction or acquittal, as the case may be, in ajury trial, and that in a case submittedby theSessions Judge whenhe differs from the verdict of the jury: in the former the acceptance of the verdict of the jury by thesessions Judge isconsidered tobe sufficient guarantee against its perversity and therefore an appeal is provided only on questions of law,whereas in the latter the absence of such agreement necessitatedthe conferment of a larger power on 582 the High Court in the matter of interfering with the verdict of the jury.
Under s. 307(1) of the Code, the obligation cast upon the Sessions Judge to submit the case to the High Court is made subject to two conditions, namely, (1) the Judgeshall disagreewith the verdict of the jurors, and (2) he is clearly of the opinion that it is necessary in the ends of justice to submit thecase to the High Court. If the twoconditions arecomplied with, he shall submit the case, recording the grounds of his opinion. The words “for the ends of justice” are comprehensive, and coupled with thewords “is clearlyof opinion”,they give the Judgea discretion to enable him to exercisehis power under different situations, the onlycriterion being his clear opinion that the reference is in the ends of justice. But the Judicial Committee, in Ramanugrah Singh v. King Emperor(1), construed the words “necessary for the ends of justice” and laid down that the words mean that the Judge shall be of the opinion that the verdict of the jury is one which no reasonable body of men could have reached on the evidence. Having regard to that interpretation, it may be held that the second condition for reference is that the Judge shall be clearly of the opinionthat the verdict is one which no reasonable body of men could have reached on the evidence. It followsthat if a Judge differs from the juryand isclearly of such an opinion, he shall submit the case tothe High Court recordingthe grounds of his opinion.In that event, the said reference is clearly competent. Ifon the other hand,the case submitted to the High Court does not ex facie show that the said two conditions have been complied with by the Judge, it is incompetent. The question of competency of the reference does not depend upon the question whether the Judge 583 is justified in differing from the jury or forming such anopinion on the verdict of the jury. The argument thatthoughthe SessionsJudge has complied with the conditions necessary for making a references, the HighCourtshall reject the reference as incompetent without going in to the evidence if the reasons given do not sustain the view expressedby theSessions Judge, is not supported by the provisions of sub-s.(1) of s.
307 ofthe Code. But it is said that it is borne out ofthe decision of the Judicial Committee in Ramanugrah Singh’s case(1). In thatcase the Judicial Committee relied upon the words “ends of justice” end held that the verdict was one which no reasonable body ofmen could have, reached on the evidence and further laid downthat the requirements ofthe ends of justice must be the determining factor both for the Sessions Judge in making the reference and for the High Courtin disposing of it. The Judicial Committee observed:
“In general,if theevidence is such that it can properly support a verdict either of guiltyor notguilty, according to the view takenof itby the trial court, and if the jury take oneview of the evidence and the judgethinks that they should have taken the other, theview of the jury. must prevail, since they are the judges of fact.
In such a case a reference is not justified, and it is only by accepting their view that the High Court can give due weight to the opinion ofthe jury. If, however, the High Court considers that onthe evidenceno reasonable body of men could have reached the conclusion arrivedat bythe jury, then the referencewas justifiedand the ends of justice requirethatthe verdictbe disregarded.” The Judicial Committee proceeded to state:
“In their Lordships’opinion had the High Courtapproached thereference on the right 584 lines and given due weight to the opinion of the jury they would have been bound to hold that the reference was not justified and that the ends of justice didnot require any interference with the verdict of the jury.” Emphasis is laid on the word “justified”, and it is argued that the High Courtshould reject the reference as incompetent if the reasons given by the Sessions Judge in the statement of case do not support his view that it is necessary in the ends of justice to refer the caseto the High Court.
The Judicial Committee does not lay down any such proposition. There, the jury brought in a verdict of not”guilty” unders. 302, Indian Penal Code.
The Sessions Judge differed from the jury and made a reference to the High Court. The High Court accepted the reference and convicted the accused and sentenced him to transportation for life. The Judicial Committee held, on the facts of that case, that the High Court was not justified in the ends ofjustice to interfere with the verdict of the jury. They were not dealing with the question of competency of a reference but only with that of the justification of the Sessions Judge in making the reference, and the High Court in accepting it.
It was also not considering a case of any disposal of the reference by the High Court on the basis of the reasons given inthe reference,but were dealing with a case where theHigh Court ona consideration of the entire evidence accepted the reference and the Judicial Committee held on the evidence that there was no justification for the ends ofjustice to accept it. This decision, therefore, hasno bearing on the competency of a reference unders. 307(1) of the Code of criminal Procedure.
Now, coming to sub-s. (3) of s. 307 of the Code, it is in two parts. The first part says that the High Court may exercise any of the powers which it may exercise in an appeal. Under the 585 second part, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judgeand the jury, the High Court shall acquit or convict theaccused. These parts are combined by the expression and subject thereto”.
The words “subject thereto” were added to the section by an amendment in 1896. This expression gave rise toconflict of opinion and itis conceded that it laces clarity. That may be due to the fact that piecemeal amendments have been made to the section from time to time to meet certain difficulties. But we cannot ignore the expression, but wemust give it a reasonable construction consistent withthe intentionof the Legislature in enacting the said section. Under the second part of the section,special jurisdictionto decide a case referredto it is conferred on the High Court. It also defined the scope of its jurisdiction and its limitations The High Court can acquit or convict an accused of an offence of which the jury could have convicted him, and also pass such sentence asmight have been passed by the Court of Session.But before doing so,it shall considerthe entire evidence and give due weight to the opinionsof the Sessions Judge and the jury. The second part does not confer on the High Court any incidental procedural powers necessary to exercise the said jurisdiction in a case submitted to it, for it is neither an appeal nor arevision. Theprocedural powers are conferred on the High Court under the first part.
The first part enables the High Court to exercise any of the powers which it may exercise in appeal, for without such powers it cannot exercise its jurisdiction effectively. But theexpression “subject to” indicates that in exercise of its jurisdiction in the manner indicated by the second part, it can call in aid only any of the powers of an appellate court, but cannot invoke a power other than that conferred on an appellate court.
The limitationon thesecond part implied in the expression “subject”, must 586 be confined to the area of the procedural powers conferred on a appellate court. If that be the construction, the questionarises, howto reconcile the provisions of s. 423 (2) with those of s. 307 of the Code? Under sub-s. (2) of s.
423:
“Nothing hereincontained shall authorise the Court to alter or reverse the verdict ofa jury, unless it is of opinion that suchverdict is erroneous owing toa misdirection bythe Judge, or toa misunderstanding on the part of the jury of the law as laid down by him.” It maybe argued that, as an appellate court cannot alter or reverse the verdict of a jury unless such a verdictis erroneous owing toa misdirection by the Judge, orto a misunderstanding on the part of the jury of the law aslaid down byhim, the HighCourt,in exercise of its jurisdiction under s. 307 of the Code, likewise could not do so except for the said reasons. Sub-section (2) of s. 423 of the Code does not confer any power ofthe High Court; it only restatesthescopeof the limited jurisdiction conferredon thecould under s. 418 of theCode,and that Could nothave any application tothe special jurisdiction conferred on theHigh Court under s. 307. Thatapart,a perusal of the provisions of s. 423 (1) indicates that there are powersconferred on an appellate court which cannot possibly be exercised by courts disposing of reference under s. 307 of the Code, namely, the power to order commitment etc. Further s. 423(1) (a) and (b) speak of conviction, acquittal, finding and sentence, which are wholly inappropriate to verdict of a jury. Therefore, a reasonable constructionwill be thatthe High Court can exercise-any of the powers conferred on an appellate court under s. 423 or under either sections of the Code which are appropriate to the disposal of a, reference under s. 307. The object is to prevent miscarriage of the justice by the jurors returning erroneous 587 or preverse verdict. The opposite construction defeatsthispurpose, forit equates the jurisdiction conferredunder s. 307 with that of an appellatecourt in a jury trial. That construction would enable the HighCourtto correct an erroneous verdict of a jury only in a case ofmisdirection by the Judge but not in a case affair and good charge. This result effaces the distinction between thetwotypesof jurisdiction. Indeed,learnedcounsel for the appellant has taken a contrary position. He would say that the High Court under s. 307 (3) could not interfere withthe verdict of the jury on the ground that there were misdirections in the charge to the jury. This argument is builtupon the hypothesis that under theCode of criminal Procedure there is a clear demarcation of the functions of the juryand theJudge,the jury dealing with facts andthe Judge with the and therefore the High Court could set aside a verdict on theground of misdirection only when an appeal comes to it under s. 418 and could only interfere with the verdict of the juryfor the endsof justice, as interpreted by the Privy Council, when the matter comes to it under 8. 307 (3). If this interpretationbe accepted, wewouldbe attributing tothe Legislaturean intentionto introduce a circuitous method and confusion in the disposal of criminalcases. Thefollowing illustration will demonstrate the illogical result of theargument. The jury brings in a verdict of “guilty” on the basisof a charge replete with misdirections;the Judge disagreeswith that verdict and states the case to the High court; the High Court holds thatthe said verdict is not erroneous on the basisof thecharge, but is of the opinion that the verdict is erroneous because of themisdirections in the charge; even so, it shall hold that the verdict of the jury is good and reject the reference thereafter, the Judge his to accept the verdict and acquit the accused; the prosecution then will have 588 to prefer an appeal under s.417 of the Code on the ground that the verdict was induced by the misdirections in the charge. This could not have been the intention of the Legislature. Take the converse case.On similar facts, the jury brings in a verdict of guilty”; the Judge disagrees with the jury and makes a reference to the High Court;
even though it finds misdirections in the charge to thejury, the High Court cannot set aside the conviction butmust reject the reference; and after the conviction, the accused mayprefer an appeal to the High Court. This procedure will introduce confusion in jurytrials,introduce multiplicity of proceedings, andattribute ineptitude to the Legislature. What is more, this construction is not supported by the express provisions of s. 307 (3) of the Code. The said sub-section enables the High Court to consider the entireevidence, togive due weight to the opinions of the Sessions Judge and the jury, and to acquit or convict the accused. The key words in the sub-sectionare “giving due weight to the opinions of the Sessions Judge and the jury”. The High Court shall give weight to the verdict of the jury; but the weight to be given to a verdict depends upon many circumstances-it may be one that no reasonable body ofpersons could come to; it may bea perverse verdict; itmay bea divided verdict and may not carry the same weight as the unitedone does; itmaybe vitiatedby misdirections or non-directions. How can a Judge give any weight to a verdict if it is induced and vitiated by grave misdirections in the charge ? That apart, the High Court has to give due weight to theopinion of the Sessions Judge. The reasons for the opinion ofthe SessionsJudge are disclosed in the case submitted by him to the High Court. If the case stated bythe sessions Judge disclosed thatthere must have been misdirections the charge, how. can the High Court ignore them in giving due weight to his 589 opinion ? What is more, the jurisdiction of the High Court is couched in very wide terms in sub-s.
(3) ofs. 307of theCode: it canacquitor convictan accused.It shall take into consideration the entire evidence in the case; it shall give due weight to the opinions of the Judge and thejury; it combines in itself the functions of theJudge and jury; and it is entitled to come to itsindependent opinion. The phraseology used does not admit ofan expressed or implied limitation on the jurisdiction of the High Court.
Itappears to us that the Legislature designedly conferred a largerpower on the High Court under s.307(3)of the codethan that conferred unders. 418thereof, as in the former case the Sessions Judge differs fromthe jury while in the latter he agrees with the jury.
The decisions cited at the Bar do not in any way sustain in narrowconstruction sought to be placed by learned counsel on s. 307 of the code.
In Ramanugrah Singh’s case (1), whichhave been referred to earlier,the JudicialCommittee described the wide amplitude of the power of the High Court in the following terms:
“The Court must consider the whole case and give due weight to the opinions of the Sessions Judge and jury,and than acquit or convict the accused.” The Judicial Committee took care to observe:
“…. the test of reasonableness on the part of the jurymay notbe conclusivein every case. It is possible to suppose a case in which the verdict was justified on the evidence placed before the jury, but in the light of further evidenceplaced before the High Courtthe verdict is shown to be wrong.
In such case the ends of justice would 590 require the verdict to be set aside though the jury had not acted unreasonably.” This passage indicates that the Judicial Committee did notpurport to lay down exhaustively the circumstances under which theHigh Court could interfere underthe said sub-sectionwith the verdict of thejury.This Court inAkhlakali Hayatalli v. The State of Bombay accepted the view of theJudicial Committee on the construction of s. 307of theCode ofCriminal Procedure, and applied it to the facts of that case. But the following passage of this Court indicates that it also does not consider the test of reasonableness as theonly guide in interfering with the verdict of the jury:
“The charge was not attacked before the High courtnor before us as containing any misdirections or non-directions to the jury such as to vitiate the verdict.” This passagerecognizes thepossibilityof interference by the High Court with the verdict of the jury under the said sub-section if the verdict is vitiated by misdirections or non-directions. So too the decision of this court in Ratan Rai v.
State of Bihar assumesthat such an interference is permissibleif theverdict of thejury was vitiated by misdirections. In thatcase, the appellants werecharged underss. 435 and 436 of the Indian Penal Code and were tried by a jury, who returned a majority verdict of “guilty”. The Assistant Sessions Judge disagreed with the said verdict and made a reference to the High Court. At the hearing of the reference to counsel for the appellants contended that thecharge to the jury was defective,and did notplace the entire evidence beforethe Judges. The learned Judges of the High Court considered the objections as such and nothing more, and found the appellants guilty and convicted them. This Court, observing that it was incumbent on the High 591 Court to consider theentireevidence and the charge as framed and placed before the jury and to come toits own conclusion whether the evidence was such that could properly support the verdict of guilty against theappellants, allowed the appeal and remanded the matter to the High Court for disposal in accordance with the provisions of s. 307of theCode ofCriminal Procedure. This decision also assumes that aHigh Court could under s. 307 (3) of the Code of Criminal Procedure interfere withthe verdict of the Jury, if there are misdirections in the charge and holds that in such acase itis incumbenton thecourtto consider the entire evidence and to come to its own conclusion,after giving due weight to the opinions of the Sessions Judge, and the verdict of the jury. This Court again in Sashi Mohan Debnath v. TheState of West Bengal, held that where the Sessions Judge disagreed withthe verdict of the jury and was of the opinion that the case should be submitted to the High Court, he should submit the whole case and not a part of it. There, the jury returned a verdict of “guilty” in respect of some charges and “not guilty” in respectof others.But the Sessions Judge recorded his judgment of acquittal in respect of the latter charges in agreement with the jury and referred the case to the High Court only in respect of the former. This Court held that the said procedure violated sub-s.(2) ofs. 307of the Codeof Criminal Procedure and also had theeffectof preventing theHigh Court from considering the entire evidence against the accused and exercising its jurisdiction under sub-s. (3) of s. 307 of the said Code. Imam, J., observed that the reference in thatcase was incompetent and that the High Court could not proceed to exercise any of the powers conferred upon it under sub-s.(3) of s.
307 ofthe Code, because thevery foundation of the exercise of thatpowerwas lacking, the reference being incompetent. This 592 Court held that the reference was incompetent because the Sessions Judge contravened the express provisions of sub-s. (2) of s. 307 of the Code, for under that sub-sectionwhenever a Judge submits a case under that section, he shall not record judgmentof acquittal or of conviction on any ofthe charges on which such accused has been tried, but he may either remand such accused to custody or admit him to bail. As in that case the reference was made in contravention of the express provisions of sub-s. (2) of s. 307 of the Code and therefore the use of the word’incompetent’ may not bein appropriate. The decision of a division bench of the Patna High Court in Emperorv.
Ramadhar Kurmimay usefully be referred to as it throws some light on the question whether the High Court can interfere with the verdict of the jury when itis vitiated by serious misdirections and non-directions. Das, J., observed:
“Where, however, there is misdirection, the principle embodied in s. 537 would apply and if the verdict is erroneous owing to the misdirection, it can haveno weight ona reference under s. 307 as on an appeal.
It is not necessary to multiply decisions. The foregoing discussion may be summarized in the form of thefollowing propositions: (1) The competency of a reference made by a Sessions Judge depends upon the existence of two conditions, namely, (i) that he disagrees with the verdict of the jurors, and (ii) that he is clearly of the opinion that the verdict is one which no reasonable body of men could have reached on the evidence, after reaching that opinion, in the case submitted by himhe shall record the grounds of his opinion. (2) If the case submitted shows that the conditions have not been complied with or that the reasons for the opinion are not recorded, the HighCourt may reject the reference as incompetent : the 593 High Court can also reject itif the Sessions Judge has contravened sub-s. (2) of s. 307. (3) If the case submitted shows that the Sessions Judge has disagreed with theverdict of the jury and that he is clearlyof theopinion thatno reasonable bodyof mencouldhave reached the conclusion arrived at by the jury, andhe discloses his reasons for the opinion, sub-s. (3) of s. 307 ofthe Code comes intoplay, and thereafter theHigh Court has an obligationto discharge its duty imposed thereunder. (4) Under sub-s. (3) of s. 307 of the Code, the High Court has toconsider the entire evidence and, after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict the accused.
(5) TheHigh Court may deal with the reference in two ways, namely, (i)if there are misdirections vitiating the verdict, it may, aftergoing into the entire evidence, disregard the verdict of the jury and come to its own conclusion, and (ii) even if there are no misdirections, the High court can interfere with the verdict of the jury if it finds the verdict “perversein the sense of being unreasonable”, “manifestly wrong”, or “against the wight of evidence”, or, in other words, if the verdict is such that no reasonable body of men could have reached onthe evidence. (6) In the disposal of the said reference, the High Court can exercise any of the procedural powers appropriate to theoccasion, suchas, issuing of notice, calling for records, remanding the case, ordering a retrial, etc. We therefore, rejectthe first contention of learned counsel for the appellant.
