K. M. Nanavati Vs. State of
Maharashtra [1961] INSC 328 (24 November 1961)
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-Reference by
Judge, if and when competent-Plea of General Exception-Burden of
proof-"Grave an sudden provocation"-Test-Power of High Court in
reference-Code of Criminal Procedure(Act, 5 of 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.
HEADNOTE:
Appellant Nanavati, a Naval Officer, was put
up on trial under ss. 302 and 304 Part I of the Indian Penal Code for the
alleged murder of his wife's paramour. The prosecution case in substance was
that on the day of occurrence his wife Sylvia confessed to him of her illicit
intimacy with Ahuja and the accused went to his ship, took from its stores a
revolver and cartridges on a false pretext, loaded the same, went to Ahuja's
flat, entered his bed room and shot him dead. The defence, inter alia, was that
as his wife did not tell him if Ahuja would marry her and take charge of their
children, he decided to go and settle the matter with him. He drove his wife
and children to a cinema where he dropped them promising to pick them up when
the show ended at 6 p.m., drove to the ship and took the revolver and the
cartridges on a false pretext intending to shoot himself.
Then he drove 568 his car to Ahuja's office
and not finding him there, drove to his flat. After an altercation a struggle
ensued between the two and in course of that struggle two shots went off
accidentally and hit Ahuja. Evidence, oral and documentary, was adduced in the
case including three letters written by Sylvia to Ahuja. Evidence was also
given of an extra-judicial confession made by the accused to prosecution
witness 12 who deposed that the accused when leaving the place of occurrence
told him that he had a quarrel with Ahuja as the latter had 'connections' with
his wife and therefore he killed him. This witness also deposed that he told P.
W. 13, Duty Officer at the Police Station, what the accused had told him. This
statement was not recorded by P. W. 13 and was denied by him in his
cross-examination. In his statement to the investigation officer it was also
not recorded. The jury returned a verdict of 'not guilty' on both the charges
by a majority of 8: 1.
The Sessions Judge disagreed with that
verdict, as in his view, no reasonable body of men could bring that verdict on
the evidence and referred the matter to the High Court under s. 307 of the Code
of Criminal Procedure. The two Judges of the Division Bench who heard the
matter agreed in holding that the appellant was guilty under s. 302 of the
Indian Penal Code and sentenced him to undergo rigorous imprisonment for life.
One of them held that there were misdirection’s in the Sessions Judge's charge
to the jury and on a review of the evidence came to the conclusion that the
accused was guilty of murder and the verdict of the jury was perverse. The
other Judge based his conclusion on the ground that no reasonable body of persons
could come to the conclusion that jury had arrived at. On appeal to this Court
by special leave it was contended on behalf of the appellant that under s. 307
of the Code of Criminal Procedure it was incumbent on the High Court to decide
the competency of the reference on a perusal of the order of reference itself
since it had no jurisdiction to go into the evidence for that purpose, that the
High Court was not empowered by s. 307(3) of the Code to set aside the verdict
of the jury on the ground that there were mis-directions in the charge, that
there were no mis-directions in the charge nor was the verdict perverse and
that since there was grave and sudden provocation the offence committed if any,
was not murder but culpable homicide not amounting to murder.
^ Held, that the connections were without
substance and the appeal must fail.
Judged by its historical background and
properly construed, s. 307 of the Code of Criminal Procedure was meant to
confer wider powers of interference on the High Court than 569 in an appeal to
safeguard against an erroneous verdict of the jury. This special jurisdiction
conferred on the High Court by s. 307 of the Code is essentially different from
its appellate jurisdiction under ss. 410 and 417 of the code, s.
423(2) conferring no powers but only saving
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"
in s. 307(1) of the Code, which indicate that the Judge disagreeing with the
verdict, must be of the opinion that the verdict was one which no 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, the Judge disagreed with the
verdict and recorded the grounds of his opinion, the reference was competent,
irrespective of the question whether the Judge was right in so differing from
the jury or forming such an opinion as to the verdict. There is nothing in s.
307(1) of the Code that lends support to the contention that though the Judge
had complied with 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 opinions of the Sessions Judge and the jury,
virtually conferred the functions both of the jury and the Judge on it.
Where, therefore, mis-directions vitiated the
verdict of the jury, the High Court had as much the power to go into the entire
evidence in disregard of the verdict of the jury as it had when there were no mis-directions
and interfere with it if it was 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. State of Bombay, [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 his charge tells the jury and is wrong or in a wrong manner 570 tending to
mislead them. Even an omission to mention matters which are essential to the
prosecution or the defence case in order to help the jury to come to a correct
verdict may also in certain circumstances amount to a misdirection.
But in either 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 and Smt. Nagindra Bala Mitra v. Sunil Chandra Roy, [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 of
the General Exceptions mentioned in the Indian Penal Code. The presumption of
innocence in the favour of the accused continues all through and the burden
that lies on the prosecution to prove his guilt, except where the statute
provides otherwise, never shifts. Even if the accused fails to prove the
Exception the prosecution has to discharge its own burden and the evidence
adduced, although insufficient to establish the Exception, may be sufficient to
negative one or more of the ingredients of the offence.
Woolmington v. Director of Public Prosecutions,
L. R. (1935) A. C. 462, considered.
Attygalle v. Emperor, A. I. R. 1936 P. C. 169,
distinguished.