The next question is whether the High Court was right in holding that there were misdirections in thechargeto the jury. Misdirectionsis something whicha judge in his charge tells the jury and is wrong or in a wrong manner tending to mislead them. Even an omission to mention matters which are essential tothe prosecution or the defence case in order to help the jury to come to a correct 594 verdict may also in certain circumstances amount to a misdirection. But, in either case, every misdirection ornon-direction is notin itself sufficient to set aside a verdict, but it must be such that it has occasioned a failure of justice.
In MushtakHussein v. The Stateof Bombay, this Court laid down:
“Unless therefore it is established in a case thattherehasbeen a serious misdirection by the judgein charging the jury which hasoccasioned a failureof justice and has misled the jury in giving its verdict, the verdict of the jurycannot be set aside.” This view has been restated by this Court in a recent decision, viz., Smt. Nagindra Bala Mitra v.
Sunil Chandra Roy.
The High Court in its judgment referred to as many assix misdirections in the charge to the jury which in its view vitiated the verdict, and it also stated thatthere were many others.
Learned counselfor the appellant had taken each of the said alleged misdirections and attempted to demonstrate that they were either no misdirections at all,or even if they were, they did not in any way affect the correctness of the verdict.
We shall now takethe first and the third misdirections pointed out by Shelat, J., as they are intimately connected with each other. They are reallyomissions. Thefirstomission is that throughout the entire charge there is no reference to s. 105 of the Evidence Act or to the statutory presumption laid down in that section. The second omission is that the SessionsJudge failedto explain to the jury the legal ingredients of s. 80 of theIndian Penal Code, and alsofailedto direct them that in law the said section was not applicable to the facts of the case. To appreciate the scope of the alleged 595 omissions, it is necessary to read the relevant provisions.
Section 80 of the Indian Penal Code.
“Nothing is an offence which is done by accident or misfortune,and without any criminal intentionor knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.” Evidence Act.
Section 103:”The burden of proof as to any particular fact lieson that person who wishes the Court to believe in its existence, unless itis provided by any law that the proof ofthat fact shall lie on any particular person.” Section 105:”When aperson is accused of any offence, the burden of proving the existence of circumstances bringing the case within anyof theGeneral Exceptions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained in any other partof thesame Code, or in any law defining the offence, isupon him, and the Court shall presume theabsence of such circumstances.” Section 3: “In thisAct thefollowing words andexpressions are used in the following senses, unless a contrary intention appears from the context:- A fact is said to be disproved when, after consideringthe matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudentman ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.” 596 Section 4: …..”Whenever it is directed by this Act thatthe Court shall presume a fact, it shall regard such factas proved unless and until it is disproved.” The legal impact of the said provisions on the question of burden of proof may be stated thus: In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilty of the accused; to put itin other words,the accused is presumed tobe innocent untilhis guilt is established by the prosecution. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, s. 105 of the Evidence Act raises a presumption against the accused and also throwsa burden onhim to rebutthe said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved.
An illustrationbased on the facts of the present case may bring out the meaning ofthe said provision. Theprosecution allegesthat the accused intentionally shot thedeceased; but the accused pleadsthat, though the shots emanated from his revolver and hit the deceased, it was by accident, that is, the shots went off the revolver in thecourse of a struggle in the circumstances mentioned in s. 80 of the Indian Penal Code and hit the deceased resulting in his death. The Court then shall presume theabsence of circumstances bringing the case within the provisions of s. 80 of theIndianPenal Code, that is,it shall presume that the shooting was not by accident, and that the other circumstances bringingthe case within the exception did notexist;but this presumption maybe rebutted by the accusedby adducing evidence to 597 support his plea of accident in the circumstances mentioned therein. This presumption may alsobe rebutted by admissions madeor circumstances elicited by the evidence led by the prosecution or by the combined effectof such circumstances and the evidence adduced by theaccused. But the section does not in any way affect the burden that lies on theprosecution to proveall the ingredients ofthe offence with which the accused is charged: that burden never shifts. The alleged conflict between the general burden which lies on the prosecutionand the special burden imposed on the accused under s. 105 of the Evidence Act is more imaginarythan real. Indeed, there isno conflict at all. Theremay arise three different situations: (1)A statute may throw the burden of proof of all or some of the ingredients ofan offence on the accused: (see ss. 4 and 5 of the Prevention of Corruption Act).(2) The special burdenmay not touchthe ingredients of the offence, but only theprotection given on the assumption of the proof of the said ingredients:
(see ss. 77,78,79,81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception if proved affecting the proof of all or some of the ingredients of the offence: (see s. 80 of theIndian Penal Code). In the first case the burden of proving theingredients or some of the ingredients ofthe offence, as the case may be, lies onthe accused. In the secondcase, the burden of bringing thecase under the exception lies on the accused. In the third case, though the burden lies on the accused to bringhis case within the exception, the facts proved may not discharge the said burden, but may affect the proof of theingredients ofthe offence.An illustration may bring outthe meaning. The prosecution hasto prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of s. 300 of the Indian 598 Penal Code; the prosecution has toprove the ingredients ofmurder, and one of the ingredients of that offence is that the accused intentionally shot the deceased; the accused pleads that he shot at thedeceased by accident without any intention or knowledge in the doing ofa lawful act in a lawful manner by lawful means with proper care and caution; the accused against whom a presumption is drawn under s. 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in s. 80 of the Indian Penal Code, may adduce evidenceto rebut that presumption. That evidence may not be sufficient to prove all the ingredients of s. 80 of the Indian Penal Code, but may prove that the shooting was by accidentor inadvertence, i.e., it wasdone without any intention or requisite state of mind, which is the essence of the offence, within the meaning of s.
300, Indian Penal Code, or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder.In that event though the accused failedto bring his case within the terms of s. 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. In this view itmight be said that the general burden to prove the ingredients of the offence, unless there is a specific statuteto the contrary, is always on theprosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. Thefailure on the part of the accusedto establishall the circumstances bringing his case under the exceptiondoes not absolve the prosecution to prove the ingredients of theoffence; indeed, theevidence, though insufficient toestablish theexception, maybe sufficient tonegative oneor more of the ingredients of the offence.
599 The English decisions relied upon by Mr.
Pathak, learnedcounsel for the accused, may not be of much help in construing the provisions of s.
105 ofthe IndianEvidence Act.We would, therefore, prefer not to refer to them, except to one ofthe leading decisions on the subject, namely, Woolmington v.The Directorof Public Prosecutions. The headnote in that decision gives its gist, and it read:
“In atrial for murder theCrown must prove death as the result of a voluntary act of the prisoner and malice of the prisoner.
When evidence of death and malice has been given, theprisoner is entitled to show by evidenceor by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review ofall the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoneris entitled to be acquitted.” In thecourse of the judgment Viscount Sankey, L.
C., speaking for the House, made thefollowing observations:
“But while the prosecution must prove the guiltof theprisoner, there is no such burden laid on the prisoner toprove his innocence and it is sufficient for himto raise a doubt asto hisguilt; he is not bound to satisfy the juryof his innocence…… Throughoutthe web of the English Criminal Law onegoldenthread is always tobe seen that it is the duty of the prosecution to prove theprisoner’s guilt subject to what I have already said as to the defence ofinsanity and subject also to any statutory exception. If, 600 at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, asto whether the prisoner killed the deceased with amalicious intention, the prosecution has not made out the case and theprisoner is entitled to an acquittal.” These passages are not in conflictwith the opinion expressed by us earlier. As in England so in India, the prosecution must prove the guilt of the accused, i.e., it must establish all the ingredients ofthe offence with which heis charged. As in Englandso also in India, the general burdenof proof is upon the prosecution;
and if,on thebasis of the evidence adduced by the prosecutionor bythe accused, there isa reasonable doubt whether the accused committed the offence, he is entitled to the benefit of doubt.
In India if an accused pleads an exemption within the meaning of s. 80 of the Indian Penal Code, there is a presumption against him and the burden to rebut that presumption lies on him. In England there is no provisionsimilar to s. 80 of the Indian Penal Code, butViscount Sankey, L. C., makes it clear that such a burden lies upon the accused if his defence is one of insanity and in a case where there is a statutory exception to the general rule of burden of proof. Such an exception we findin s.105 ofthe Indian Evidence Act.
Reliance is placed bylearnedcounsel for the accused on the decision of the Privy Council in Attygalle v. Emperor in support of the contention that notwithstanding s. 105 of the Evidence Act, the burden of establishing the absence of accident within the meaning ofs. 80 of the Indian Penal Code ison theprosecution. In thatcase, two persons were prosecuted, one for performing an illegal operation and the other for abetting him in that crime. Under s. 106 of the Ordinance 14 of 601 1895 inthe Ceylon Code, which corresponds to s.
106 ofthe Indian Evidence Act, it was enacted that when anyfact was especially within the knowledge of any person, the burden of proving that fact was upon him. Relying upon that section, the Judge in his charge to the jury said:
“Miss Maye-that is the person upon whom the operation was alleged tohave been performed-was unconscious and what took place in that room thatthree-quarters of an hour that she was under chloroform is a fact specially within the knowledge of these two accused who were there. The burden of proving that fact,the law says, is upon him, namely that no criminal operation tookplace but what tookplace was this and this speculum examination.” The Judicial Committee pointed out:
“It is not the law of Ceylon that the burden iscast upon an accusedpersonof proving that no crime has been committed. The jury might well have thought from the passage just quoted that that was in fact a burden which theaccused personhad todischarge.
The summing-up goes onto explain the presumption of innocence in favour of accused persons, but it again reiteratesthat the burden ofproving that no criminal operation took placeis onthe twoaccused who were there.” The said observations do not support the contention of learnedcounsel. Section 106of Ordinance 14 of 1895 of the Ceylon Code did not cast upon the accuseda burden to prove that he had not committed any crime; nor did it deal with any exception similar to that provided under s. 80 of the Indian Penal Code. It has no hearing on the construction ofs.105 of the Indian Evidence Act.
The 602 decisions of this Court in The State of Madras v.
A. VaidyanathaIyer (1), which deals with s. 4 of the Prevention of Corruption Act, 1947, and C.S.D.
Swami v. The State(2),which considers the scope of s. 5(3) ofthe said Act, are examples ofa statute throwing the burden of proving and even of establishing the absence of someof the ingredients ofthe offence on the accused; and this Court held that notwithstanding the general burden on the prosecution to prove the offence, the burden of proving the absence of the ingredients of theoffence under certain circumstances was ontheaccused. Further citations are unnecessary as,in ourview, the terms of s.105 of the Evidence Act are clear and unambiguous.
Mr. Pathakcontends that the accused did not rely upon any exception within the meaning of s.80 of theIndian Penal Code and that his plea all through has been onlythat the prosecution has failed to establish intentional killing on his part. Alternatively, he argues that as the entire evidence has been adduced both by the prosecution and bythe accused, the burden of proof became only academic and thejury was in a position to come toone conclusionor other on the evidence irrespective ofthe burden of proof.Before the Sessions Judgethe accused certainly relied upon s. 80 of the Indian Penal Code, and the Sessions Judge dealt with the defence case in the charge to the jury. In paragraph 6 ofthe charge, the learned Sessions Judge stated:
“Before I proceed further I haveto point outanother sectionwhich is section
80. You know by now that the defence of the accused isthat the firing of the revolver was a matter of accident duringa struggle for possession of the revolver. A struggle or a fight by itselfdoes not exempt a person.
It is the accident which exemptsa person from criminal liability 603 because there may be a fight, there may be a struggle and in the fight and in the struggle the assailant may over-power the victim and kill the deceased so that a struggle ora fight by itself does not exempt an assailant.
It is only an accident, whetherit isin struggle or a fight or otherwisewhich can exempt anassailant. It is only an accident, whether itis ina struggle or a fight or otherwise which can exempt a prisoner from criminal liability. I shall draw your attention to section 80 which says:……..
(section 80 read). You know thatthere are several provisionswhich are to be satisfied before thebenefit of this exception can be claimed by an accused person and it should be that the act itself must be an accident or misfortune, thereshould be no criminal intention or knowledge inthe doing of that act, that act itself must be done in a lawful manner andit must be done by lawful means and further in the doing of it, you must do it with proper care andcaution. In this connection, therefore, even while considering the caseof accident, you will haveto consider all the factors, which might emerge from the evident before you, whether it was proper care and caution to takea loaded revolver withouta safety catch to the residence of the person with whom you were going to talk andit you do not getan honourable answeryou was repaired to thrash him. You have also to consider this further circumstance whether it is an act with proper care and cautionto keep thatloaded revolver in the hand and thereafter put it aside, whether that is taking proper care and caution. This is again a question of fact and you have to determine asJudgesof fact, whether the act of the accused in this case can be said to be an act which was lawfully 604 done in a lawful manner and with proper care and caution. If it is so, then and only then can you call it accident or misfortune. This is a section which you will bear in mind when you consider the evidence in this case.” In this paragraph the learned Sessions Judge mixed up theingredients ofthe offence with those of the exception.He didnot place before the jury the distinctionin thematter of burden of proof between the ingredients of the offence and those of theexception. He did nottell the jury that where the accused relied upon theexception embodied in s. 80 of the Indian Penal Code, there was a statutory presumption against him and the burdenof proof wason him to rebut that presumption. What is more, he told the jury that it wasfor them to decide whether the act of the accused in the case could besaid tobe an act which was lawfully done in alawful manner with propercare and caution. This wasin effect abdicating hisfuntions in favour of the jury. He should have explained to them the implications of the terms “lawful act”, “lawful manner”, “lawful means” and “with proper careand caution” and pointed out to them the application of the said legal terminology to the facts of the case.On such acharge as in the present case, it was not possible for the jury,who were laymen, to know the exact scope of the defence andalso the circumstances under which the plea under s. 80 of the Indian Penal Code was made out. They would not have also known that if s. 80 of the Indian Penal Code applied, there was a presumption against the accused and the burdenof proof torebut the presumption wason him. In such circumstances, we cannot predicate thatthe jury understood the legal implications of s. 80 of the Indian Penal Code and the scope of the burden of proof under s.
105 ofthe Evidence Act, andgave their verdict correctly. Nor can we say that the jury understood the distinctionbetween the ingredients of the offence 605 and thecircumstances that attract s.80 of the Indian Penal Code andthe impact of the proof of some of the said circumstances on the proof of the ingredients ofthe offence. The saidomissions therefore are very grave omissions which certainly vitiated the verdict of the jury.
The next misdirection relates to the question of grave and sudden provocation. On this question, Shelat, J., made the following remarks:
“Thus the question whether a confession of adultery by the wife of accused to him amounts tograve and sudden provocationor not was a question of law. In my view, the learned Session Judge was in error in telling the jury that the entire question was one of fact for them todecide.It was for the learned Judge to decide as a question of law whether the sudden confession by the wife of the accused amounted tograve and sudden provocation as against the deceased Ahuja which onthe authorities referredto hereinabove it was not. He was therefore in error in placing this alternative case to the jury fortheirdetermination insteadof deciding it himself.” The misdirection according tothe learned Judge was that the Sessions Judge in his charge did not tell the jury that the sudden confession of the wife tothe accused did not in law amountto sudden and grave provocation by the deceased, and instead he left the entire question to be decided by the jury. The learned judge relied upon certain English decisions and textbooks in support of his conclusion thatthe said question was one of law and that it was for the Judge to express his view thereon. Mr. Pathak contends that there isan essential difference between the law of England and that of India in the matter of the charge to the jury inrespectof grave and sudden provocation. The House of Lords 606 in Holmes v. Directorof Public Prosecution (1) laid down the law in England thus:
“If there isno sufficientmaterial, even ona viewof the evidence most favourable to the accused, for a jury (which means a reasonable jury)to formthe view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces the death it is the duty of the judge as matter of law to directthe jury that the evidence does not support a verdict of manslaughter.
If, on the otherhand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject topassion or loss of control as to be led to usethe violence with fatal results, and (b) that the accused was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict.” Viscount Simon brought out the distinction between the respectiveduties of the judge and the jury succinctly by formulating the following questions:
“The distinction, therefore, is between asking ‘Could the evidence support the view that the provocation was sufficient to lead a reasonable personto do what the accused did ?’ (whichis forthe judge to rule), and, assuming that the judge’s ruling isin affirmative, asking thejury:’Do you consider that, on the facts as you find them from the evidence, the provocation wasin fact enough to lead a reasonable person to do what the 607 accused did ?’ and, if so, ‘Did the accused act under the stress of such provocation’ ?” So far as England is concerned the judgment of the House of Lords is the last word on the subject till itis statutorily changed or modified by the House of Lords. It is not, therefore, necessary to consider the opinions of learned authors on the subject cited before us to show thatthe said observations did not receive their approval.
But Mr. Pathak contends that whatever might be the law in England, in India we are governed by the statutoryprovisions, and thatunder the explanation to Exception I to s. 300 of the Indian Penal Code, the question “whether the provocation was grave and sudden enough to prevent the offence from amountingto murder is one of fact”, and therefore, unlike in England,in India both the aforesaid questions fall entirely within the scope of thejury and they are for them to decide. To put it in other words, whether a reasonable person in thecircumstancesof aparticular case committed the offence under provocation which was grave and sudden is a question of fact for the jury todecide. Thereis force in this argument, but itis notnecessary to expressour final opinion thereon, as the learned Attorney-General has conceded that there was no misdirectionin regard to this matter.
The fourthmisdirection found bythe High Court is that the learned Sessions Judge told the jury that the prosecution reliedon the circumstantial evidenceand asked them to apply the stringent rule ofburden of proof applicable to suchcases, whereasin fact there was direct evidence of Puransingh in theshapeof extra- judicial confession. In paragraph 8 of the charge the Sessions Judge said:
“In this case the prosecution relies on what is called circumstantial evidence that is 608 to say there is no witness who can say that he saw the accused actually shooting and killing deceased.Thereare no direct witnesses,directwitnesses asthey are called, of the event in question. Prosecution relies oncertain circumstances from which they ask you to deduce an inference that it must be the accused and only the accused who must have committed this crime. Thatis called circumstantial evidence. It is not that prosecution cannot rely on circumstantial evidence because it is not always thecase or generally thecase that people whogo out to commit crime will also take witnesses with them.So that it may be that in some cases the prosecution may have to rely on circumstantial evidence. Now when you are dealing with circumstantial evidence you will bear inmind certain principles, namely, that the factson which the prosecution relies must be fully established.
They mustbe fully and firmly established.
These facts must lead to one conclusion and one only namely the guilt of the accused and lastly itmustexclude allreasonable hypothesis consistent with the innocence of the accused, all reasonablehypothesis consistent with the innocence of the accused should beexcluded. In other words you must come to the conclusion by allthe human probability, it must be the accused and the accused only who must have committed this crime. That is the standard of proof ina case resting on circumstantial evidence.” Again in paragraph 11the learned Sessions Judge observed thatthe jury were dealing with circumstantial evidence and graphically stated:
“It is like this, take a word, split it upintoletters, the letters, may individually meannothing but when they are combined 609 they willform a word pregnant with meaning.
That is the way how you have to consider the circumstantial evidence. You have to take all the circumstancestogether andjudge for yourselfwhethertheprosecution have established their case,” In paragraph 18 ofthe charge, the learned Sessions Judgedealt with the evidence of Puran singh separately and told the jury that if his evidence was believed, it was one ofthe best forms of evidence against the man who made the admission and that if they accepted that evidence, then the story of the defencethat it wasan accident wouldbecome untenable. Finallyhe summarized allthe circumstances onwhich the prosecution relied in paragraph 34 and one of the circumstances mentioned was the extra-judicial confession made to Puransingh.In that paragraph the learned Sessions Judge observed as follows:
“I will now summarize the circumstances on which the prosecution relies in this case.
Consider whetherthe circumstances are established beyondall reasonabledoubt. In this case you are dealing with circumstantial evidence and therefore consider whether they are fully and firmly established and consider whether they lead to one conclusion and only one conclusion that it is the accused alone who must have shot the deceased and further consider that itleavesno room for any reasonable hypothesis consistentwith the innocence of the accused regard being had to all the circumstances inthe case and the conclusion that you have to come to should be of this nature and by all human probability it must be the accused and the accused alone who must have committed this crime”.
610 Finally the learned Sessions Judge told them:
“If on the other hand you think that the circumstances on which the prosecution relies are fullyand firmly established, that they lead to one and the only conclusion and one only, of the guilt of the accused and that they exclude all reasonable hypothesis of the innocence of the accusedthen and in that case it will be your duty which you are bound by the oath to bring verdict accordingly without any fear or any favour and without regard being had to any consequence that this verdict might lead to.” Mr. Pathak contends that thelearned Sessions Judge dealt with the evidence in two parts, in one part heexplained to the jury the well settled rule of approach tocircumstantialevidence, whereas in another part he clearly and definitely pointed to the jury the great evidentially value of theextra-judicial confession of guilt by the accused made to Puransingh, if that was believed by them. He therefore,argues that there was no scope for any confusion in the minds of the jurors in regard to their approach to the evidence or in regard to the evidentially value of the extra- judicial confession. The argument proceeds that even ifthere was a misdirection, it was not such as to vitiate the verdict of the jury. It is not possible to accept this argument. We have got to look atthe question from thestandpoint of the possible effectof thesaid misdirection in the charge on the jury, who are laymen. In more than one place the learned Sessions Judge pointed out that the case depended upon circumstantial evidence and that thejury should apply the rule of circumstantial evidence settled by decisions.
Though at one place he emphasized upon evidentiary value of a confessionhe later on included that confession alsoas oneof thecircumstances and again directedthe jury to apply the ruleof circumstantial evidence. It is 611 not disputed that the extra-judicialconfession made to Puransingh is direct piece of evidence and that the stringentruleof approachto circumstantial evidencedoes not apply to it. If that confessionwas true, it cannot be disputed that the approach of the juryto the evidence would be different from that if that was excluded.
It is not possible to predicate that the jury did not accept that confession and therefore applied the rule of circumstantial evidence. It may well have been that the jury accepted it and still were guided by the rule of circumstantial evidence as pointed out by the learned SessionsJudge.In these circumstances we must hold, agreeing with the High Court, that this is a grave misdirection affecting the correctness of the verdict.
The next misdirection relied upon by the High Court is the circumstance that the three letters written by Sylvia were not read to the jury by the learned Sessions Judge in his charge and that the jury were not toldof their effect on the credibility ofthe evidenceof Sylvia and Nanavati. Shelat, J., observedin regard to this circumstance thus:
“It cannotbe gainsaid that these letters were important documentsdisclosing the stateof mindof Mrs. Nanavati and the deceased to a certainextent.If these letters had been read injuxtapositionof Mrs. Nanavati’s evidencethey would have shown thather statementthat she felt that Ahuja hadasked her not to see him fora month forthe purpose of backing out of the intended marriagewas notcorrect and that they had agreed not to see each other for the purpose ofgiving her and also to himan opportunity tocoollythinkout the implications of such a marriage and then to make up her own mind on her own. The letters would alsoshow that when the accused asked her, as he said in his 612 evidence, whetherAhuja would marry her, it was not probable that she wouldfence that question. On the other hand, shewould, in all probability, have told him that they had already decided to marry.In myview, the omission to refer even once to these letters in the charge especiallyin view of Mrs.
nanavati’sevidence wasa nondirection amounting to misdirection.” Mr. Pathak contends that these letters were read to thejury by counsel on both sides anda reference was also made to hem in the evidence of Sylivia and, therefore the jury clearly knew the contents of the letters, and that in the circumstances the non-mention of the contents of the letters bythe SessionsJudge was nota misdirection and even if it was it did not affect the verdict of the jury. In this context reliance is placed upon two English decisions, namely, R.
v. Roberts (1) and R. v. Attfield (2). In the former case the appellant was prosecuted for the murder of a girl by shooting her with a service rifle and he pleaded accident as his defence. The Judge in his summing-up, among other defects, omitted to refer tothe evidence of certain witnesses; the jury returned a verdict of “guilty” on the charge of murder and it was accepted by the judge, it was contended that the omission to refer to theevidence ofcertainwitnesses wasa misdirection. Rejecting that plea, Humphreys, J., observed:
“Thejury had thestatements before them. Theyhad the wholeof the evidence before them, and they had, just before the summing up, comments upon those matters from counsel for the defence, and from counsel for the prosecution. It is incredible that they could haveforgotten them or that they could have misunderstood the matter in any 613 way, or thought, by reason of the fact that the judge did not think it necessary to refer to them, that they were not to pay attention to them. We do not think there is anything in that point at all. A judge, in summing-up, is not obliged to refer to every witness in the case, unless he thinks it necessary to do so.
In sayingthis, the court is byno means saying that it might not havebeen more satisfactory if the judge had referred to the evidence of the two witnesses, seeing that he did not think itnecessary to refer to some of the statements made by the accused after the occurrence. No doubtit would have been more satisfactoryfrom the point of view of the accused. All we are saying is that we are satisfied that there was no misdirection in law on the part of judgein omitting those statements, andit was within his discretion.” This passage does snotlay down as a proposition of law that however important certain documents or pieces of evidence maybe from the standpoint of the accused or the prosecution, the judge need not refer to or explain them in his summing-up to the jury, and, if he did not, it would not amount to misdirection under any circumstances. In that case some statements madeby witnesseswere not specifically brought to the notice of the jury and the Court held in the circumstances of that case that there was no misdirection. In the latter case the facts were simple and the evidence was short;
the judge summed up the case directing the jury as to thelaw butdid not deal with evidence except in regard to the appellant’s character. The jury convicted the appellant. Thecourt held that, “although in a complicated and lengthy case it was incumbent on the courtto deal with the evidence in summing-up,yet where, as in the present case, the issues could be simply and clearly stated, it was 614 not fatal defect forthe evidence not tobe reviewed in the summing-up.”This is alsoa decision on the facts of that case. That apart, we are not concerned with a simple case here but with a complicated one. This decision does not help us in deciding the point raised. Whether a particular omission by a judge to placebeforethe jury certain evidence amounts to a misdirection or not falls to be decided on the facts of cash case.
These letters show the exact positionof Sylvia in the contextof herintended marriage with Ahuja, and help to test the truthfulness or otherwise of some of the assertions made by her to Nanavati. A perusal of theselettersindicates that Sylvia and Ahuja were on intimate terms, that Ahuja was willing to marry her, that they had made up their minds to marry, but agreed to keep apart for a month to consider coolly whether they really wantedto marry inviewof the serious consequences involved in taking such a step. Both Nanavati andSylviagave evidencegivingan impression thatAhujawas backing out of his promise to marry Sylvia and that wasthe main reason for Nanavati going to Ahuja’s flat for an explanation. Ifthe Judge had read these letters in his charge and explained the implication of the contents thereof in relation to the evidence given by Nanavati and Sylvia, it would not have been possible to predicate whether the jury would have believed the evidence of Nanavati and Sylvia. If the marriage between them was a settled affair and if theonly obstruction in the way was Nanavati, and ifNanavati had expressed his willingness to be outof the way and even to help them to marry, their evidencethat Sylvia did not answer the direct questionabout the intentions of Ahuja to marry her, and the evidence of Nanavati that it became necessary for him to go to Ahuja’s flat to ascertain the latter’s intentions might not have been believed 615 by thejury. It is noanswer to say that the letters were read to the jury at different stages of thetrial or that they might haveread the letters themselves for in a jury trial, especially where innumerable documents are filed, itis difficult fora layjury,unlessproperly directed, to realise the relative importanceof specified documents in the context ofdifferent aspects of a case. That iswhy the Codeof Criminal Procedure, under s. 297 thereof, imposes a dutyon theSessions Judgeto charge the jury after the entire evidence isgiven,and after counsel appearing forthe accused and counsel appearing for the prosecution have addressed them.
The object of the charge to the jury by the Judge is clearly to enable him to explain the law and also to place before themthe facts and circumstances of the case both for and against the prosecution in order to help them in arriving at a right decision.The fact that the letters were read tothe jury by prosecution or by the counsel for the defence is not of much relevance, for they would place the evidence before the jury from different angles to induce them to accept their respective versions. That factin itself cannot absolve the Judge fromhis clear duty to put the contents of the letters before the jury from the correct perspective. We are in agreement with the High Court that this was a clear misdirection which might have affected the verdict of the jury.
The next defect pointed out by the High Court is that the Sessions Judge allowed the counsel for the accused to elicitfrom the police officer, Phansalkar, what Puransingh isalleged to have stated to him orally, in order to contradict the evidence of Puransingh in the court, and the Judge also dealt with theevidence so elicitedin paragraph 18 of his charge to the jury. This contention cannot be fully appreciated unless some relevant facts are stated. Puransingh was examined for the prosecution as P. W. 12. he was a 616 watchman of ‘Jivan Jyot.” He deposed that when the accused was leaving the compound ofthe said building, he asked himwhy hehad killed Ahuja, and theaccused told him thathe hada quarrel with Ahuja as the latter had”connections” with his wife and therefore he killed him. At about 5-5 P. M. on April27, 1959, this witness reported this incident to Gamdevi Police Station. On that day Phansalkar(P. W.13) wasthe Station House Duty Officer at that station from 2 to 8 P.M. On the basis ofthe statement of Puransingh, Phansalkar wentin a jeep with Puransingh to the place of the alleged offence. Puransingh said in his evidence that he told Phansalkar in the jeep what the accused had told him when he was leaving the compound of “JivanJyot.” After reaching the place of the alleged offence, Phansalkar learnt from a doctor that Ahuja was dead and he also made enquiries fromMiss Mammie, the sister of the deceased. He did not record the statement made by Puransingh. Butlatter on between 10 and 10-30 P.
M. on the same day, Phansalkar made a statement to Inspector Mokashi what Puransingh had told him and that statementwas recorded by Mokashi. In the statement takenby Mokashi it was not recorded that Puransinghtold Phansalkar that the accused told him why he had killed Ahuja. When Phansalkar was in the witness-box to a question put to him in cross-examination he answered that Puransingh did not tell him that he had asked Nanavati why he killed Ahuja and that the accused replied that he had a quarrel with the deceased as the latter had “connections” with his wife and that he had killed him. The learned Sessions Judge not only allowed the evidence to go in but also, in paragraph 18 of his charge to thejury, referredto that statement. After giving thesummary of the evidence given by Puransingh, the learned Sessions Judge proceededto state in his charge to the jury:
617 “Now the conversation between him and Phansalkar(Sub-Inspector) was broughton record inwhich what the chowkidar told Sub- Inspector Phansalkar was, the servants of the flat of Miss Ahuja had informedhim that a Naval Officer was going away in the car. He and the servants had tried to stop him but the said officer drove away in the car saying that he was going to the Police Station and to Sub-Inspector Phansalkar he did not state about theadmission made by Mr. Nanavati to him thathe killed thedeceased as the deceased had connections with his wife. The chowkidar said that he had told this also to sub-Inspector Phansalkar. Sub-Inspector Phansalkar said that Puransingh had not made this statement to him. You will remember that this chowkidar went to the police station at Gamdevi togive information about this crime and whilecomingback he waswith Sub- InspectorPhansalkar and Sub-Inspector Phansalkarin his ownstatement to Mr.
Mokashi has referred tothe conversation which he had between him and this witness Puransinghand that hadbeen broughton record as a contradiction.” The learned Sessions Judge then proceeded to state other circumstances and observed,”Consider whether you will accept the evidence of Puransingh or not.” It ismanifest from the summing-up that the learned Sessions Judge not only read to the jury the evidence of Phansalkar wherein he stated that Puransinghdid not tell him that the accused told him why he killed Ahuja but also did not tell the jury that the evidence of Phansalkar was not admissible to contradict the evidenceof Puransingh. Itis notpossible to predicate what was the effect of the alleged contradiction on the mind of the jury and whether they had not rejected the evidence of Puransingh 618 becauseof that contradiction. If the said evidence was not admissible, the placing of that evidence beforethe jury was certainly a grave misdirection which must have affected their verdict. The question is whether such evidence is legallyadmissible. The alleged omission was brought on record inthe cross-examinationof Phansalkar, and, after havingbrought it in, it was sought to be used to contradict the evidence of Puransingh.Learned Attorney-General contends that the statement made by Phansalkar to Inspector Mokashi could be usedonly to contradict the evidence of Phansalkar and not that of Puransingh under s. 162 of the Code of Criminal Procedure;
and the statement made by Puransinghto Phansalkar, it not having been recorded, could not be usedat allto contradict the evidenceof Puransingh under the said section. He further argues that the alleged omission not beinga contradiction, it could in no event be usedto contradict Puransingh.Learnedcounsel for the accused, on the otherhand, contendsthat the alleged statement was made to a police officer before the investigation commenced and, therefore, it wasnot hitby s. 162 of the Code of Criminal Procedure, andit could be used to contradict the evidence of Puransingh. Section 162 of the Code of Criminal Procedure reads:
“(1) No statement made by any person to aPoliceofficer in the course ofan investigation under this Chapter shall,if reduced into writing be signed by the person making it;nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record,be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
619 “Provided that when any witnessis called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872), and when any partof such statement isso used, anypart thereof may alsobe used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.” The preliminary condition forthe application of s. 162of theCode isthat the statement should have been made to a police-officer in the course of an investigation under Chapter XIV of the Code.
If itwas not madein the course of such investigation, the admissibility of such statement would not be governedby s. 162 of the Code. The question, therefore, is whether Puransingh made the statement to Phansalkar in thecourseof investigation. Section154 ofthe Code says that every information relating tothe commissionof cognizable offence if given orally to an officer in charge of a police-station shall be reduced to writing by him or under his direction; and section 156(1) is to the effect that any officer in charge of a police-station may, without theorder of a Magistrate, investigateany cognizable case which a court having jurisdiction over thelocal area within the limits of such station would have power to inquire into or try underthe provisions of Chapter XIV relating to the place of inquiry or trial.The evidencein the case clearly establishes that Phansalkar, being the Station House Duty officer atGamdevi Police-stationon April 27, 1959, from 2 to 8 P. M. was an officer in charge of the 620 Police-station within the meaning ofthe said sections. Puransingh in his evidence says that he went to Gamdevi Police-station andgave the information ofthe shootingincident to the Gamdevi Police.Phansalkar inhis evidence says that on the basis of the information he went along with Puransingh to the place of the alleged offence. His evidence also discloses that he had questioned Puransingh,the doctor and also Miss Mammie in regard to the saidincident. On this uncontradicted evidencethere cannot be any doubt that the investigation ofthe offence had commenced and Puransingh made the statement to the policeofficerin the course ofthe said investigation.But it is said that, as the information given by Puransingh was not recorded by Police Officer Phansalkar as he should do under s. 154of theCode of Criminal Procedure,no investigation in law could have commenced with the meaning of s.156 ofthe Code. The question whether investigation had commenced or not is a question of fact and it does not depend upon any irregularity committedin the matter of recording the first information reportby theconcerned police officer.If so,s. 162of the Codeis immediately attracted.Under s. 162(1) of the Code, no statement made by any person to Police- officer in the courseof an investigation can be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement made. But the proviso lifts the ban and says that when any witness is called for the prosecution insuch inquiryor trial whose statement has been reduced into writing, any part ofhis statement, if duly proved, may be used by the accused to contradict such witness. The proviso cannot be invokedto bring in the statement madeby Phansalkarto Inspector Mokashi inthe cross-examinationof Phansalkar, forthe statement made by him was not used to contradict the evidence of Phansalkar. The proviso cannot obviously apply to the oral 621 statement madeby Puransingh to Phansalkar, for the said statement ofPuransingh hasnot been reducedintowriting. The faint argumentof learnedcounsel for theaccusedthat the statement of Phansalkar recorded byInspector Mokashi can be treated as a recorded statement of Puransingh himself is to be stated only tobe rejected, for it isimpossible to treat the recorded statement of Phansalkar as the recorded statement of Puransingh by a police-officer.If so, thequestion whether the alleged omission of what the accused toldPuransingh in Puransingh’s oral statementto Phansalkar could be used to contradict Puransingh,in view of the decision of this Court in Tahsildar Singh’s case(1), does not arise for consideration. Weare,therefore, clearly of the opinionthat not only the learned Sessions Judgeacted illegallyin admitting the alleged omission in evidence to contradict the evidence ofPuransingh, but also clearly misdirected himself in placingthe said evidence before the jury for their consideration.