State of Madras v. A. Vaidyanatha Iyer,
[1958] S. C. R. 580 and C. S. D. Swamy v. State, [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 on the accused and explain the
implications of the terms 'lawful act', lawful manner', 'unlawful means' and
'with proper care and caution' occurring in that section and point out their
application to the facts of the case these were serious mis-directions that
vitiated the verdict of the jury.
Extra-judicial confession made by the accused
is a direct piece of evidence and the stringent rule of approach to
circumstantial evidence has no application to it. Since in the instant case,
the Sessions Judge in summarising the circumstances mixed up the confession
with the circumstances while directing the jury to apply the rule of
circumstantial evidence and 571 it might well be that the jury applied that
rule to it, his charge was vitiated by the grave misdirection that must effect
that correctness of the jury's verdict.
The question whether the omission to place
certain evidence before the jury amounts to a misdirection has to be decided on
the facts of each case. Under s. 297 of the Code of Criminal Procedure it is
the duty of the Sessions Judge after the evidence is closed and the counsel for
the accused and the prosecution have addressed the jury, to sum up the evidence
from the correct perspective. The omission of the Judge in instant case,
therefore, to place the contents of the letters written by the wife to her
paramour which in effect negatived the case made by the husband and the wife in
their deposition was a clear misdirection. Although the letters were read to
jury by the counsel for the parties, that did not absolve the judge from his
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 investigation under s. 156
(1) of the Code of Criminal Procedure in a particular case, which is a question
of fact, has to be decided on the facts of the case, irrespective of any
irregularity committed by the Police Officer in recording the first information
report under s. 154 of the Code.
Where investigation had in fact commenced, as
in the instant case, s. 162 of the Code was immediately attracted. But the
proviso to that section did not permit the eliciting from a prosecution witness
in course of his cross- examination of any statement that he might have made to
the investigation officer where such statement was not used to contradict his
evidence.
The proviso also had no application to-a oral
statement made during investigation and not reduced to writing.
In the instant case, therefore, there could
be no doubt that 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 himself in placing the said evidence before the jury.
Exception 1 to s. 300 of the Indian Penal
Code could have no application to the case. The test of "grave and
sudden" provocation under the Exception must be whether a reasonable
person belonging to the same class of society as the accused, placed in a
similar situation, would be so provoked as to lose his self control. In India,
unlike in England, words and gestures may, under certain circumstances cause
grave and sudden provocation so as to attract that Exception. The mental
background created by any previous act of the victim can 572 also be taken into
consideration in judging whether the subsequent act could cause grave and
sudden provocation, but the fatal blow should be clearly traced to the
influence of the 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.
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) 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 of a particular case committed the offence under grave and sudden
provocation is a question of fact for the jury to 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 appeal by special leave arises out of the
judgment of the 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 public mind by reason of the
publicity it received and the important constitutional point it had given rise
to at the time of its admission.
The appellant was charged under s. 302 as
well as under 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, bring in such a verdict. The learned Sessions
Judge submitted 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 was heard by a division
bench of the said High Court consisting of Shelat and Naik, JJ. The two learned
Judges gave separate judgments, but agreed in holding that the accused was
guilty of the offence of murder under s. 302 of the Indian Penal Code and
sentenced him to undergo rigorous imprisonment for life. Shelat, J., having
held that there were mis-directions to the jury, reviewed the entire evidence
and came to the conclusion that the accused was clearly guilty of the offence
of murder, alternatively, he expressed the view that the verdict of the jury
was perverse, unreasonable and, in any event, contrary to the weight of
evidence. Naik, J., preferred to base his conclusion on the alternative ground,
namely, that no reasonable body of persons could have come to the conclusion
arrived at by the jury. Both the learned Judges agreed that no case had been
made out to reduce the offence from murder to culpable 574 homicide not
amounting to murder. The present appeal has been preferred against the said
conviction and sentence.
The case of the prosecution may be stated
thus: This accused, at the time of the alleged murder, was second in command of
the Indian Naval Ship "Mysore". He married Sylvia in 1949 in the
registry office at Portsmouth, England. They have three children by the
marriage, 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 exigencies of service of Nanavati. Finally, they shifted
to Bombay. In the same city the deceased Ahuja was doing business in
automobiles and was residing, along with his sister, in a building called
"Shreyas" till 1957 and thereafter in another building called
"Jivan Jyot" in Setalvad Road. In the year 1956, Agniks, who were
common friends of Nanavatis and Ahujas, introduced Ahuja and his sister to
Nanavatis. Ahuja was unmarried and was about 34 years of age at the time of his
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, which culminated in illicit 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, loaded the same, went to the flat of
Ahuja entered his bed-room and shot him dead.
Thereafter, the accused surrendered himself
to the police. He was put under arrest and in due course he was committed to
the Sessions for facing a charge under s. 302 of the Indian Penal Code.
The defence version, as disclosed in the
Statement made by the accused before the Sessions Court under s. 342 of the
Code of Criminal Procedure and 575 his deposition in the said 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 for about three days in the company of his younger brother and his
wife. Thereafter, they returned to Bombay and after a few days his brother and
his wife left them. After they had left, the accused noticed that his wife was
behaving strangely and was not responsive or affectionate to him. 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, when she seemed to go tense and
unresponsive. After lunch, when he questioned her about her fidelity, she shook
her head to indicate that she 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 to Ahuja'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, dropped
them 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 authorities in the ship, that he wanted to draw a
revolver and six rounds from the stores of the ship as he was going to drive
alone to Ahmednagar by night, though the real purpose was to shoot himself. On
receiving the revolver and six cartridges, and put it inside a brown envelope. Then
he drove his car to Ahuja's office, and not finding him there, he drove 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 I to marry every woman I sleep with ?" The accused
became enraged, put the envelope containing the revolver on a cabnit nearby,
and threatened to thrash the deceased. The deceased made a sudden move to grasp
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 resulting in his
death. After the shooting the accused went back to 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, learned counsel for the
accused, raised before us the following points:
(1) Under s. 307 of the Code of Criminal
Procedure, the High Court should decide whether a reference made by a Sessions
Judge was competent only on a 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) Under s.
307(3) of the said Code, the High Court had
no power to set aside the verdict of a jury on the ground that there were mis-directions
in the charge made by the Sessions Judge. (3) I here were no mis-directions at
all in the charge made by the Sessions Judge; and indeed his charge was fair to
the prosecution as well to the accused. (4) The verdict of the jury was not
perverse and it was such that a reasonable body of persons could arrive at it
on the evidence placed before them.
(5) In any view, the accused shot at the
deceased under grave and sudden provocation, and therefore even if he had
committed 577 an offence, it would not be murder but only culpable homicide not
amounting to murder.
Mr. Pathak elaborates his point under 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
body of persons could not have reached the conclusion 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 to
the reasons given by the Sessions Judge.
If, on a consideration of the said reasons,
it will of the view that no reasonable body of persons could have come to that
conclusion, it will then have to consider the entire evidence to ascertain
whether the verdict of the jury is unreasonable. If the High Court holds that
the verdict of the jury is not unreasonable, in the case of a verdict of
"not guilty", the High Court acquits the accused, and in the case
where the verdict is one of "guilty" it convicts the accused. In case
the High Court holds that the verdict of "not guilty", is
unreasonable, it refers back the case to the Sessions Judge, who convicts the
accused; thereafter the accused will have a right of appeal wherein he can
attack the validity of his conviction on the ground that there were mis-directions
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 the charge to the jury was
vitiated by mis-directions. In short, the argument may be put 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) if the reference is competent, the High Court
can 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 vitiated by mis-directions in the charge to the jury.
The question raised turns upon the
construction of the relevant provisions of the Code of Criminal Procedure. The
said Code contains two fascicule of sections dealing with two different
situations. Under s. 268 of the Code, "All trials before a Court of
Session shall be 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, if any, are concluded, the Court
shall proceed to charge 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 the parties, and to decide upon all matters of fact
which it is necessary to prove in order to enable evidence of particular matter
to be given.
It is the duty of the jury "to decide
which view of the facts is true and then to return the verdict which under such
view ought, according to the directions of the Jury, to be returned."
After the charge to the jury, the jury retire to 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
necessary to disagree with the verdict of the jurors or of the majority of
them, he gives judgment accordingly.
If the accused is acquitted, the Judge shall
record a verdict of acquittal; if the accused is convicted, the Judge 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 the High Court. But s. 418 of the Code provides:
"(1) An appeal may lie on a matter of
fact as well as a matter of law except where the trial was by jury, 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 Court in
the matter of disposing of an appeal, such as calling for the record, hearing
of the pleaders, and passing appropriate orders therein. But sub-s. (2) of s.
423 says:
"Nothing herein contained shall
authorise the Court to alter or reverse the verdict of the jury, unless it is
of opinion that such verdict is erroneous owning to a misdirection by the
Judge, or to a misunderstanding on the part of the jury of the law as laid down
by him." It may be noticed at this stage, as it will be relevant in
considering one of the arguments 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 of an appellate court imposed 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 of the jurors or the majority of them; and in that event s. 307
provides for a machinery to meet that situation.
As the argument mainly turns upon 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 had been tried, and is
clearly of 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 the
case accordingly, recording the grounds of his opinion, and, when the verdict
is one of acquittal, stating the offence which he considers to have been
committed, 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 the case so submitted the
High Court may exercise any of the powers which it may exercise on an appeal,
and subject thereto it shall, after considering the entire evidence and after
giving due weight to the opinions of the Sessions Judge and the jury, acquit or
convict such accused of any offence of which the jury could have convicted him
upon the charge framed and placed before it; and, if it convicts him, may pass
such sentence as might have been passed by the Court of Session.
This section is a clear departure from the
English law. There are good reasons for its enactment.