In addition to the misdirections pointed out by theHigh Court, the learned Attorney-General relied upon another alleged misdirection by the learned Sessions Judge in his charge. In paragraph 28 of the charge, the learned Sessions Judge stated thus:
“No one challenges the marksmanship of the accused but CommodoreNanda had come to tell you that heis a good shot and Mr.
Kandalawala said that here was a man and good marksman, would have shothim, riddled him with bullets perpendicularly and not that way and he further said that as it is not done in this case it shows that the accused is a good marksman and a good shot and he would not have done this thing, this is the argument.” The learned Attorney-General points out that the learned Sessions Judge was wrong in saying that 622 no one challenged the marksmanship of the accused, for Commodore Nanda was examined at length on the competency of the accused as a marksman. Though this isa misdirection, we do not think that the said passage,havingregardto the other circumstances of the case, could have in any way affected theverdictof the jury. It is, therefore, clear that there were grave misdirections in this case, affecting the verdict of the jury, and the High Court wascertainly within its rights to consider the evidence and come to its own conclusion thereon.
The learned Attorney-General contends that if he was right in his contention that the High Court could consider the evidence afresh and come to its own conclusion,in view of the said misdirection, this Court should not, inexercise of its discretionary jurisdiction under Art.136 of the Constitutions interferewith the findings of the High Court. There is force in this argument. But, as we have heard counsel atgreat length,we propose to discuss the evidence.
We shall now proceed to consider the evidence in thecase. The evidence canbe divided into three parts, namely, (i) evidence relating to the conductof the accused before the shooting incident, (ii)evidence in regard to the conduct of theaccused afterthe incident,and (iii) evidence in regard tothe actual shooting in the bed-room of Ahuja.
We may start with the evidence of the accused wherein he gives the circumstances under which he came toknow of the illicit intimacy of his wife Sylvia with the deceased Ahuja, and the reasons for which he went to the flat of Ahuja in the evening of April 27, 1959. After his brother and his brother’s wife, who stayed with him for a few days, had left, hefound his wife behaving strangely andwithout affection towards him.
Though on that ground he was unhappy and worried, he did not 623 suspect of herunfaithfulnessto him. On the morning of April 27, 1959, heand his wife took out their sick dog to the Parel Animal Hospital.
On their way back, they stopped atthe Metro Cinema and his wife bought some tickets for the 3- 30 show. After cominghome, they were sitting in the room for the lunch to be served when he put his arm around his wife affectionately and she seemed to go tense and was very unresponsive.
After lunch, when hiswife was reading in the sitting room, he told her “Look, we must get these things straight” or something like that, and “Do you still love me?” As she did not answer,he asked her “Are you in love with some one else?”, but she gave no answer. At that time he remembered that she had not been to a party given by his brother when he was away on the sea and when asked why shedid not go, she told him that she had a previous dinner engagement with Miss Ahuja. On the basis of this incident, he asked her “Is it Ahuja ?” andshe said “Yes” When he asked her “Have you been faithful to me ?”, she shook her headto indicate “No.” Sylvi in her evidence, as D. W. 10, broadly supported this version. It appears to us that this is clearly a made-up conversation and an unnatural one too. Is it likely that Nanavati, who says in his evidence that prior to April 27, 1959, he didnot think that his wife was unfaithful to him, would have suddenly thought thatshe had a lover on the basis of a trivial circumstance of her being unresponsive when he put his arm around her affectionately ? Her coldness towards him might have been due to many reasons. Unless he had a suspicion earlier orwas informed by somebody that she was unfaithful to him, this conduct of Nanavati in suspecting his wife on the basis of the said circumstance does not appearto be the natural reaction of a husband. The recollection of her preferenceto attend the dinner given by Miss Mammie to that of his brother, in the absence 624 of an earlier suspicion or information, could not have flashed on his mind the image of Ahuja as a possible loverof hiswife. There was nothing extraordinary in hiswife keeping a previous engagement withMiss Mammie and particularly when she could rely upon her closerelations notto misunderstand her. The circumstances under which the confessionof unfaithfulness is allegedto have been made do not appear to be natural. This inference is also reinforced by the fact that soon after the confession, which is alleged to have upset him so much, he is said to have driven his wife and children to the cinema. If the confession of illicit intimacy between Sylvia and Ahuja was made sosuddenly at lunch time, even if she had purchased the tickets, it is not likely that he would have taken her and thechildren to the cinema. Nanavati thenproceeds to say in his evidence : onhis wife admitting her illicit intimacy with Ahuja, he was absolutely stunned; he then got up and said that he must go and settle the matter with the swine; he asked her what were the intentionsof Ahuja and whetherAhuja was prepared to marry her and look after the children;
he wanted anexplanation from Ahuja for his caddishconduct. Inthe cross-examinationhe further elaborated on his intentions thus :He thought of having the matters settled with Ahuja;
he would find out from him whether he would take an honourable way outof thesituation; andhe would thrash him if he refused to do so. The honourable course which heexpected of the deceased was to marry his wife and look after the children. He made it clear further that when he went tosee Ahuja the main thing in his mind was to findout what Ahuja’s intentions were towards his wife andchildren andto find out the explanation for hisconduct. Sylvia in her evidence saysthat when she confessed her unfaithfulness to Nanavati the latter suddenly got up rather excitedly and said that he wanted to go 625 to Ahuja’s flat and square up the things. Briefly stated,Nanavati, accordingto him, wentto Ahuja’sflatto ask for an explanation for seducing his wife and to find out whether he would marry Sylvia and take care of the children. Is it likely that a person,situated as anavati was, would have reacted in the manner stated by him? It is true thatdifferent persons react, under similar circumstance, differently. A husbandto whom his wife confessed of infidelity may kill his wife, another may killhis wife as well as her paramour, the third, who is more sentimental. may commit suicide, and the more sophisticated one may give divorce to her and marry another. But it is most improbable, even impossible, that a husband who has beendeceived byhis wife would voluntarily go to the house of his wife’s paramour to ascertain his intentions, and, what is more, to ask himto take charge of his children. What was the explanationNanavati wanted to get from Ahuja ? His wife confessed that she had illicit intimacy with Ahuja. She is not a young girl, but a woman with three children. There was no questionof Ahuja seducing an innocent girl, butboth Ahuja and Sylvia must have been willing parties to the illicit intimacy between them.That apart, it is clear from the evidence that Ahuja and Sylvia had decidedto marry and, therefore, no further elucidation ofthe intention of Ahuja by Nanavati was necessary at all.It is true that Nanavati says inhis evidencethat when he asked her whether Ahuja was prepared to marry her and look after the children, she did not give any proper reply; and Sylvia alsoin her evidence says that when her husband asked her whetherAhuja was willing to marry her and look after the children she avoided answering that question as she was too ashamed to admit that Ahuja was trying to back out from the promise to marry her. That this version is not true isamply borne out by the letters written by Sylvia to 626 Ahuja. The first letter written by Sylvia is dated May 24,1958, but that was sent to him only on March 19, 1959, along with another letter. In that letter dated May 24, 1958, she stated:
“Last night when youspoke about your need to marry and about the various girls you may marry,something inside me snapped and I know thatI couldnot bear the thoughtof your loving or being close to someone else.” Reliance is placed upon these words by learned counselfor the accused in support of his contention thatAhuja intendedto marry another girl. But this letteris of May 1958 and by that time it doesnot appear that there was any arrangement between Sylvia and Ahuja to marry. It may well have been that Ahuja was telling Sylvia about his intentions to marry another girl to make her jealous and to fall in for him. But as days passedby, the relationshipbetweenthem had become very intimate and they began to love each other. In the letter dated March 19, 1959, she said : “Take a chance on our happiness, my love. I will do my best to make you happy; I love you, I want you so much that everything is bound to work out well.” The last sentence indicates that they had planned to marry. Whatever ambiguity there may be in these words, the letterdatedApril 17, 1959, written ten days priorto the shooting incident, dispels it; therein she writes “In any case nothing is going to stop my coming toyou. Mydecision is made and I do not change my mind. I am taking this month so that we may afterwards say we gave ourselves every chance and we know what we are doing. I am torturing myself in every possible way as you asked, so that, there will be no surprise afterwards”.
627 This letter clearly demonstrates that she agreed not tosee Ahuja for a month, not because that Ahuja refused to marry her, but because it was settled that they should marry, and that in view of the far-reaching effects of the separation from her husband on her future life and that of her children, the lovers wanted to live separately to judge for themselves whether they really loved each other so much as to marry. In the cross- examination shetried to wriggle outof these letters and sought toexplain them away; but the clear phraseology of the last letterspeaks for itself, and her oral evidence, contrary to the contents of the letters, must be rejected. We have no doubt that her evidence, not only in regard to the question of marriage but also in regardto other matters,indicates thathavinglost her lover, out of necessity or out of deep penitence for herpast misbehavior, she is out to help he husband in his defence. This correspondence belies the entire story thatSylvia did notreplyto Nanavati when the latter asked her whether Ahuja was willing to marry her and that was the reason why Nanavati wanted tovisit Ahuja to ask him about him intentions. We cannot visualize Nanavati as a romantic lover determined to immolate himself to giveopportunity tohis unfaithful wifeto start anew life of happinessand love with her paramour afterconvincing him thatthe only honourable course open to him was to marry her and take over his children. Nanavati was not ignorant of the ways oflife or so gullible as to expect any chivalry or honour in a man like Ahuja. He is an experienced Naval Officer and not a sentimental hero of a novel. The reason therefore for Nanavati going to Ahuja’s flat must be something other than asking him for an explanation and to ascertain his intention aboutmarrying hiswife and looking after the children.
628 Then, according to Nanavati, hedrove his wife and children to cinema, and promising them to come and pick them up at the end of the show at about 6p. m.,he drove straight to his ship. He would say that he went to his ship to get medicine for his seek dog. Though ordinarily this statement would be insignificant, in the context of the conduct of Nanavati, it acquires significance. In the beginning of his evidence, he says that on the morning of the day of the incident he and his wife took out theirsick dog tothe Parel Animal Hospital. It is not his evidence that after going to thehospital he want tohis ship before returning home.It isnot even suggested that in the ship there was a dispensary catering medicine for animals. This statement, therefore, is not true and he did not go to the ship for getting medicine for his dog but for some other purpose, and that purpose is clear from hissubsequent evidence. He met Captain Kolhi and asked for his permission to draw arevolver and six rounds because he was going to driveto Ahmednagarby night. Captain Kolhi gave him the revolver and six rounds, he immediately loadedthe revolver with all thesix rounds and put the revolver inside an envelope whichwas lying in his cabin. It is not the case of the accused that he really wanted to go to Ahmednagar and he wanted the revolver for his safety. Then why did he take therevolver? According to him he wanted to shoot himself after driving far away from his children. But he did not shoot himself either before or afterAhuja was shot dead. The takingof therevolver on false pretextand loadingit with sixcartridges indicate the intention on his part to shoot somebody with it.
Then the accused proceeded to state that he put theenvelope containing the revolver in his car andfound himselfdriving to Ahuja’s office.
At Ahuja’s office he went in keeping the revolver in the car, and asked Talaja, the Sales Manager of 629 Universal Motors of which Ahuja was the proprietor whether Ahuja was inside. He was told that Ahuja was notthere. Before leaving Ahuja’s office, the accused lookedfor Ahuja in the Show Room, but Ahuja was not there. In the cross examination no question was put to Nanavati in regard to his statement thathe kept the revolver in the car when heentered Ahuja’s office. On the basis of this statement,it iscontended that if Nanavati had intended to shootAhuja he would have taken the revolver inside Ahuja’s office.From this circumstance it is not possible tosay that Nanavati’s intention was not to shoot Ahuja. Even if hisstatement weretrue, it might well have been that he would have gone to Ahuja’s office not to shoot him there but to ascertain whether he had left the office for his flat. Whatever it may be, from Ahuja’s office hestraightway drove to the flat of Ahuja. Hisconductat the flatis particularly significant. His versionis that he parked his car in the house compoundnear the steps, went up the steps, but remembered that his wife had told him that Ahuja might shoot him and so he went back to his car, took the envelope containing the revolver, and went up to the flat.
He rangthe doorbell;when aservant opened the door, he asked him whether Ahuja was in. Having ascertained that Ahuja was in the house, he walked to hisbedroom, opened the door and wentin shutting the door behind him. This conduct is only consistent withhis intentionto shoot Ahuja. A person,who wants toseek an interview with another in order to get an explanation for his conduct or to ascertain his intentions in regard to hiswife and children, would go and sit in the drawing-room and ask the servant to inform his master that he had come to see him. He would not have gone straight into the bed- room of another with a loaded revolver in hand and closed the door behind. This was the conduct of an enraged man who had gone to wreak vengeance on a person who did him a 630 grievous wrong.But itis said that he had taken the loaded revolver with him as his wife had told him that Ahuja might shoot him. Earlier in his cross-examination he said thatwhen he told her that hemust go and settle the matter with the “swine” she put her hand uponhis arm and said, No, No,you must not go there, don’t go there, he may shoot you.” Sylvia in herevidence corroborates his evidence in this respect: But Sylvia has been cross-examined and she said that she knew that Ahuja had a gun and she had seen it in Ashoka Hotel in New Delhi and that she had not seen any revolver at the residence of Ahuja at any time. It is also in evidencethat Ahuja had no licence for revolver and no revolver of his was found in his bed-room.In thecircumstances, we must say that Sylvia was only attempting to help Nanavati in his defence. We thinkthat the evidence of Nanavati supportedby that of Sylvia was a collusive attempt on their part to explain away the otherwise serious implication of Nanavati carrying the loaded revolver into the bed-room of Ahuja. That part of the version of the accused in regard to the manner of his entry into the bed- room ofAhuja, was also supported by the evidence of Anjani (P.W. 8), the bearer, and Deepak, the Cook. Anjani opened the doorof the flatto Nanavati at about 4-20 p. m. He served tea to his master at about 4-15 P. M. Ahuja then telephoned to ascertain the correct time and then went to his bed-room. About fiveminutes thereafter this witness went to the bed-room of hismasterto bring back the tea-tray from there, and at that time his master went into thebath-room for his bath. Thereafter, Anjani wentto the kitchen and was preparing tea when he heard the door-bell. He then opened the door to Nanavati. This evidence shows that at about 4-20 P.M. Ahuja was taking his bath inthe bath-roomand immediately thereafter Nanavati entered the bed-room. Deepak, the cook of Ahuja, also heard the ringing of the 631 door-bell. He saw the accused opening the door of the bed-room with a brown envelope in his hand and calling the accused byhis name “Prem”; he also saw hismatter havinga towel wrapped around his waist and combing hishair standing before the dressing-table, when the accused entered the room and closed the doorbehind him.These two witnesses are natural witnesses and they have been examined by the police on the same day and nothing has been elicited against them to discredit their evidence. Thesmalldiscrepanciesin their evidence do not in any way affect their credibility. A few seconds thereafter, Mammie, the sister of the deceased, heard the crack of the windowpane.The time that elapsed between Nanavati entering the bed-room of Ahuja and her hearing the noise was about 15 to 20 seconds. She describes the time that elapsed between the two events as the time taken by her to take up her saree from the door of her dressing-room and her coming to thebed-room door.Nanavati in his evidence says that he was in the bed-room of Ahuja for about 30 to 60 seconds. Whether it was20 seconds, as Miss Mammie says, or 30 to 60 seconds, as Nanavati deposes, the entire incidentof shooting took place in a few seconds.
Immediately afterthe sounds were heard, Anjani and Miss Mammieentered the bed-room and saw the accused.
The evidence discussedso fardiscloses clearly that Sylvia confessedto Nanavati of her illicit intimacy with Ahuja; that Nanavati went to his ship at about 3.30 P.M. and took a revolver and sixrounds on a false pretext and loaded the revolver with six rounds; that thereafter he went to theoffice of Ahuja to ascertain his whereabouts, but was told that Ahuja had left for his house; that the accused then went to the flat of thedeceased at about 4-20 P.M.; thathe enteredtheflat and then thebed-room unceremoniously with the loaded revolver, closed the door behind him and a few 632 secondsthereafter sounds were heard by Miss Mammie, the sister ofthe deceased, and Anjani, servant; that when Miss Mammie and Anjani entered the bed-room,they saw theaccusedwith the revolver in his hand and found Ahuja lying on the floor of thebath-room. This conduct of the accused to say the least, is very damaging for the defence and indeed in itself ordinarily sufficient to implicate him in the murder of Ahuja.