Trial by jury outside the Presidency Towns
was first introduced in the Code of Criminal Procedure of 1861, and the verdict
of the jury was, 581 subject to re-trial on certain events, final and
conclusive. This led to miscarriage of justice through jurors returning
erroneous verdicts due to ignorance and inexperience. The working of the system
was reviewed in 1872, by a committee appointed for that purpose and on the
basis of the report of the said Committee, s. 262 was introduced in the Code of
1872. Under that section, where there was difference of view between the jurors
and the judge, the Judge was empowered to refer the case 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 under the amended section the condition for
reference was that the High Court should differ from the jury completely; but
in the Code of 1893 the section was amended practically in terms as it now
appears in the Code. The history of the legislation shows that the section was
intended as a safeguard against erroneous verdicts of inexperienced furors and
also indicates the clear intention of the Legislature to confer on a High Court
a separate jurisdiction, which for convenience may be described as
"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
to the conditions obtaining in India. It is, therefore clear 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 a jury trial, and that in a case submitted by the Sessions Judge when he
differs from the verdict of the jury: in the former the acceptance of the
verdict of the jury by the sessions Judge is considered to be 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
necessitated the 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 Judge shall disagree with the
verdict of the jurors, and (2) he is clearly of the opinion that it is
necessary in the ends of justice to submit the case to the High Court. If the
two conditions are complied with, he shall submit the case, recording the
grounds of his opinion. The words "for the ends of justice" are
comprehensive, and coupled with the words "is clearly of opinion", they
give the Judge a discretion to enable him to exercise his power under different
situations, the only criterion 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 opinion that the verdict is one which no reasonable body of men could have
reached on the evidence. It follows that if a Judge differs from the jury and
is clearly of such an opinion, he shall submit the case to the High Court
recording the grounds of his opinion. In that event, the said reference is
clearly competent. If on 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 an opinion on the verdict of the jury. The
argument that though the Sessions Judge has complied with the conditions
necessary for making a references, the High Court shall reject the reference as
incompetent without going in to the evidence if the reasons given do not
sustain the view expressed by the Sessions Judge, is not supported by the
provisions of sub-s. (1) of s. 307 of the Code. But it is said that it is borne
out of the decision of the Judicial Committee in Ramanugrah Singh's case(1). In
that case the Judicial Committee relied upon the words "ends of
justice" end held that the verdict was one which no reasonable body of men
could have, reached on the evidence and further laid down that the requirements
of the ends of justice must be the determining factor both for the Sessions
Judge in making the reference and for the High Court in disposing of it. The
Judicial Committee observed:
"In general, if the evidence is such
that it can properly support a verdict either of guilty or not guilty,
according to the view taken of it by the trial court, and if the jury take one
view of the evidence and the judge thinks that they should have taken the
other, the view 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 of the jury. If, however, the High Court considers that on the
evidence no reasonable body of men could have reached the conclusion arrived at
by the jury, then the reference was justified and the ends of justice require
that the verdict be disregarded." The Judicial Committee proceeded to
state:
"In their Lordships' opinion had the
High Court approached the reference 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 did not require any
interference with the verdict of the jury." Emphasis is laid on the word
"justified", and it is argued that the High Court should 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 case to the High Court.
The Judicial Committee does not lay down any
such proposition. There, the jury brought in a verdict of not
"guilty" under s. 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 of justice 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
in the reference, but were dealing with a case where the High Court on a
consideration of the entire evidence accepted the reference and the Judicial
Committee held on the evidence that there was no justification for the ends of
justice to accept it. This decision, therefore, has no bearing on the
competency of a reference under s. 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 Judge and the jury, the High Court shall acquit or
convict the accused. 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 to
conflict of opinion and it is 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
we must give it a reasonable construction consistent with the intention of the
Legislature in enacting the said section. Under the second part of the section,
special jurisdiction to decide a case referred to 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 as might have been passed
by the Court of Session. But before doing so, it shall consider the entire
evidence and give due weight to the opinions of 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 a revision. The procedural
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 the expression
"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 limitation on the second 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 question arises, how to reconcile the provisions of s. 423 (2) with those
of s. 307 of the Code ? Under sub-s. (2) of s. 423:
"Nothing herein contained shall
authorise the Court to alter or reverse the verdict of a jury, unless it is of
opinion that such verdict is erroneous owing to a misdirection by the Judge, or
to a misunderstanding on the part of the jury of the law as laid down by
him." It may be argued that, as an appellate court cannot alter or reverse
the verdict of a jury unless such a verdict is erroneous owing to a
misdirection by the Judge, or to a misunderstanding on the part of the jury of
the law as laid down by him, the High Court, 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 of the High
Court; it only restates the scope of the limited jurisdiction conferred on the
could under s. 418 of the Code, and that Could not have any application to the
special jurisdiction conferred on the High Court under s. 307. That apart, a
perusal of the provisions of s. 423 (1) indicates that there are powers
conferred 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 construction will be that the 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 defeats this purpose, for it equates the jurisdiction conferred
under s. 307 with that of an appellate court in a jury trial. That construction
would enable the High Court to correct an erroneous verdict of a jury only in a
case of misdirection by the Judge but not in a case affair and good charge.
This result effaces the distinction between the two types of jurisdiction.
Indeed, learned counsel for the appellant has taken a contrary position. He
would say that the High Court under s. 307 (3) could not interfere with the
verdict of the jury on the ground that there were mis-directions in the charge
to the jury. This argument is built upon the hypothesis that under the Code of
criminal Procedure there is a clear demarcation of the functions of the jury
and the Judge, the jury dealing with facts and the Judge with the and therefore
the High Court could set aside a verdict on the ground of misdirection only
when an appeal comes to it under s. 418 and could only interfere with the
verdict of the jury for the ends of justice, as interpreted by the Privy
Council, when the matter comes to it under 8. 307 (3). If this interpretation
be accepted, we would be attributing to the Legislature an intention to
introduce a circuitous method and confusion in the disposal of criminal cases.