Now we shall scrutinizethe evidenceto ascertain the conduct of the accused from the time he wasfound in the bed-room of Ahuja tillhe surrendered himself tothe police. Immediately after the shooting, Anjani and Miss Mammie went into the bed-room of the deceased. Anjani says in his evidence that he saw theaccused facing the direction of his master who was lying in the bath- room; that at that time the accused was having “pistol” in his hand;that when he opened the door, the accused turned his face towards this witness and saying that nobody should come in his way or else he would shoot at them, he brought his “pistol” near the chest of the witness; and that in themeantime Miss Mammie came there, and said that the accused had killed her brother.
Miss Mammie in her evidence says thaton hearing the sounds, she went into the bed-room of her brother, and there she saw the accused nearer to theradiogram thanto thedoor with a gun in his hand; that she asked theaccused”whatis this?” but she did not hear the accused saying anything.
It is pointed outthat there are material contradictions betweenwhat was stated by Miss Mammie and what was stated byAnjani. We do not see any material contradictions. Miss Mammie might not have heard whatthe accused said either because she came thereafter the aforesaid words were uttered or because in her anxiety and worry she did not hear the words. The different versions 633 given by the two witness in regard to what Miss Mammiesaid to theaccused is not of any importance as the import of what both of them said is practicallythe same. Anjani opened he door to admit Nanavati into the flat and when he heard the noise he must have entered the room. Nanavati himself admitted that he saw a servant in the room, though he did not know him by name; he also saw Miss Mammie inthe room. These small discrepancies, therefore, do not really affect their credibility. In effect any substance both saw Nanavati with a fire-arm in his hand-though one said pistol and the other gun-going away from the room without explaining to Miss Mammie his conduct and even threatening Anjani. This could only bethe conduct of a person who had committed a deliberate murder and not of one who had shot the deceased by accident. If the accused had shot the diseased by accident, he would have been in a depressed and apologetic mood and would have tried to explain his conductto Miss Mammie or would have phoned for a doctor or asked her to send for one orat anyrate hewould not have been in a belligerent mood and threatened Anjani with his revolver. Learned counsel forthe accused argues that in the circumstances in which the accused was placed soon after the accidental shooting he could not have convinced Miss Mammie with any amount of explanation andtherefore there was no point in seeking to explain his conduct to her. But whether Miss Mammie would have beenconvinced by his explanation ornot, if Nanavati hadshot the deceased by accident, he would certainly have told her particularly when he knew her before and when she happened to be the sister of the man shot at.
Assuming that the suddenness of theaccidental shooting had so benumbed his senses that he failed to explain the circumstances of the shooting to her, the same cannot be said when he met others at the gate. After the accused had come out of the flat of Ahuja, 634 he gotinto his car and took a turn in the compound. Hewas stopped near the gateby Puransingh, P.W. 12, the watchman of the building.
As Anjani had told him that the accused had killed Ahuja the watchman asked him why he had killed his master. The accused told him that he had a quarrel with Ahuja as the latter had”connections” with his wife and therefore he killed him. The watchman told the accused thathe should not go away from the place before thepolicearrived, but the accused told him thathe was going to the police and that if he wanted he could also come with him in thecar. Atthat time Anjani was standing in front of the car and Deepak was a few feet away.
Nanavati says in his evidence that it was not true that hetold Puransingh that he had killed the deceased as the latterhad “connection” with his wife and that the whole ideawas quite absurd.
Puransingh is not shaken in his cross-examination.
He is an independent witness;thoughhe isa watchman of Jivan Jyot, he was not an employee of the deceased. After the accused leftthe place, this witness, at the instance of Miss Mammie, went to Gamdevi Police Stationand reported the incident to the police officer Phansalkar, who was in charge of the police station at that time, at about 5-5 P.M.and came along withthe said police-officer in the jeep to Jivan Jyot at about 7 P.M.he wentalong with the police-officer to the police station where his statement was recorded by Inspector Mokashilate in the night.
It is suggested that this witness had conspired with Deepak and Anjaniand that he was giving false evidence.We donot seeany force in this contention. Hisstatement wasregarded on the night of the incident itself. It is impossible to conceive that Miss Mammie, who must have hada shock, would have been in a position to coach him up to give a false statement. Indeed, her evidence discloses thatshe was drugged to sleep that night. Can it be said that these two illiterate 635 witnesses, Anjani and Deepak, would have persuaded him tomake afalse statement that night. Though both of themwerepresentwhenPuransingh questioned theaccused, they deposedthat they were at a distance and therefore they did not hear what the accused told Puransingh. If they had all colluded together and were prepared to speak to a false case, they could haveeasilysupported Puransingh by stating that they alsoheard what the accused told Puransingh. We also do not think that the two witnessesare sointelligent as to visualize the possible defenceand before hand coached Puransingh to make a false statement on the very night of the incident. Nor do we find any inherent improbabilityin hisevidence if really Nanavati had committed the murder. Having shot Ahuja he was going to surrender himself to the police; he knew that he had committed a crime; he was nota hardened criminal and must have had a moral conviction that he was justified in doing what hedid. It was quite natural, therefore, for him to confess his guilt andjustify his act to the watchman who stopped him and asked him to wait there till the policecame. In the mood in which Nanavati was soon after the shooting, artificial standards of status orposition wouldnot have weighed in his mind if he was going to confess and surrender to the police. We have gone through the evidence of Puransingh and wedo not see any justification to reject his evidence.
Leaving Jivan Jyot the accused drove his car and came to Raj Bhavan Gate. There he met a police constable and asked him for the location of the nearest police station. The direction given by the police constable were not clear and,therefore, the accused requested him to go along with him to the police station, but the constabletold him that ashe wason duty, he could not follow him.
This 636 is a small incident in itself, but it only shows that the accused was anxious to surrender himself to thepolice.This would not havebeen the conduct of the accused, if he had shot another by accident, for in that event he would have approached a lawyer or a friend for advice before reporting the incidentto the police. As the police constable was not able to give him clear directions inregardto thelocation of the nearest policestation, the accused went to the house of Commander Samuel, the Naval Provost Marshal. What happened betweenthe accused the Samuel is stated by Samuel in his evidence as P.W.
10. According to his evidence, on April 27, 1959, at about 4.45 P.M., he was standing at the window of hisstudy in his flat on the ground floor at New Queen’s Road. His windowopens out on the road near the band stand. The accused came up to the window and he was in a dazed condition. The witness asked him what had happened, and the accusedtold him “Ido notquite know what happened, but I thinkI have shot aman.” The witness asked him how it happened, and the accused told him that the man had seduced his wife and he would not stand it. When the witness asked him to comeinside and explain everything calmly, the accused said “No, thank you, I must go”, “please tell mewhere I should go and report”. Though he asked him again to come in, the accused did not go inside and, therefore, this witness instructed him to go to the C.I.D. Office and report to the Deputy Commissioner Lobo. The accused asked him to phone to Lobo and he telephoned to Lobo and told him that an officer by name Commander Nanavati was involved in an affairand that he was on the way to report tohim. Nanavatiin his evidence practically corroborates the evidenceof Samuel.
Nanavati’s version in regard to this incident is as follows:
“I told him that something terrible had happened, that I did not know quite what 637 had happened but I thought I had shot a man.
He asked me wherethis had happened. I told him at Nepean Sea Road. He asked me Why I had been there. I told him I went there because a fellow there had seduced my wife and I would not standfor it.He asked me many times to go insidehis room. But I was not willing to do so, I was anxious togo to the police station. Itold CommanderSamuel that there had been a fightover a revolver. Commander Samuel asked to report to Deputy Commissioner Lobo.” The difference between the two versions lies in the fact that while Nanavati said that he told Samuelthat something terrible hadhappened, Samuel did not say that; while Nanavati said that he toldSamuel that there had been a fight over a revolver, Samuel did notsay that. But substantially both of them say that though Samuel asked Nanavatimore than once to get inside the house and explain to him everything calmly, Nanavati did not do so; both of them also deposed that the accused told Samuel, “I do not quite know what happened but I think I have shot a man.” It may bementioned that Samuel is a Provost Marshal of theIndian navy, and he and the accused are of the same rank though the accused isseniorto Samuel as Commander. As Provost Marshal, Samuel discharges police duties inthe navy. Isit probable thatif the deceased was shotby accident, the accused would not have stated that fact tothis witness?Is it likely that he would not have stepped into his house, particularly when he requested him morethan once to come in and explain to him how the accident had taken place ? Would he not have taken his advice as a colleague before he proceeded to the police stationto surrender himself ? The only explanation for this unusual conducton thepart of the accusedis that, having committed the murder, hewanted to surrender himself to 638 the police and tomake acleanbreastof everything. What is more, when hewas asked directly that had happened he told him “I do not quite know what happened but I think I have shot a man”. When he was further asked how it happened, that is, how he shot the man he said that the man had seduced his wife and that he would not stand for it.In thecontext, twoanswers read along with the questions put to him by Samuel only mean that, as the deceased had seduced his wife, the accused shot him as he would not stand for it. If really the accused shot the deceased by accident, why didhe notsay that fact to his colleague, particularly when it wouldnot only be his defence, if prosecuted, butit would puta different complexion to his act in the eyes of his colleague. Butstrong relianceis Placed on what this Witness stated in the cross-examination viz., “I heard the word fight fromthe accused”, “I heard some other wordsfrom the accused butI could not make out a sense out of these words”.
Learned counsel for the accused contends that this statement showsthat the accused mentionedto Samuel that the shooting of tho deceased was in a fight. It is not possible tobuildupon such slender foundation that the accused explained to Samuel that he shot the deceased by accident in a struggle. The statement in the cross-examination appears to us to be an attempt on the part of this witness to help his colleague by saying something which may fit in the scheme of his defence, though at thesame time heis not willing to lie deliberately inthe witness-box, for he clearly says that he could not make out the sense of the words spoken along with the word “fight”. This vaguestatement ofthiswitness, without particulars, cannot detract from the clear evidence given by him in the examination-in-chief.
What Nanavati said to the question put by the Sessions Judgeunders. 342of the Codeof Criminal Procedure supports Samuel’s version. The 639 following question was put to him by the learned Sessions Judge :
Q.-Itis alleged againstyou that thereafter as aforesaid you went to Commander Samuel atabout 4-45 P.M. and told him that, something terriblehad happened and that you did not quite know but you thought that you shot a man as he had seduced your wife which you could not stand and that on the advice of Commander Samuel you then went to Deputy Commissioner Lobo atthe Head Crime Investigation Department office. Do you wish to say anything about this? A.-This is correct.
Here Nanavati admits that he told Commander Samuel that heshot the man as he had seduced his wife.
Learned counselfor the accused contends that the question framed wasrather involved and, therefore, Nanavati might not have understood its implication. But it appears from thestatement that, after the question were answered, Nanavati read his answers andadmitted thatthey were correctly recorded. The answer is also consistent with what Samuel saidin his evidence as to what Nanavati told him. This corroborates the evidence of Samuel that Nanavati told him that, as the man had seduced his wife, he thought that he had shot him. Anyhow, the accused did not tell the Court that he told Samuel that he shot the deceased in a fight.
Then the accused, leaving Samuel, went to the office of the Deputy Commissioner Lobo. There, he made astatement toLobo. At that time, Superintendent Korde and Inspector Mokashi were also present. On the information given by him, Lobo directed Inspector Mokashi totake the accused into custody and to take charges of the articles and to investigate the case.
640 Lobo says in his evidence that he receiveda telephone call from Commander Samuel to the effect that he haddirected Commander Nanavatito surrender himself to him as he had stated that J he had shot a, man. This evidence obviously cannot be usedto corroborate what Nanavati told Samuel, but itwould only bea corroboration of the evidence of Samuel that he telephoned to Lobo to that effect. It is not denied that the accused set up thedefence of accident for the first time in the Sessions Court. This conduct of the accused from the time of the shootingof Ahuja to the moment he surrendered himselfto thepoliceis inconsistent with the defencethat the deceased was shot by accident. Though tho accused had many opportunities to explain himself, he did not do so; andhe exhibited the attitude of a man who wreaked out his vengeance in the manner planned by him and was only anxious to make a clean breast of everything to the police.
Now we will consider what had happened in the bed-room and bath-roomof the deceased. But before considering the evidence on this question, we shall try to describe the scene of the incident and other relevant particulars regarding the things found therein.
The building “Jivan Jyot” is situatein Setalvad Road,Bombay.Ahuja was staying on the first floor of that building. As one goes up the stairs, there is a door leading into the hall; as one enters the hall and walks a few feet towards the north he reaches a door leading into bed-room of Ahuja. In the bed-room, abutting the southern wall there is a radiogram; just after the radiogram thereis a door onthe southern wall leading to the bath-room, on the eastern side of the door abutting thewall there is a cupboard with amirror thereon; in the bath-room, which is of thedimensions 9 feet x 6 feet, there isa commode in the front along the 641 wall, above the commode there is a window with glass panes overlooking the chowk, on the east of the commode there is a bath-tub, on the western side ofthe bathroom there is a door leading into the hall; on the southern side of the said door there is a wash-basin adjacent to the wall.
After theincident the corpse ofAhuja was found in the bath-room; the head of the deceased was towards the bed-room and his legs were towards the commode. He was lying with his head on his right hand. This is the evidence of Miss Mammie, and she has not been cross-examined on it. It is also not contradicted by anywitness. The top glass pane of the window in the bath-room was broken. Pieces of glass were found on the floor of the bath-room between the commode andthe wash- basin. Between the bath-tub and the commode a pair of spectacles was lying on the floor and there were also two spent bullets. One chappal was found between the commode and the wash basin, and the other was found in the bedroom. A towel was found wrapped aroundthe waist of the deceased. The floor of the bath room was blood stained. There was white handkerchief and bath towel, which was blood stained lying on the floor. The western wall was found to be blood stained and drops of blood were tricklingdown.The handle ofthe door leading to the bath-room from the bed-room and a portion of the door adjacent to the handle were bloodstained from the inner side. The blood on the wall was little a over three feet from the floor.
On thefloor of the bed-roomthere was an empty brown envelope with the words “Lt. Commander K. M.
Nanavati” written on it. There was no mark showing that the bullets had hit anysurface. (See the evidence of Rashmikant, P.W. 16) On the dead-body the following injuries were found :
(1) Apunctured wound 1/4″X 1/4″X chest cavity deep just below and inside the inner 642 end of the right collar bone with an abrasion collar on the right side of the wound.
(2) Alacerated punctured wound in the web between the ring finger andthe little finger ofthe left hand 1/4″ X 1/4″ communicating witha punctured wound 1/4X 1/4″ on the palmer aspect of the left hand at knuckle level between the left little and the ring finger. Both the wounds were communicating.
(3) Alacerated ellipsoid wound oblique in the left parietal region with dimensions 1 1/3″ X 1/4″ X skull deep.
(4)A laceratedabrasion with carbonaceous tatooing 1/4″ X 1/6″ at the distal endof theproximal interphalangeal joint of the left index finger dorsal aspect.
That meansat thefirst joint of the crease of the index finger on its dorsal aspect, i.e., back aspect.
(5)A laceratedabrasion with carbonaceous tatooing 1/4″ X 1/6″ at the joint level of the left middle finger dorsal aspect.
(6) Verticalabrasion insidethe right shoulder blade 3″X 1″just outside the spine.
On internal examination the following wounds were found by Dr. Jhala, who performed the autopsy on the dead-body. Under the first injury there was:
“A small ellipsoid wound oblique in the front ofthe piece ofthe breast bone (Sternum) upper portion right side centre with dimensions 1/4″ x 1/3″ and at the back of the bone there was a lacerated wound accompanied by irregular chipfracture corresponding to external injuryNo. 1,i, e., the punctured wound chest cavity deep.
Same wound continued in the contusion in area 3″ x 1 1/4″ in the right lung upper lobe front border middle portion front and back.
Extensive clots were seen 643 in the middle compartmentupperand front part surrounding the laceration impregnated pieces of fractured bone. There was extensive echymosis and contusion around the root of the rightlungin the diameter of2″ involving also the inner surface of the upper lobe. There were extensive clotsof blood around theaorta. The left lung was markedly pale and showed athrough and through wound in the lower lobebeginning at the inner surface just above the root opening out in the lacerated ground in the back region outer aspect atthe level between 6th and 7th ribs left sidenot injuring the rib and injuring the spacebetween the 6th and 7th rib left side 2″ outside the junction ofthe spine obliquely downwardand outward. Bullet was recoveredfrom tissues behindthe left shoulder blade. The woundwas laceratedin the wholetractand was Surroundedby contusion of softer tissues.” The doctor says that the bullet, after entering “the inner end, went backward, downward and then to the left” and therefore he described the ground an ellipsoid and oblique”. Ho also points out that the abrasion collar was missing on the left side.
Corresponding to the externalinjury No. 3, the doctor found on internal examinationthat the skull showed a haematoma under the scalp, i.e., on the left parietal region ; the dimension was 2″ X 2″. Theskull cap showed a gutter fracture of the outer table and a fracture of the inner table. The brain showed sub-arachnoid haemorrhageover the left parieto-occipitalregionaccompanying the fracture of the vault of the skull.
A description ofthe revolver with which Ahuja was shot and the manner of its working would be necessary to appreciate the relevant evidence in that regard. Bhanagay, the Government 644 Criminologist,who was examined as P.W.4, describes the revolverand the manner of its working. The revolver is a semi-automatic one and it is six-chambered. To load the revolver one has to release the chamber; when the chamberis released, it comes outon the leftside. Six cartridges canbe inserted in the holes of tho chamber and then the chamber is pressed to the revolver. Afterthe revolver is thus loaded, for the purpose of firing one has to pull the trigger of therevolver; whenthe trigger is pulled the cartridge gets cocked and the revolver being semi- automatic the hammer strikes the percussion cap of the cartridge and the cartridge explodes and the bullet goes off. For firing the second shot, the trigger has tobe pulled again andthe same process will have to be repeated each time it is fired. As it is not an automatic revolver, each time it is fired, the trigger has to be pulled and released. Ifthe trigger is pulled but not released, the second round will not come in its position of firing. Pulling of the trigger has a double action-one is the rotating of the chamber and cocking, and theother,releasing of the hammer. Becauseof this double action, the pull must befairly strong.A pressure ofabout20 pounds is required for pulling the trigger. There is controversy on the question of pressure, and we shall deal with this at the appropriate place.
Of the three bullets fired fromthe said revolver, two bullets were found in the bath-room, and thethird was extracted from the back of the left shoulder blade. Exs. F-2 and F-2a are the bullets found in the bath-room. These two bullets are flattened and the copper jacket of one of the bullets, Ex. F-2a, hasbeen turn off. The third bullet is marked as EX. F-3.
With thisbackground let US now consider the evidence to ascertain whetherthe shooting was intentional, as the prosecution avers, or only 645 accidental, asthe defence suggests.Excepting Nanavati, the accused, and Ahuja, the deceased, no other person was present in the letter’s bed-room when the shooting took place. Hencethe only person who can speak to the said incident is the accused Nanavati. The versionof Nanavati,as given in his evidencemay bestatedthus:He walked into Ahuja’s bed-room, shutting the door behind him. Ahuja wasstanding in front of the dressing-table. The accused walked towards Ahuja and said, “You are a filthy swine”, and asked him, “Are you going to marry Sylvia and look after the kids?” Ahuja became enraged and said in a nasty manner, “Do I have to marry every woman that I sleep with ?” Then the deceased said, “Get the hell out of here, otherwise,I willhave you thrown out.” The accused became angry, but the packet containing the revolverdown on a cabinet which was near him and told him, “ByGod Iam going to thrash you for this.” The accused had his hands up to fight the deceased, but the latter made asudden grab towards the packet containing the revolver. The accused grappled the revolver himself and prevented the deceases from getting it. Hethen whipped out the revolver and told the deceased to get back. The deceased was very close to him and suddenly caught with his right hand the right hand of the accused at the wrist and tried to twist it and take the revolver off it. The accused “banged” the deceased towards the door of the bath-room,but Ahuja would not let go of his grip and tried to kick the accused with his knee in thegroin. The accused pushed Ahuja again into the bath-room, trying at the same time desperately to freehis hand from the grip of the accused by jerking it around. The deceased had a very strong grip and he did not let go the grip. During the struggle, the accused thought that two shots went off: one went first and within a few seconds another. At the first shot the deceased just kept 646 hangingon tothe hand ofthe accused, but suddenly he let go his hand and slumped down. When the deceased slumped down, the accused immediately came out of the bath-room and walked downto report to the police.
By this description theaccusedseeksto raise the image that he and the deceased were face to facestruggling for the possession of the revolver, the accused trying to keepit and the deceased trying to snatch it, the deceased catching hold of the wrist ofthe right hand of the accused and twisting it,and the accused desperately trying to free his hand from his grip;
and inthe struggletwoshotswent off accidentally-he does not knowaboutthe third shot-and hit the deceased and causedhis death.
But inthe cross-examinationhe gave negative answers to most of the relevant questions put to him totest the truthfulness of his version. The following answers illustrate his helpful attitude in the court:
(1) I do not remember whether the deceased had the towel on him till I left the place.
(2) Ihad noidea where the shots went because we were shuffling during the struggle in the tiny bath-room.
(3) Ihave no impression from where and how the shots were fired.
(4) Ido notknow anythingabout the rebound of shots or how the shots went off.
(5) Ido not evenknow whether the spectacles of the deceased fell off.
(6) Ido notknow whether I heard the third shot. My impression is that I heard two shots.
(7) I do not remember the details of the struggle.
(8) Ido notgive any thought whether the shooting was an accident or not, because 647 I wished to go to the police and report to the police.
(9) Igave no thought to this matter. I thought that something serious had happened.
(10) I cannot say how close we were to each other, we might be very close andwe might be at arm’s length during the struggle.
(11) I cannot say how the deceased bad his grip on my wrist.
(12) I do not remember feeling any blows from the deceased by his free hand during the struggle; but be may have hit me.
He gives only a vagueoutline of the alleged struggle between him and thedeceased. Broadly lookedat, the version given by the accused appears to be highly improbable. Admittedly he bad enteredthe bedroom ofthedeceased unceremoniously with a fullyloadedrevolver;
within half a minute he cameout ofthe room leaving Ahuja dead with bullet wounds. The story of his keeping the revolver on the cabinet is very unnatural. Evenif hehad kept it there, how did Ahuja come to know that it was a revolver for admittedly it was putin an envelope. Assuming that Ahuja hadsuspected that it might bea revolver, how could hehave caught the wrist of Nanavati who had by that time the revolver in his hand with his finger on the trigger? Even if he was able to doso, how did Nanavatiaccidental pull the trigger three times and release it three times when already Ahuja was holding his wrist and when hewas jerking his handto release it from the grip of Ahuja ? It also appears to be rather curious that both the combatants did not use their left hands in the struggle. If, as he has said, there was a struggle between them and he pushed Ahuja into the bath-room, how was itthat the towel wrapped around the waist of Ahuja was intact ? So too, if there was a struggle, why there was no bruise on the body of the accused? Though Nanavati says that 648 there were some “roughings” on his wrist, he had not mentioned that fact till he gave his evidence in thecourt,nor is thereany evidenceto indicate such “roughings”. It is notsuggested that the Clothes worn by the accused were torn or even soiled. Though there was blood up to three feet on the wall of the bath-room, there was not a drop ofblood on theclothesof the accused.
Anotherimprobabilityin the version of the accused is, while he says that in the struggle two shots went off, we find three spent bullets-two of them were found in the bathroom and the other in the body of the deceased. What is more, how could Ahuja have continued to struggle after he had received eitherthe chest injury orthe head injury, for both of them were serious ones. After the deceased received either the first or the third injury there wasno possibility of further struggling or pulling of the triggerby reflex action. Dr. Jhala says that the injury on the head of thevictim was such that the victim could not have been able to keep standing and would have dropped unconscious immediately and that injury No. 1 was also so serious that he could not stand for more than one or two minutes. Even Dr. Baliga admits that the deceased would have slumped down after the infliction of injury No. 1 or injury No.
3 and that either of them individually would be sufficient to cause the victim to slump down. It is, therefore, impossible that after either of the said two injuries wasinflicted, the deceased could have still kepton strugglingwith the accused. Indeed, Nanavati saysin his evidence that atthe first shot the deceased just kept on hanging to his hand, but suddenly he let go his grip and slumped down.
The only circumstance that could be relied upon toindicate a struggle is that one of the chappals of the deceased was found in the bed-room while the other was in the bath-room. But that is consistent withboth intentional andaccidental shooting, for in his anxiety to escape from, the line of 649 firing the deceased might have in hurry left his one chappal in the bed-room and fledwith the other to the bath-room. The situation of the spectacles nearthe commode is moreconsistent with intentional shooting than withaccidental shootings, for if there had been a struggle it was more likely that the spectacles would have fallen off andbroken insteadof their being intact by the side of the dead-body. The condition of the bed-room as well as of the bath-room, as described by Rashmikant,the police-officer whomade the inquiry, does not show any indication of struggle or fight in that place. The version of the accused, therefore,isbrimming with improbabilities and is not such that any court can reasonably accept it.
It is said that if the accused went to the bedroom of Ahuja to shoot himhe would not have addressed him by his first names “Prem” as deposed by Deepak. But Nanavati says in his evidence that he would be the last person to address the deceased as Prem. This must havebeenan embellishment on the part of Deepak. Assuming he said it, it does not indicateand sentimentof affection orgoodwill towards the deceased- admittedly he had nonetowards him-but onlyan involuntary and habitual expression.
It is argued thatNanavati is a good shot- Nanda, D.W. 6, a Commodore inthe Indian Navy, certifies that he is a good shot in regard to both moving and stationary targets-and therefore if he had intended to shootAhuja, he would have shot him perpendiculary hitting the chest and not in a haphazard way as the injuries indicate. Assuming that accused is a good shot, this argument ignores that hewas not shooting at an inanimate target for practice but was shooting to commit murder;
and italso ignores the desperate attempts the deceased must have made to escape. The first shot might have been fired and aimed at the chest as 650 soon asthe accused entered the room, and the other two presumably when the deceased was trying to escape to or through the bathroom.
Now on the question whether three shots would have gone off the revolver accidentally, there is the evidence of Bhanagay, P.W. 4,who isa Government Criminologist. The Deputy Commissioner of Police, Bombay, through InspectorRangnekar sent to him the revolver, three empty cartridge cases, three bullets and three live rounds for his inspection. Hehas examined the revolver and the bullets which are marked as Exs. F-2, F-2a and F-
3. He is of the opinion that the said three empties were fired from the said revolver.He speaks to the fact that for pulling the trigger a pressure of 28 poundsis required and that for each shot the triggerhas to be pulled and for another shot to be fired it must be released and pulled again. He alsosays that the charring around the wound couldoccur with the weapon of the type we are now concerned within about 2 to 3 inchesof themuzzleof the weapon and the blackening around the wound describedas carbonaceous tattooing could be caused from such a revolver up to about 6 to 8inchesfrom the muzzle. In the cross examination he says that the flattening of the twodamaged bullets, Exs. F-2 and F-2a, could have been caused by their hitting a flathard surface, and that the tearing of the copper jacket of one of the bullets could have been caused by a heavy impact, such as hitting against a hard surface; it may havealso been caused, according to him, bya human boneof sufficient strength provided the bullet hits the bone tangentlyand passes of without obstruction.
These answers,if accepted-wedo not see any reason why we should not accept them-prove that the bullets, Exs. F-2and F-2a, could have been damaged by their coming into contactwith some hard substance such asa boneHe says in the cross-examination thatone’struggling’ will not cause three automatic firings and tha 651 even if the struggle continues he would not expect three rounds to go off, buthe qualifies his statement by adding that this may happen if the person holding the revolver “co-operates so far as the reflex of his finger is concerned”, to pull the trigger. He further elaborates the same idea by saying that a certain kind of reflex co- operation is required for pulling the trigger and that this reflex pull could be either conscious or unconscious. This answer is strongly relied upon by learned counsel forthe accused in support of his contentionof accidental firing.He argues that byunconscious reflex pull of the trigger three times by the accuses three shots could have gone off the revolver.But the possibilityof three rounds going off by three separate reflexes of the finger of the person holding the trigger is only atheoretical possibility, and that too only on theassumption of a fairly long struggle. Such unconscious reflex pull of the finger by the accused three times within aspaceof a few seconds duringthe struggle as described by the accused is highly improbable,if not impossible.
We shall consider the evidence of this witness on the question of ricocheting of bullets whenwe deal with individual injuries found on the body of the deceased.
This witness is not a doctor but has received training Forensic Ballistic Identification of Fire Arms) amongst other things in London and possesses certificates ofcompetency from histutorsin London duly endorsed by the covering letter from the EducationDepartment, high commissioner’s office, and he is a Government Criminologist and has been doing this work for the last 22 years; he says that hehas also gained experienceby conducting experimentsby firing on mutton legs.
He stood the test of cross-examination exceedingly well and there is no reason to reject his evidence. He makes the following points: (1) Three used bullets, Ers. F-2, F-2a and F-3, were shot from the revolver Ex.B. (2) The revolver can be fired only by 652 Pulling the trigger; and for shootingthrice, a person Shootingwill have to give a deep pull to the trigger thrice andrelease it thrice. (3) A pressure of 28 pounds is required topull the trigger. (4) one “struggling” will not cause three automatic firings. (5) If the struggle continues and ifthe person who pullsthe trigger co- operates by pulling the trigger three times, three shots may go off. (6) The bullet may be damaged by hitting a hard surfaceor a bone. As we have pointed out the fifth point is only a theoretical possibility based upon two hypothesis, namely, (i) the struggle continues for a considerable time, and (ii) thepersonholdingthe trigger Go- operates by pulling itthrice by reflex action.
This evidence,therefore, establishesthat the bullets went off therevolver brought by the accused-indeed this is not disputed and that in the course of the struggle ofa fewseconds as described by the accused, it is not possible that the trigger could havebeen accidentally pulled three times in quick succession so as to discharge three bullets.
As regardsthe pressure required to pull the trigger of Ex. B, Trilok singh who is the Matter Armorer in the Army, deposing as D.W. 11, does not accept the figure given by the Bhanagay and he would put it at 11to 14 pounds. we does not know the science of ballistics and he is only a mechanic whorepairs the arms. He has not examined the revolver in question. He admits that a double-action revolver requires more pressure on the trigger than single-actionone. While major Burrard in his book on Identification of Fires and Forensic Ballistics says thatthe normal trigger pull in double-action revolvers isabout 20 pounds, this witness reducesit to11 to14 pounds; while Major Brrard says in his book that in allcompetitions notest other than a dead weight is accepted, this witness doesnot agree with him. His opinion is based on the experiments performed 653 with spring balance. We would prefer to accept the opinion of Bhanagay to that of this witness. But, on thebasis of the opinion of Major Burrard, we shall assume for the purpose of this case that about 20 pounds of pressure would be required`to pull the trigger of the revolver Ex. B.
Before considering the injuries in detail, it may beconvenient to ascertain from the relevant text-books someof theindications that will be found in the case of injuries caused by shooting.
The followingpassagefrom authoritative text books may be consulted:
Snyder’s Homicide Investigation, P. 117:
“Beyond the distance of about 18 inches or 24 at the most evidence of smudging and tattooing are seldom present.” Merkeley on Investigation of Death, P. 82:
“At a distance of approximately over 18″ the powder grains are no longer carried forward and therefore the only effect produced on the skin surface is that of the bullet.” Legal MedicinePathology and Toxicologyby Gonzales, 2nd Fdn., 1956:
“The powder grains may travel 18 to 24 inches ormore dependingon thelengthof barrel, calibre and typeof weapon and the type of ammunition.” Smith and Glaister, 1939 Edn., P. 17:
“In general with all types of smokeless powder some traces of blackening are to be been butit isnot always possibleto recognize unburntgrains of powder evenat ranges of one and a half feet.” Glaister in his book on Medical Jurisprudence and Toxicology, 1957 Edn.J makes a statement that at 8 range of about 12 inches and over as a rule there will not be marks of carbonaceous tattooing or 654 powder marks. But thesame author in an earlier book from which we have already quoted puts it at 18 inches. In the book “Recent Advancesin Forensic Medicine” 2nd Edn., p. 11, it is stated:
“At range beyond 2 to 3 feet little or no trace of the powder can be observed.” Dr. Taylor’s book, Vol. 1, 11th edn., p. 373, contains the following statement:
“In revolver and automatic pistol wounds nothing but the grace ring is likely to be found beyond about two feet.” Bhanagay, P.W.4, saysthat charringaround the wound could occur with the weapon of the type Ex.B within about 2 to 3 inches from the muzzle of the weapon, and the blackening round about the wound could be caused from such a weapon up to about 6 to 8 inches from the muzzle. Dr. Jhala, P.W. 18, ways that carbonaceous tattooing would not appear if the body was beyond 18 inches from the mouth of the muzzle.
Dr. Baliga, D.W. 2, accepts the correctness of thestatement formed inGlaister’s book, namely, when the rangereaches about6 inches there is usually an absence of burning although there will probably be some evidence of bruising and ofpowder mark, at a range of about 12 inches and over the skin around the wound does not as a rule show evidence of powder marks.” In the cross- examinations witness says that he does not see any conflict in the authorities cited, and tries to reconcile the various authorities by stating that all theauthorities show that there would not be powder marks beyond the range of 12 to 18 inches.
He alsoways that in the matter oftattooing, there is no differencebetween thatcausedby smokeless powder used in the cartridgein question, and black powder used in other bullets, though in the case of the former there maybe greater difficulty to find 655 out whether tho marksare present are not in a, wound.
Having regard tothe aforesaidimpressive array of authorities on Medical Jurisprudence, we hold, agreeingwith Dr. Jhala, that carbonaceous tattooing wouldnot befound beyond range of 18 inches from the mouth of the muzzle of the weapon.
We alsohold that charring around the wound would occur when it is caused by a revolerlike Ex.
within about 2 or 3 inches from the muzzle of the revolver.
The presence andnatureof the abrasion collar around the injury indicates the direction and also the velocityof thebullet. Abrasion collar is formed by the gyration of the bullet caused by the riflingof the barrel. If a bullet hits the body perpendicularly, the wound would be circular and the abrasion collar would be all around. But if the hit is not perpendicular, the abrasion collarwill not be around the entire wound(See theevidence of Dr. Jhala and Dr.
Baliga).
As regardsthe injuries found onthe dead body, two doctors were examined, Dr. Jhala, P. W.
18, onthe side of the prosecution, and Dr.
Baliga, D. W. 2, on the side of the defence. Dr.
Jhala is the Polio Surgeon, Bombay, for the last three years. Prior to that he was a Police Surgeon in Ahmedabad for six years. Ee is M.R. C.P.
(Edin.), D.T. M. and H. (Lond.). He conducted the postmortem on the dead body of Ahuja and examined both external and internal injuries on the body.