The following illustration will demonstrate the illogical result of the
argument. The jury brings in a verdict of "guilty" on the basis of a
charge replete with mis-directions; the Judge disagrees with that verdict and
states the case to the High court; the High Court holds that the said verdict
is not erroneous on the basis of the charge, but is of the opinion that the
verdict is erroneous because of the mis-directions 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 mis-directions 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 mis-directions in the
charge to the jury, the High Court cannot set aside the conviction but must
reject the reference; and after the conviction, the accused may prefer an
appeal to the High Court. This procedure will introduce confusion in jury
trials, introduce multiplicity of proceedings, and attribute 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 entire evidence, to give 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-section are "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 of persons could come to;
it may be a perverse verdict; it may be a divided verdict and may not carry the
same weight as the united one does; it may be vitiated by mis-directions or
non-directions. How can a Judge give any weight to a verdict if it is induced
and vitiated by grave mis-directions in the charge ? That apart, the High Court
has to give due weight to the opinion of the Sessions Judge. The reasons for
the opinion of the Sessions Judge are disclosed in the case submitted by him to
the High Court. If the case stated by the sessions Judge disclosed that there
must have been mis-directions 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) of s. 307 of the Code: it can acquit or
convict an accused. It shall take into consideration the entire evidence in the
case; it shall give due weight to the opinions of the Judge and the jury; it combines
in itself the functions of the Judge and jury; and it is entitled to come to
its independent opinion. The phraseology used does not admit of an expressed or
implied limitation on the jurisdiction of the High Court.
It appears to us that the Legislature
designedly conferred a larger power on the High Court under s. 307(3) of the
code than that conferred under s. 418 thereof, as in the former case the
Sessions Judge differs from the jury while in the latter he agrees with the
jury.
The decisions cited at the Bar do not in any
way sustain in narrow construction sought to be placed by learned counsel on s.
307 of the code.
In Ramanugrah Singh's case (1), which have
been referred to earlier, the Judicial Committee 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 jury may not be conclusive in 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 evidence placed before the High Court the
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 not
purport to lay down exhaustively the circumstances under which the High Court
could interfere under the said sub-section with the verdict of the jury. This
Court in Akhlakali Hayatalli v. The State of Bombay accepted the view of the
Judicial Committee on the construction of s. 307 of the Code of Criminal
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 the only guide in interfering with the verdict of the jury:
"The charge was not attacked before the
High court nor before us as containing any mis-directions or non-directions to
the jury such as to vitiate the verdict." This passage recognizes the
possibility of interference by the High Court with the verdict of the jury
under the said sub-section if the verdict is vitiated by mis-directions or
non-directions. So too the decision of this court in Ratan Rai v. State of
Bihar assumes that such an interference is permissible if the verdict of the
jury was vitiated by mis-directions. In that case, the appellants were charged
under ss. 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 the
charge to the jury was defective, and did not place the entire evidence before
the 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 the
entire evidence and the charge as framed and placed before the jury and to come
to its own conclusion whether the evidence was such that could properly support
the verdict of guilty against the appellants, allowed the appeal and remanded
the matter to the High Court for disposal in accordance with the provisions of
s. 307 of the Code of Criminal Procedure. This decision also assumes that a
High Court could under s. 307 (3) of the Code of Criminal Procedure interfere
with the verdict of the Jury, if there are mis-directions in the charge and
holds that in such a case it is incumbent on the court to 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. The State of West Bengal, held that where the
Sessions Judge disagreed with the 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
respect of 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) of s. 307 of the Code of Criminal Procedure and
also had the effect of preventing the High 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 that case
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 of the Code, because
the very foundation of the exercise of that power was 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-section whenever a Judge submits a case under that
section, he shall not record judgment of acquittal or of conviction on any of
the 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 be in appropriate. The
decision of a division bench of the Patna High Court in Emperor v. Ramadhar
Kurmi may 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 it is
vitiated by serious mis-directions 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 have no weight on a 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 the following
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 him he 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 High Court may reject the reference as incompetent : the 593
High Court can also reject it if the Sessions Judge has contravened sub-s. (2)
of s. 307. (3) If the case submitted shows that the Sessions Judge has
disagreed with the verdict of the jury and that he is clearly of the opinion
that no reasonable body of men could have reached the conclusion arrived at by
the jury, and he discloses his reasons for the opinion, sub-s. (3) of s. 307 of
the Code comes into play, and thereafter the High Court has an obligation to
discharge its duty imposed there under. (4) Under sub-s. (3) of s. 307 of the
Code, the High Court has to consider the entire evidence and, after giving due
weight to the opinions of the Sessions Judge and the jury, acquit or convict
the accused.
(5) The High Court may deal with the
reference in two ways, namely, (i) if there are mis-directions vitiating the
verdict, it may, after going into the entire evidence, disregard the verdict of
the jury and come to its own conclusion, and (ii) even if there are no mis-directions,
the High court can interfere with the verdict of the jury if it finds the
verdict "perverse in 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 on the evidence. (6) In the disposal of the said reference, the
High Court can exercise any of the procedural powers appropriate to the
occasion, such as, issuing of notice, calling for records, remanding the case,
ordering a retrial, etc. We therefore, reject the first contention of learned
counsel for the appellant.
The next question is whether the High Court
was right in holding that there were mis-directions in the charge to the jury. Mis-directions
is something which a 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 to the 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 or non-direction is not
in itself sufficient to set aside a verdict, but it must be such that it has
occasioned a failure of justice.
In Mushtak Hussein v. The State of Bombay,
this Court laid down:
"Unless therefore it is established in a
case that there has been a serious misdirection by the judge in charging the
jury which has occasioned a failure of justice and has misled the jury in
giving its verdict, the verdict of the jury cannot 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 as six mis-directions in the charge to the jury which in its view vitiated
the verdict, and it also stated that there were many others.