He is therefore, competent to speak with authority on thewounds found on the dead-body not only by his qualifications andexperience but alsoby reason of having performed the autopsy on the dead-body. Dr.Baliga is an F. R. C. S. (England) and has been practising as a medical surgeon since 1933. His qualifications and antecedents show that he is not onlyon experience surgeon but abo has been taking 656 interest in extra-surgical activities, social, political and educational. He says that he has studiedmedical literatureregarding bullet injuries and that he is familiar with medico-legal aspect of wound including bullet wounds. He was a Causality J. Medical officer in theK. E.M.
Hospital in 1928. Thehad seen bullet injuries both asCausality Medical officer and later on as a surgeon. In the cross-examination he says:
“I have never fired a revolver, nor any other fire-arm. I have not given evidence in a single case ofbullet injuries priorto this occasion though I have treated and I am familiar with bullet injuries. The last that I gave evidence in Medico-legal case ina murder case was in 1949 or 1950or there about. Prior tothat Imust have given evidence in a medical-legal casein about 1939. I cannot off hand tell how many cases of bulletinjuries I have treated till now, must havebeen over a dozen. Ihave not treated any bullet injuries case for the last 7 or 8 years. It was over 8 or 9 years ago that I have treated bullet injuries on the chest andthe head. Outof allthese12 bullet injuries cases which I have treated up to now there might be 4or 5 which were bullet injuries on the head. Out of these 4 or 5 cases probably there were three cases in which there were injuriesboth on the chest as well as on the head……. I must have performed about half a dozen postmortems in all my career.” He further says that he was consulted about a week before he gave evidence by Mr. Khandalawala and Mr. Rajani Patel on behalf of the accused and was shown the post-mortem report of the injuries; that he didnot have before him either the bullets or the skull; that he gave his opinion in about 20 minutes on the basis of the post-mortem 657 report of the injuriesthat the said injuries could have been causedin n struggle between the accused and the deceased. This witness has come to the Court to support his opinion based on scanty material. We are not required in this caseto decideupon the cooperativequalificationor merits of these two doctors of their relative competency as surgeons, but we must have that so far asthe wounds on the legal-body of the deceased are concerned, Dr. Jhala, who has made the post-mortem examination,is ina better position to help us to ascertain whether shooting was byaccident, or by intention than Dr. Baliga, who gave his opinion on the basis ofthe post- mortem report.
Now we shall take injury No.1. This injury is a punctured one of dimensions1/4″ x 1/4″ chest cavity deep just below and inside the inner end of the right collar bonewith an abrasion collar on the right side of tho wound. The internal examination showed that the bullet, after causing the punctured wound inthe chest just below the inner end of the right collarbone, struck the sternumand after strikingit, it slightly deflected init course andcame behind the shoulder bone.In thecourse of its journey the bulletenteredthe chest, impactedthe soft tissues of the lung tho aorta and tho left lung, and ultimatelydamagedthe left lung and got lodged behind the seapula. Dr. Jhala describes the wound as ellipsoid and oblique and says that the abrasion collaris missing on the left side. On tho injury there isneither charring nor carbonaceous tattooing. The prosecution version is that this wound wascaused by intentional shooting, whilethe defence suggestion is that it was caused when accused and deceased were struggling forthe possession of the revolver.Dr.
Jhala, after describing injury No. 1, says that it could not has been received by the victim during a struggle in which both the victim and the assailant wereus eachothor’s grip.Ho gives reasons 658 for his opinion, namely, as there wasno carbonaceous tattooing on the injury, it must have been fcaused by the revolver being fired from a distance ra of over 18 inches from the tip of the mouth of themuzzle. We have earlier noticed that, on the basis of the authoritative text- books and the evidence, there would notbe carbonaceous tattooing if the target was beyond 18 inchesfrom the mouth of the muzzle. Itis suggested to him in the cross examination that the absence of tattooing may be due to the fact that the bullet might have first hit the fingers of the left palm causing all or any of injuries Nos. 2, 4 and 5, presumably whenthe deceased placed his left palm against theline of the bullet causing carbonaceous tattooingon thesaid fingers and thereafter hitting the chest.Dr. Jhala does not admit the possibility of the suggestion. He rules out this possibility because if the bullet first had animpacton the fingers, itwould get deflected, loseits directionand would notbe able tocause later injury No. 1 with abrasion collar. He further explains that an impact with a solid substancelike bones of fingerswill make the bullet lose itsgyratory movement and thereafter it could not cause any abrasion collar to thewound. He adds, “assuming that the bullet first hit and caused the injury to the web between the little finger and the ring finger, and further assuming that it had not lost its gyrating action, it would not have caused the injury No. 1, i e, on the chest which is accompanied by internal damage and the depth to which it had gone.” Now let us see what Dr. Baliga, D. W.. 2 says about injury No. 1. The opinion expressed by Dr.
Jhala is put to this witness, namely, that injury No. 1 on the chest could not have been caused during the course of a struggle when the victim and theassailant werein each other’s grip, and this witness does not agree with that opinion. He further ways that it is possible that even 659 if the bullet first caused injury in the web, that is injury No. 2, and thereafter caused injury No.
1 in the chest, there would be an abrasion collar such asseen in injury No. 1. Excepting this of this suggestion possibility, hehas not controverted the reasons givenby Dr.Jhala why inch an abrasion collar could not be caused if the bullet had hitthe finger before hitting the chest.We will presently show in considering injuries Nos. 2, 4 and 5 that the said injuries were due to the hit by one bullet. If that be so, a bullet, which had caused the said three injuries and then took a turn throughthe little and the ring finger, could nothave retainedsufficient velocity to cause theabrasion collar in the chest. Nor has Dr. Baliga controverted the reasons given by Dr Jhala that even if after causing the injury in the web the bulletcould cause injury No. ],it could not have caused the internal damage discovered in the post-mortem examination.
We haveno hesitation,therefore, toaccept the well reasoned view ofDr. Jhala in preference to the possibilityenvisaged by Dr. Baliga and hold that injury No. 1 could not have been caused when the accused and the deceased were in close trip, but only by a shot fired from a distance beyond 18 inches from the mouth of the muzzle.
The thirdinjury is a laceratedellipsoid wound oblique in the left parietal region with dimensions andskulldeep. Dr. Jhala in his evidence says that the skull had a gutter fracture of theouter table and a fracture ofthe inner tableand the brain showed subarachnoid haemorrhage over the left parieto-oocipital region accompanying the fracture of the vault of the skull. The injury waseffect ed in a”glancing way”, that is, at a tangent, and the injury went upward and to the front. He is of the opinion that the said injury to the head must have been caused by firing of a bullet from a 660 distance of over 18 inches from the mouth of the muzzle and must have been caused with the back of the head of the victim towards the assailant. When it wassuggested to him that the said wound could have been caused bya ricocheted bullet,he answered that though aricocheted bullet coming from the same line of direction could have caused the said injury, it could not havecaused the intracranial haemorrhage and also could not have cause the fracture oftho inner table of the skull. He is definite that injury No. 3 could not have been inflicted from “front to back” as the slope of the gutter fracture was from the back to the front in the direction of the “grazing” of the bullet. He gives a further reasons on that as a rule the fracture wound be broader in the skull where the bullet has the first impact and narrower where it emerges out, whishes the casein respect of injury No 3. He also relies upon the depth of the fracture it the two points and its slope to indicate the direction in which the bullet grazed.
He further says that it is common knowledge that the fracture of both the tables accompaniedby haemorrhage inthe skull requires great force and a ricocheted bullet cannot cause such an injury.
He opinion that, though aricocheted bullet emanating froma powerful fire-arm from a close range can cause injury to a heavybone,it cannot be caused by revolver of the type Ex. B.
Another suggestionmade to him is that the bullet might have hit the glass pane of the window in thebathroom first andthen ricocheting causing the injury onthe head. Dr. Jhala in his evidence says that ifthe bullet had hit glass pane ,first ,it wouldhave caused ahole and fallen on theother side ofthe window, for ricocheting isnot possible in the case ofa bullet directlyhitting the glass. But on the other hand, if the bullet first hit a hard substances and then the glass pane, it would act like a pebble and crack the glass and would 661 not go to the other side. In the present case, the bullet must have hit the skull first and then the glass pane after having lost its velocity, and fallen down like a pebble inside thebath-room itself. If, as the defence suggests,the bullet had directly hit the glass pane, it would have passed through it to the other side, in which case four bulletsmust have been firedfrom the revolver Ex. B, which is nobody’s case.
The evidence, of Dr. Jhala is corroborated by the evidence of the ballistics expertBhanagay, P.W. 4,when he says that if a bullet hits a hard substance and gets flattened and damaged like the bullets Exs. F-2 and F-2a, itmay not enter the body and that even if it enters thebody, the penetration will be shallow and the injury caused thereby will be much less ascompared to the injury caused by a direct hit of the bullet. Dr.
Baliga, on the other hand, says that injury No. 3 could be caused both ways, that is, from “front backward” as well as from “back forward”. He also contradicts Dr.Jhala and says “back that in the type ofthe gutter fracture caused in the present case the wound is likely to be narrower at the entry than at the exit. He furthersays that assuming that the gutter fracture wound was caused by a ricocheted bulletand assuming further that there was enough force leftafter rebound,a ricocheted bullet could causea fracture of even the inner table and give riseto intra-cranial haemorrhage. Heasserts that a bullet that can cause agutter fracture of the outertableis capable of fracturing the inner tablealso.In short,he contradicts everystatement of Dr.
Jhala; to quote his own words, “I donot agree that injury No. 3, i.e., thegutterfracture, cannot be inflicted from front to back for the reason that the slopeof the gutter fracture was behind forwarddirection of the grazing of the bullet; I also do not agree with the proposition that if it would have been from the front then the slope of the gutter wound would have been from the front backward;
662 I havenot heard of such a rule and that at the near end of the impact of a bullet the gutter fracture is deeper than where it flies off; I do not agree that the depth of the fracture at two points is more important factor in arriving at the conclusion of the point of impact of the bullet.” He alsocontradicts the opinion of Dr. Jhala that injury No. 3 could not be caused in a struggle between the victim andthe assailant. Dr. Baliga has been cross- examined at great length. It is elicited from him thathe isnot aballistics expert and that his experience in the matter of direction of bullet injuries is comparatively less than his experience inother fields. His opinion that the gutter fracture injury could be and was more likely to be caused from an injury glancing front backwardsis based upon a comparison of the photograph of the skull shown to himwith the figure 15 in the book “Recent Advances in Forensic Medicine ” by Smith and Glaister, p. 21. The said figure is marked as Ex. Z in the case. The witness says that the figure shows that the narrower part of the gutter is on the rear and the wider part is in front. In the cross-examination he further says that the widest part of the gutter in figure Ex. Z is neither at the front and nor at the rear end, but therear end is pointed and tailed. It is put to this witness that figure Ex. Z does not support his evidence and that he deliberately refused to see at it correctly, but he denies it. The learned Judgesof the High Court,after seeing the photograph Ex.Z with a magnifying glass, expressed the view that what Dr. Baliga called the pointed and tailed part of the gutter was a crack in theskull and not a part of the gutter. This observation hasnot been shown to us to be wrong.
When asked on what scientific principle he would support his opinion, Dr. Baliga could not give any such principle,but only said that it was likely- he putsemphasis on the word”likely”-that the striking end was likely to be 663 narrower and little broader at the far end.He agrees that when a conical bullet hits a hard bone it means that the hard bone is protruding in the path of the projectile and also agrees that after the initial impact thebullet adjustsitself in the newdirection of flight and that the damage caused at the initial point of the impact would be more than at any subsequent point. Having agreed so far, he would not agreeon the admitted hypothesis thatat theinitial point of contract the wound should be wider than at the exit. But he admits that he has no authority to support his submission. Finally, he admits that generally the breadth and the depth of thegutter wound would indicate the extensive natureof thedamage. On this aspect of the case, therefore, the witness has broken down and his assertion is not based on any principle or on sufficient data.
The next statement he makes is that he does not agree that the fracture of the inner table shows that the initial impact was from behind; but he admits that the fracture of the inner table is exactly below the backside of the gutter, though he adds that there is a more extensive crack in front of the anterior end of the gutter. He admits that in the case of a gutter on the skull the bone material whichdissociates from the rest of the skull is carried in the direction in which the bullet flies but saysthat hewas not furnished with any information in that regard when he gave his opinion.
Coming to the question of the ricocheting, he says that aricocheting bullet can produce depressed fracture of the skull. Butwhen asked whether in his experience he has come across any bullet hittinga hard objectlike awall and rebounding andcausing a fracture of a hard bone or whether he has any text-book to support his statement, hesays that hecannotquote any instance nor 664 an authority. But he says that it is so mentioned in several books. Then hegives curious definitions ofthe expressions”likely to cause death”, “necessarily fatal ” etc. He would go to the extent of saying that inthe case of injury No. 3,the chance of recoveryis upto 80 per cent.; but finally hemodifies that statement by sayingthat he made the statement on the assumption that the haemorrhagein the subarachnoid region is localised, but if the haemorrhage isextensive his answer does not hold good. Though he asserts that at a range of about 12 inches the wound does notshow as a rule evidence of powder mark, he admits that he has no practical experience that beyond a distance of 12 inches no powder mark can be discovered as a rule.
Though text-books and authorities are cited to the contrary, he still sticks tohis opinion; but finally he admits thathe isnot aballistics expert and has no experience in that line. When he is asked if after injury No. 3, the victim could have continued the struggle, he says that he could have, though he adds that itwas unlikely after the victim had received both injuries Nos. 1 and
3. He admits that the said injury can be caused both ways, that is, by a bullet hitting either on the front of the head or at the back of the head.
But hisreasons for saying that the bullet might have hit the victim on the front of the head are neither supported by principle nor by the nature of thegutter wound found inthe skull. Ex.Z relied upon by him does notsupporthim. His theory of a ricocheted bullet hitting the skull is highly imaginary and cannot be sustained on the material available to us: firstly, there isno mark found in the bath-room wall or elsewhere indicating that the bullet struck a hard substance before ricocheting andhitting the skull, and secondly, it does notappear to be likely that such aricocheted bullet ejected from Ex. B could have caused such an extensive injury to the head of the deceased as found in this case.
665 Mr. Pathak finally argues that the bullet Ex.
F-2a has a “process”,i.e., aprojection which exactly fits in the denture found in the skull and, therefore,the projection couldhave been caused only by the bullet coming into contact with some hard substance before it hit the head of the deceased. Thissuggestion wasnot made to any of the experts.It isnot possible for usto speculate as to the manner in whichthe said projection was caused.
We, therefore, accept, the evidence of the ballistics expert, P. W. 4, and that of Dr. Jhala, P. W. 18, in preference to that of Dr. Baliga.
Now coming to injuries Nos 2, 4 and 5, injury No. 4 is found on the first joint of the crease of the index finger on the back side of the left palm and injury No. 5 at the joint level of the left middle finger dorsal aspect, and injury No. 2 is a punctured wound in the web between the ring finger and the little finger ofthe left hand communicating with a punctured wound on the palmer aspect of the left knukle level between the left little and the ring finger. Dr. Jhala says that all thesaid injuries are on the back of the left palm and all have corbonaceous tattooing and that the injuries should have been caused when his left hand was between 6 and 18 inches from the muzzle of therevolver. He further says that all the three injuriescould have been caused by one bullet, for, as the postmortem discloses, the three injuriesare in a straightline and therefore it can clearly be inferredthat they were caused by one bullet which passed through the wound on the palmar aspect. His theory is that one bullet, after causing injuries Nos. 4 and 5 passed between the little and ring finger and caused the punctured wound on thepalmar aspect of the left hand. He is also definitely of the view that these wounds could not have been received by the victim during a struggle in which both of them were in each other’s grip. It 666 is not disputed that injury No. 1 and injury No. 3 should have been caused by different bullets. If injuries Nos. 2, 4 and 5 were caused by different bullets, thereshould have been morethan three bullets fired, which is not the case of either the prosecution orthe defence. In the circumstances, the said wounds must have been caused only by one bullet, and there is noting improbable in a bullet touching three fingers on the back of the palm and taking a turn and passing through the web between the little and ring finger. Dr. Baliga contradicts Dr. Jhala even in regard to these wounds. He says that these injuries,alongwith the others, indicate the probability of a struggle between the victim and the assailant over the weapon; but he does not give any reasons forhis opinion.He assertsthatone single bullet cannot cause injuries Nos. 2, 4 and 5 on the left hand fingers, as it is a circuitous course for a bullet to take and itcannot do so without meetingwith some severe resistance. He suggests that a bullet which had grazed and caused injuries Nos. 4 and 5 could then have inflicted injury No. 3 without causing carbonaceous tattooing on the head injury. We have already pointedout that thehead injury was caused from the back, and we do not see any scope for onebullet hitting the fingers and thereafter causing the head injury. If the twotheories, namely, that either injury No. 1 or injury No. 3 could have been causedby thesame bullets that might have caused injury No. 2 and injuries Nos. 4 and 5 were tobe rejected, for the aforesaid reasons, Dr. Baliga’s view that injuries Nos. 2,4 and 5 must have been caused by different bullets should also be rejected, for to accept it,we would require more than three bulletsemanating from the revolver, whereas it is the common case that more than three bullets were not fired from the revolver. That apart in the cross-examination this witness accepts 667 that the injury on the first phalangeal joint of the index finger and the injury in the knuckle of the middle finger andthe injury in the web between the little andthe ring finger, but not taking into account the injury on the palmar aspect would be in a straightline. The witness admits that there can be a deflection even against a soft tissue, but adds that the soft tissue being not ofmuchthickness between thesaid two fingers, the amount ofdeflection is negligible.
But heconcludes by saying that he is not saying this as an expert in ballistics. If so, the bullet could have deflectedafter striking the web betweenthe little and thering finger. We, therefore, accept the evidenceof Dr. Jhala that one bullet must have caused these three injuries.
Strong reliance is placed upon the nature of injury No. 6 found on the back of the deceased viz, avertical abrasion in the right shoulder blade of dimensions 3″x1″ just outside the spine, and itis saidthat the injury musthave been causedwhen the accused pushed the deceased towards the door of the bath room. Nanavati in his evidence says that he”banged” him towards the door ofthe bath-room, and after some struggle he again pushed the deceased into the bath-room. It is suggested that when the accused “banged” the deceased towards the door of the bath-room or when he pushed himagain into the bath-room, this injury might have beencaused by his back having come into contact withthe frame of the door. It is suggested to Dr. Jhala that injury No. 6 could be caused by the man’s back brushing againsta hard substancelike the edge of the door, and he admits that it could be so. But the suggestion of the prosecutioncase is that the injury must have been caused when Ahuja fell down in the bath-room in front of the commode and,when falling, his back may have caught the edgeof the commode or the bath-tub or the edge of the door of the bath- room 668 which opens inside thebath-room to the left of the bath-tub. Shelat, J., says in his judgment:
“If the abrasion wascausedwhen the deceased was said to have been banged against the bath-room door or its frame, it would seem thatthe injury would be more likely to be caused,as thedeceased would be ina standing position, on the shoulder blade and not insidethe right shoulder. It is thus more probable that the injury was caused when the deceased’s back came into contact either with the edge of the door or the edge of the bathtub or the commode when he slumped.” It is not possible to say definitelyhow this injury was caused, butit could have been caused when the deceased fell down in the bath-room.
The injuries found on the dead-body of Ahuja are certainlyconsistent with the accused intentionally shooting him after entering the bed- room ofthe deceased;but injuries Nos. 1 and 3 are wholly inconsistent with the accused accidentally shooting him in the course of their struggle for the revolver.
From the consideration of the entire evidence the following facts emerge: The deceased seduced the wife of the accused. She had confessed to him of herillicit intimacy with the deceased. It was naturalthat the accused was enraged at the conduct of the deceased and had,therefore, sufficient motive to do away with the deceased. He deliberately secured the revolver on a false pretext from the ship, drove to the flat of Ahuja, entered his bed-room unceremoniously with a loaded revolver in hand andin about a few seconds thereafter came out with the revolver in his hand.
The deceased was found dead in his bath-room with bullet injurieson hisbody. It is not disputed that the bullets thatcaused injuriesto Ahuja emanated from the revolver that was in the hand of the accused. After the shooting, till his 669 trial in the SessionsCourt,he didnot tell anybody that he shot the deceased byaccident.
Indeed, he confessed his guilt to the Chowkidar Puransingh andpractically admitted the sameto his colleagueSamuel.His description of the struggle in the bath-room is highly artificial and is devoid ofall necessaryparticulars. The injuries foundon thebody ofthe deceased are consistent withthe intentional shooting and the main injuriesare wholly inconsistent with accidental shooting when the victim and the assailant werein close grips. The other circumstances brought out in the evidence also establish that there could not have been any fight or struggle between the accused and the deceased.
We, therefore, unhesitatingly hold. agreeing with the High Court, that the prosecution has provedbeyondany reasonable doubtthat the accused has intentionally shotthe deceased and killed him.
In this view it is not necessary to consider the question whether the accused haddischarged the burden laid on him under s. 80 of the Indian Penal Code, especially aslearned counsel appearing for the accused here and in the High Court did not rely upon the defence based upon that section.
That apart, we agree with the High Court that, on the evidenceadduced in this case,no reasonable bodyof persons could have come to the conclusion which the jury reached inthis case.
For that reason also the verdict ofthe jury cannot stand.
Even so, it is contended by Mr. Pathak that the accused shot the deceased while deprived of the power of self-control bysuddenand grave provocation and, therefore, the offence would fall under Exception1 to s. 300 of the Indian Penal Code. The said Exception reads:
“Culpable homicide is not murder if the offender, whilst deprived of the power of 670 self-control by grave and sudden provocation, causes thedeath of the person who gave the provocation or causes the death of any other person by mistake or accident”.
Homicide is the killing of a humanbeingby another. Underthis exception,culpable homicide is notmurder if thefollowing conditions are complied with : (1) The deceased must have given provocation tothe accused. (2) The provocation must be grave. (3) The provocation must be sudden.
(4) The offender, by reason ofthe said provocation, shall have been deprived of his power of self-control. (5) He should have killed the deceased during the continuance of the deprivation of thepower of self-control. (6) The offender must have caused the death of the person who gave the provocationor that of any other personby mistake or accident.
The firstquestion raisedis whether Ahuja gave provocation to Nanawati within the meaning of the exception and whether the provocation,if given by him, was grave and sudden.
Learned Attorney-General argues, that though a confession of adultery by a wife may in certain circumstances be provocation by the paramour himself, underdifferent circumstancesit has to be considered from thestandpoint ofthe person who conveys it rather than from the standpoint of the person who gives it. He further contends that even ifthe provocation was deemed to have been given by Ahuja, and though the said provocation might have been grave, it could not be sudden, for the provocationgiven by Ahuja was only in the past.
On the other hand, Mr. Pathak contends that the act of Ahuja, namely, the seduction of Sylvia, gave provocation though the fact of seduction was communicated to the accused by Sylvia and that for the ascertainment of the suddenness 671 of theprovocation itis notthe mind of the person who provokes that matters but that of the personprovoked thatis decisive. It is not necessary to express our opinion on the said question, for we are satisfied that,for other reasons, the case is not covered by Exception 1 to s. 300 of the Indian Penal Code.
The question that the Court has to consider is whether a reasonable person placed in the same position as the accused was, would have reacted to the confessionof adultery by his wife in the manner in which the accused did. In Manciniv.
Director of Public Prosecutions (1), Viscount Simon, L. C., states the scope of the doctrine of provocation thus:
“It is not all provocationthat will reduce thecrime of murder to manslaughter.
Provocation, to have thatresult, mustbe such astemporarily deprives the person provoked of the power of self-control as the result ofwhich he commits the unlawful act which causes death……… The test tobe applied is thatof the effect of the provocation on a reasonable man, as was laid down by the Courtof Criminal Appeal in Rex v. Lesbini, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the text,it is of particular importance to (a) consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is avery different thing from making useof a deadly instrument likea concealed dagger. In short, 672 the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.” Viscount Simonagain in Holmes v. Directorof Public Prosecutions elaboratesfurther on this theme. There, the appellant had entertained some suspicions of his wife’s conduct withregard to other men in the village. Ona Saturday night there was a quarrel between them when she said, “Well, if it will ease your mind, Ihave been untrue to you”, and she wenton, “I know I have done wrong, but I have no proof that you haven’t- at Mrs. X.’s”. With this appellant lost his temper and picked up the hammerhead and struck her with the same on the side of the head. As he did not like tosee her lie there and suffer, he just put both hands round herneck until she stopped breathing. The question arose in that case whether there was such provocation as to reduce the offence of murder to manslaughter. Viscount Simon, after referring to Mancini’s case(2), proceeded to state thus :
“Thewholedoctrine relatingto provocation depends on the fact thatit causes, ormay cause, a sudden and temporary loss of self-control, whereby malice, which is the formation of an intention to kill or toinflict grievous bodilyharm,is negatived.Consequently, where the provocation inspires an actual intention to kill (suchas Holmes admitted in the present case), orto inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies.” Goddard, C. J., Duffy’s case defines provocation thus “Provocation is some act, or series of acts, done by the dead man to the accused 673 which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind………… What matters is whether this girl (theaccused) had the timeto say:
`Whatever I have suffered, whatever I have endured, Iknow that Thou shallnot kill.’ Thatiswhatmatters.
Similarly,………….circumstances which induce a desire for revenge, ora sudden passion ofanger, are not enough. Indeed, circumstances which induce a desire for revenge are inconsistentwith provocation, since theconscious formulation of a desire for revenge means that the person has had time to think, toreflect, and that would negative asudden temporary lossof self- control which is ofthe essenceof provocation. Provocation being,,………….as Ihave defined it, there aretwo things, in considering it, to which thelaw attaches great importance. The first of them is,whether there was what is sometimes called time forcooling, that is, for passion to cool and for reason to regain dominionoverthe mind…………….Secondly in considering whether provocation has or has not been made out, you must consider the retaliationin provocation-that is to say, whether the mode ofresentment bears some proper and reasonablerelationshipto thesortof provocation that has been given.” A passage from the address of Baron Parke to the jury inR. v.Thomas (1) extracted in Russell on Crime, 11th ed., Vol. I at p. 593, may usefully be quoted :
674 “But the law requires two things : first that thereshould be that provocation; and secondly,that the fatal blowshouldbe clearly traced to the influence of passion arising from that provocation.” The passages extracted above laydown the following principles: (1) Except in circumstances of mostextreme and exceptional character, a mere confession of adultery is not enough to reduce the offence of murder to manslaughter. (2) The act of provocation which reduced the offence of murder to manslaughter must be such as to cause a sudden and temporary lossof self-control; and it mustbe distinguished from a provocation which inspires an actual intention to kill. (3) The act should have been done during the continuance of that state of mind, that is, beforethere was time for passion to cool and for reason to regain dominion over the mind. (4) The fatal blow should be clearly traced to theinfluence of passionarisingfrom the provocation.
Onthe other hand, inIndia,the first principle has never been followed. That principle has hadits origin in the English doctrine that mere words and gestures would not be in point of law sufficientto reduce murder to manslaughter.
But theauthors of the Indian Penal Code did not accept the distinction. They observed :
“It is an indisputable fact, that gross insults byword or gesture haveas great tendency to movemany persons to violent passion asdangerous or painfulbodilyin juries ; nor does it appear to us that passion excited by insult is entitled to less indulgence than passion excited by pain. On the contrary, the circumstance that a man resents an insult morethan awoundis anything but 675 a proof that he is a man of peculiarly bad heart.” Indian courts have not maintained the distinction between words and actsin the application of the doctrine of provocation in agivencase. The Indian law on the subject may be considered from two aspects, namely, (1) whether words or gestures unaccompanied by acts can amount to provocation and (2) what is the effect of the time lag between the actof provocationand the commission of the offence. In Empress v.Khogayi, a division bench of theMadras HighCourtheld,in the circumstances of that case, that abusive language used would be a provocation sufficient to deprive the accused of self-control. The learned Judges observed :
“What is required isthat it should be of a character to deprive the offender of his self-control. In determining whether it was so, it is admissible to take into account the condition of mind in which the offender was atthe time ofthe provocation. In the present case the abusive language used was of the foulest kind and was addressed to man already enraged by the conduct of deceased’s son.” It will be seen in this case that abusive language of the foulest kind was held to be sufficient in the case of man who was already enraged by the conduct of deceased’s son. The same learned Judge in a later decision in Boya Munigadu v. The Queen upheld plea of grave and sudden provocation in the following circumstances: Theaccused saw the deceased when she had cohabitation with his bitter enemy; that night he had no meals; next morning he went tothe ryots to get his wages from them, and at thattime he saw his wife eatingfood along with her paramour; hekilled the paramour with a bill-hook. The learned 676 Judgesheld that the accused hadsufficient provocation tobring the case within the first exception to s. 300 of the Indian Penal Code. The learned Judges observed :
“…………If having witnessed the act of adultery, he connected thissubsequent conduct ashe could not fail to connect it, with thatact, itwouldbe conduct ofa characterhighlyexasperatingto him, implying as it must, that all concealment of their criminal relations and all regard for his feelings were abandoned andthat they purposedcontinuing their courseof misconduct in hishouse.This,we think, amounted to provocation, grave enough and sudden enough to deprivehim ofhis self- control, and reduced the offence from murder toculpable homicide not amountingto murder.” The case illustrates that the state of mind of the accused, havingregard to the earlier conduct of the deceased, may be taken into consideration in considering whether the subsequent act would be a sufficient provocation to bring the case within the exception.Another division bench of the Madras High Court in In re Murugian held that, where the deceased not only committed adultery but later on swore openlyin the face of the husband that she would persistin such adultery and also abused the husband for remonstrating against such conduct, thecase was covered bythe first exception to s. 300 of the Indian Penal Code. The judgement of the Andhra Pradesh High Court in In re C. Narayan adopted the same reasoning in a case where the accused, a young man, who had a lurking suspicion of the conduct of his wife, who newly joined him, was confronted with the confession of illicit intimacy with, and consequent pregnancy by another, strangled his wife to death, and 677 held that the case was covered by Exception 1 to s. 300of the Indian PenalCode.These two decisions indicate that the mental state created by an earlier act may be taken into consideration in ascertaining whether a subsequent act was sufficient to make the assailant to lose his self- control.
Where thedeceased led an immoral life and her husband, the accused, upbraided her and the deceased instead of being repentant said that she would again do such acts, and the accused, being enraged struckher and, when she struggled and beat him, killed her, the Court held the immediate provocation coming on top of all that had gone before was sufficient to bring the case within the first exceptionto s. 300 ofthe Indian Penal Code. So too, wherea woman wasleadinga notoriously immoral life, andon the previous night mysteriously disappeared from the bedside of her husband and the husband protested against her conduct, she vulgarly abused him, whereupon the husband lost his self-control,picked up a rough stick, which happened to be close by and struck her resulting in her death, the Lahore High Court, in Jan Muhammad v. Emperor, held that the case was governed by the saidexception. Thefollowing observations ofthe court were relied upon in the present case :
“In the present case my view is that, in judging the conduct of the accused, one must not confine himself to the actual moment when the blow, which ultimately proved to be fatal was struck, that is to say, one must not take into consideration only the event which took place immediatelybefore the fatal blow was struck. Wemust take into consideration the previousconductofthe woman………………….
………………………………………
…… As stated above, the whole unfortunate affair 678 should be looked at as one prolonged agony on the part of the husband which must have been preying upon his mind and led to the assault upon the woman, resulting in her death.” A division bench of the Allahabad High Court in Emperor v. Balku invoked the exception in a case where the accused andthe deceased, who was his wife’s sister’s husband, were sleeping on the same cot, and in the night the accused saw the deceased getting up from the cot, and going to another room and having sexual intercourse with his (accused’s) wife, and the accused allowed the deceasedto return to the cot, but afterthe deceased fell asleep, he stabbed him to death. The learned Judges held :
“When Budhu (the deceased)came into intimate contact with theaccused by lying beside himon thecharpai this must have worked further on the mind of the accused and he must have reflected that `this man now lying beside me had been dishonouring me a few minutes ago’. Under these circumstances we think that theprovocation would be both grave and sudden.” The Allahabad High Court in arecentdecision, viz., Babu Lal v. State applied the exception to a case where the husbandwho saw his wife ina compromising position with the deceased killed the latter subsequently when the deceased came, in his absence, to his house in another village to which he had moved. The learned Judges observed :
“The appellant when he came to reside in the Government House Orchard felt that he had removed his wife from the influence of the deceased and there was no more any contact between them. He had lulled himself into a false security. This belief was shattered 679 when he found the deceased at his hut when he was absent. This could certainly give him a mental jolt and as this knowledge will come all of a sudden it should be deemed to have given him a grave and sudden provocation. The fact thathe had suspected this illicit intimacy on an earlier occasion also will not alter thenature of the provocation and make it any the less sudden.” All the said four decisions dealt with a case of a husband killinghis wife when his peace of mind had already been disturbed by an earlier discovery of the wife’s infidelity and the subsequent act of her operated as a grave and sudden provocation on his disturbed mind.
Is there any standard of a reasonable man for the applicationof thedoctrine of “grave and sudden” provocation ?No abstract standardof reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way oflife, traditional values etc.; in short,the cultural,social and emotional background of the society to which an accused belongs. In our vast countrythere are social groups rangingfrom the lowest to the higheststateof civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to therelevant circumstances. It is not necessary in this case to ascertain whether a reasonableman placed in the position of the accused would have lost his self- control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.
The Indian law,relevant to the present enquiry, may be statedthus :(1) The testof “grave 680 and sudden” provocation is whether areasonable man, belonging to the same class of society as the accused, placedin thesituation inwhich the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accusedso asto bring his act within the first Exception to s. 300 of theIndian PenalCode.(3) The mental background created by the previous act of the victimmay be takenintoconsideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.
Bearing these principles in mind, let us look at thefacts of this case. When Sylvia confessed to herhusband that she had illicit intimacy with Ahuja, the latter was not present. We will assume that he had momentarily lost his self-control. But if his version is true-for the purpose of this argument we shall accept that what he has said is true-it shows that hewas only thinking of the future of his wife and children and also of asking for anexplanation from Ahuja for his conduct.
This attitude of the accusedclearlyindicates that hehad not only regainedhis self-control, but onthe other hand, was planning for the future. Then he drovehis wife and children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there, and drove his car to the office of Ahuja and then to his flat, went straight to the bed-room of Ahuja and shot him dead. Between 1-30 P.M., when he left his house, and 4-20 P.M., when the murder took place, three hours had elapsed, andtherefore there was sufficient time for him to 681 regain his self-control, even if he had not regained it earlier.On theotherhand, his conductclearly showsthat the murder wasa deliberate andcalculated one. Even if any conversation took place between the accused and the deceased in themannerdescribed by the accused-though we do not believe that-it does not affect the question, for the accused entered the bed-room of the deceased to shoot him. The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusivereplycouldnot conceivably bea provocation forthe murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception 1 to s. 300 of the Indian Penal Code.
In the result, conviction of the accused under s. 302 of the Indian Penal Code and sentence of imprisonment for life passed on him by the High Court are correct, andthere are absolutelyno groundsfor interference. The appeal stands dismissed.
Appeal dismissed.