Learned counsel for the appellant had taken
each of the said alleged mis-directions and attempted to demonstrate that they were
either no mis-directions at all, or even if they were, they did not in any way
affect the correctness of the verdict.
We shall now take the first and the third mis-directions
pointed out by Shelat, J., as they are intimately connected with each other. They
are really omissions. The first omission 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 Sessions
Judge failed to explain to the jury the legal ingredients of s. 80 of the
Indian Penal Code, and also failed to 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 intention or 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 lies on that person who wishes the Court to believe in its
existence, unless it is provided by any law that the proof of that fact shall
lie on any particular person." Section 105: "When a person is accused
of any offence, the burden of proving the existence of circumstances bringing
the case within any of the General Exceptions in the Indian Penal Code (XLV of
1860) or within any special exception or proviso contained in any other part of
the same Code, or in any law defining the offence, is upon him, and the Court
shall presume the absence of such circumstances." Section 3: "In this
Act the following words and expressions are used in the following senses,
unless a contrary intention appears from the context:- A fact is said to be
disproved when, after considering the matters before it, the Court either
believes that it does not exist, or considers its non-existence so probable
that a prudent man 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 that the Court shall presume a
fact, it shall regard such fact as 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 it in other words, the
accused is presumed to be innocent until his 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 throws a burden
on him to rebut the 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 illustration based on the facts of the
present case may bring out the meaning of the said provision. The prosecution
alleges that the accused intentionally shot the deceased; but the accused
pleads that, though the shots emanated from his revolver and hit the deceased,
it was by accident, that is, the shots went off the revolver in the course 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 the
absence of circumstances bringing the case within the provisions of s. 80 of the
Indian Penal Code, that is, it shall presume that the shooting was not by
accident, and that the other circumstances bringing the case within the
exception did not exist; but this presumption may be rebutted by the accused by
adducing evidence to 597 support his plea of accident in the circumstances
mentioned therein. This presumption may also be rebutted by admissions made or
circumstances elicited by the evidence led by the prosecution or by the
combined effect of such circumstances and the evidence adduced by the accused.
But the section does not in any way affect the burden that lies on the
prosecution to prove all the ingredients of the offence with which the accused
is charged: that burden never shifts. The alleged conflict between the general
burden which lies on the prosecution and the special burden imposed on the
accused under s. 105 of the Evidence Act is more imaginary than real. Indeed,
there is no conflict at all. There may arise three different situations: (1) A
statute may throw the burden of proof of all or some of the ingredients of an
offence on the accused: (see ss. 4 and 5 of the Prevention of Corruption Act).
(2) The special burden may not touch the ingredients of the offence, but only
the protection 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 the Indian Penal Code). In the
first case the burden of proving the ingredients or some of the ingredients of
the offence, as the case may be, lies on the accused. In the second case, the
burden of bringing the case under the exception lies on the accused. In the
third case, though the burden lies on the accused to bring his case within the
exception, the facts proved may not discharge the said burden, but may affect
the proof of the ingredients of the offence. An illustration may bring out the
meaning. The prosecution has to 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 to prove the
ingredients of murder, and one of the ingredients of that offence is that the
accused intentionally shot the deceased; the accused pleads that he shot at the
deceased by accident without any intention or knowledge in the doing of a
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 evidence to 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 accident or
inadvertence, i.e., it was done 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 failed
to 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 it
might be said that the general burden to prove the ingredients of the offence,
unless there is a specific statute to the contrary, is always on the
prosecution, but the burden to prove the circumstances coming under the
exceptions lies upon the accused. The failure on the part of the accused to
establish all the circumstances bringing his case under the exception does not
absolve the prosecution to prove the ingredients of the offence; indeed, the
evidence, though insufficient to establish the exception, may be sufficient to
negative one or more of the ingredients of the offence.
599 The English decisions relied upon by Mr. Pathak,
learned counsel for the accused, may not be of much help in construing the
provisions of s.
105 of the Indian Evidence Act. We would,
therefore, prefer not to refer to them, except to one of the leading decisions
on the subject, namely, Woolmington v. The Director of Public Prosecutions. The
headnote in that decision gives its gist, and it read:
"In a trial for murder the Crown 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, the prisoner is entitled to show by evidence or 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 of all the evidence, are left in reasonable doubt
whether, even if his explanation be not accepted, the act was unintentional or
provoked, the prisoner is entitled to be acquitted." In the course of the
judgment Viscount Sankey, L. C., speaking for the House, made the following
observations:
"But while the prosecution must prove
the guilt of the prisoner, there is no such burden laid on the prisoner to
prove his innocence and it is sufficient for him to raise a doubt as to his
guilt; he is not bound to satisfy the jury of his innocence...... Throughout
the web of the English Criminal Law one golden thread is always to be seen that
it is the duty of the prosecution to prove the prisoner's guilt subject to what
I have already said as to the defence of insanity 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, as to whether the prisoner killed the deceased with a
malicious intention, the prosecution has not made out the case and the prisoner
is entitled to an acquittal." These passages are not in conflict with 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 of the offence with which he is charged. As in England so also in
India, the general burden of proof is upon the prosecution;
and if, on the basis of the evidence adduced
by the prosecution or by the accused, there is a 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 provision similar to s. 80 of the Indian Penal Code, but Viscount
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 find in s. 105 of
the Indian Evidence Act.
Reliance is placed by learned counsel 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 of s. 80 of the Indian
Penal Code is on the prosecution. In that case, 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 in the Ceylon Code, which
corresponds to s.
106 of the Indian Evidence Act, it was
enacted that when any fact 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 to have been performed-was unconscious and what took
place in that room that three-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 took place but what took place was this and this speculum
examination." The Judicial Committee pointed out:
"It is not the law of Ceylon that the
burden is cast upon an accused person of 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 the accused person had to discharge.
The summing-up goes on to explain the
presumption of innocence in favour of accused persons, but it again reiterates
that the burden of proving that no criminal operation took place is on the two
accused who were there." The said observations do not support the
contention of learned counsel. Section 106 of Ordinance 14 of 1895 of the
Ceylon Code did not cast upon the accused a 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
of s.105 of the Indian Evidence Act.
The 602 decisions of this Court in The State
of Madras v. A. Vaidyanatha Iyer (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) of the said Act, are examples of a statute throwing the burden
of proving and even of establishing the absence of some of the ingredients of
the 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 the offence under certain circumstances was
on the accused. Further citations are unnecessary as, in our view, the terms of
s.105 of the Evidence Act are clear and unambiguous.
Mr. Pathak contends that the accused did not
rely upon any exception within the meaning of s.80 of the Indian Penal Code and
that his plea all through has been only that 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 by the accused,
the burden of proof became only academic and the jury was in a position to come
to one conclusion or other on the evidence irrespective of the burden of proof.
Before the Sessions Judge the 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 of the charge, the learned Sessions Judge stated:
"Before I proceed further I have to
point out another section which is section
80. You know by now that the defence of the
accused is that the firing of the revolver was a matter of accident during a
struggle for possession of the revolver. A struggle or a fight by itself does
not exempt a person.
It is the accident which exempts a 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 or a fight by itself does not
exempt an assailant.
It is only an accident, whether it is in
struggle or a fight or otherwise which can exempt an assailant. It is only an
accident, whether it is in a 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 that there are
several provisions which are to be satisfied before the benefit of this
exception can be claimed by an accused person and it should be that the act
itself must be an accident or misfortune, there should be no criminal intention
or knowledge in the doing of that act, that act itself must be done in a lawful
manner and it must be done by lawful means and further in the doing of it, you
must do it with proper care and caution. In this connection, therefore, even
while considering the case of accident, you will have to consider all the
factors, which might emerge from the evident before you, whether it was proper
care and caution to take a loaded revolver without a safety catch to the
residence of the person with whom you were going to talk and it you do not get
an honourable answer you was repaired to thrash him. You have also to consider
this further circumstance whether it is an act with proper care and caution to
keep that loaded 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 as Judges of 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 the ingredients of the offence with those of the
exception. He did not place before the jury the distinction in the matter of
burden of proof between the ingredients of the offence and those of the
exception. He did not tell the jury that where the accused relied upon the
exception embodied in s. 80 of the Indian Penal Code, there was a statutory
presumption against him and the burden of proof was on him to rebut that
presumption. What is more, he told the jury that it was for them to decide
whether the act of the accused in the case could be said to be an act which was
lawfully done in a lawful manner with proper care and caution. This was in
effect abdicating his funtions 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 care and
caution" and pointed out to them the application of the said legal
terminology to the facts of the case. On such a charge as in the present case,
it was not possible for the jury, who were laymen, to know the exact scope of
the defence and also 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 burden of proof to rebut the presumption was on him. In such circumstances,
we cannot predicate that the jury understood the legal implications of s. 80 of
the Indian Penal Code and the scope of the burden of proof under s.
105 of the Evidence Act, and gave their
verdict correctly. Nor can we say that the jury understood the distinction
between the ingredients of the offence 605 and the circumstances that attract
s. 80 of the Indian Penal Code and the impact of the proof of some of the said
circumstances on the proof of the ingredients of the offence. The said
omissions 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 to grave and sudden
provocation or 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 to decide. It was for the learned Judge to decide as a question of law whether
the sudden confession by the wife of the accused amounted to grave and sudden
provocation as against the deceased Ahuja which on the authorities referred to
hereinabove it was not. He was therefore in error in placing this alternative
case to the jury for their determination instead of deciding it himself."
The misdirection according to the learned Judge was that the Sessions Judge in
his charge did not tell the jury that the sudden confession of the wife to the
accused did not in law amount to 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 that the said question was one of law and that it was for the Judge
to express his view thereon. Mr. Pathak contends that there is an essential
difference between the law of England and that of India in the matter of the
charge to the jury in respect of grave and sudden provocation. The House of
Lords 606 in Holmes v. Director of Public Prosecution (1) laid down the law in
England thus:
"If there is no sufficient material,
even on a view of the evidence most favourable to the accused, for a jury
(which means a reasonable jury) to form the 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 direct the
jury that the evidence does not support a verdict of manslaughter.
If, on the other hand, 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 to
passion or loss of control as to be led to use the 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 respective duties 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 person to do what the accused did ?' (which is for the
judge to rule), and, assuming that the judge's ruling is in affirmative, asking
the jury: 'Do you consider that, on the facts as you find them from the evidence,
the provocation was in 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 it is 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 that the
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 statutory provisions,
and that under 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 amounting to murder is one of fact", and
therefore, unlike in England, in India both the aforesaid questions fall
entirely within the scope of the jury and they are for them to decide. To put
it in other words, whether a reasonable person in the circumstances of a
particular case committed the offence under provocation which was grave and
sudden is a question of fact for the jury to decide. There is force in this
argument, but it is not necessary to express our final opinion thereon, as the
learned Attorney-General has conceded that there was no misdirection in regard
to this matter.
The fourth misdirection found by the High
Court is that the learned Sessions Judge told the jury that the prosecution
relied on the circumstantial evidence and asked them to apply the stringent
rule of burden of proof applicable to such cases, whereas in fact there was
direct evidence of Puransingh in the shape of 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.
There are no direct witnesses, direct witnesses as they are called, of the
event in question. Prosecution relies on certain 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. That is called circumstantial evidence. It
is not that prosecution cannot rely on circumstantial evidence because it is
not always the case or generally the case that people who go 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 in mind certain principles,
namely, that the facts on which the prosecution relies must be fully
established.
They must be fully and firmly established.
These facts must lead to one conclusion and
one only namely the guilt of the accused and lastly it must exclude all
reasonable hypothesis consistent with the innocence of the accused, all
reasonable hypothesis consistent with the innocence of the accused should be
excluded. In other words you must come to the conclusion by all the human
probability, it must be the accused and the accused only who must have
committed this crime. That is the standard of proof in a case resting on
circumstantial evidence." Again in paragraph 11 the learned Sessions Judge
observed that the jury were dealing with circumstantial evidence and
graphically stated:
"It is like this, take a word, split it
up into letters, the letters, may individually mean nothing but when they are
combined 609 they will form a word pregnant with meaning.
That is the way how you have to consider the
circumstantial evidence. You have to take all the circumstances together and
judge for yourself whether the prosecution have established their case,"
In paragraph 18 of the charge, the learned Sessions Judge dealt with the
evidence of Puran singh separately and told the jury that if his evidence was
believed, it was one of the best forms of evidence against the man who made the
admission and that if they accepted that evidence, then the story of the
defence that it was an accident would become untenable. Finally he summarized
all the circumstances on which 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 whether the circumstances are
established beyond all reasonable doubt. 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 it leaves no room for any reasonable hypothesis
consistent with the innocence of the accused regard being had to all the
circumstances in the 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 fully and 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
accused then 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 the learned Sessions Judge dealt with the evidence in two
parts, in one part he explained to the jury the well settled rule of approach
to circumstantial evidence, whereas in another part he clearly and definitely
pointed to the jury the great evidentially value of the extra-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 if there 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 at the question from the standpoint of the possible effect of the said
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 the jury should apply the rule of
circumstantial evidence settled by decisions.
Though at one place he emphasized upon
evidentiary value of a confession he later on included that confession also as
one of the circumstances and again directed the jury to apply the rule of
circumstantial evidence. It is 611 not disputed that the extra-judicial
confession made to Puransingh is direct piece of evidence and that the
stringent rule of approach to circumstantial evidence does not apply to it. If
that confession was true, it cannot be disputed that the approach of the jury
to 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 Sessions
Judge. 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 told of their effect on the credibility of the evidence of Sylvia and
Nanavati. Shelat, J., observed in regard to this circumstance thus:
"It cannot be gainsaid that these
letters were important documents disclosing the state of mind of Mrs. Nanavati
and the deceased to a certain extent. If these letters had been read in
juxtaposition of Mrs. Nanavati's evidence they would have shown that her
statement that she felt that Ahuja had asked her not to see him for a month for
the purpose of backing out of the intended marriage was not correct and that
they had agreed not to see each other for the purpose of giving her and also to
him an opportunity to coolly think out the implications of such a marriage and
then to make up her own mind on her own. The letters would also show that when
the accused asked her, as he said in his 612 evidence, whether Ahuja would
marry her, it was not probable that she would fence that question. On the other
hand, she would, in all probability, have told him that they had already
decided to marry. In my view, the omission to refer even once to these letters
in the charge especially in view of Mrs.
nanavati's evidence was a nondirection
amounting to misdirection." Mr. Pathak contends that these letters were
read to the jury by counsel on both sides and a 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 by the Sessions Judge was not a 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 to the 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 the evidence of certain witnesses was a misdirection.
Rejecting that plea, Humphreys, J., observed:
"The jury had the statements before
them. They had the whole of 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 have
forgotten 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 saying this, the court is by no means
saying that it might not have been more satisfactory if the judge had referred
to the evidence of the two witnesses, seeing that he did not think it necessary
to refer to some of the statements made by the accused after the occurrence. No
doubt it would have been more satisfactory from 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 judge in omitting those statements, and it
was within his discretion." This passage does snot lay down as a
proposition of law that however important certain documents or pieces of
evidence may be 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 made by witnesses were 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 the law but did not deal with evidence except in regard to the
appellant's character. The jury convicted the appellant. The court held that,
"although in a complicated and lengthy case it was incumbent on the court
to 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 for the
evidence not to be reviewed in the summing-up." This is also a 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 place before the jury
certain evidence amounts to a misdirection or not falls to be decided on the
facts of cash case.
These letters show the exact position of
Sylvia in the context of her intended marriage with Ahuja, and help to test the
truthfulness or otherwise of some of the assertions made by her to Nanavati. A
perusal of these letters indicates 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 wanted to marry in view of the serious consequences involved in taking
such a step. Both Nanavati and Sylvia gave evidence giving an impression that
Ahuja was backing out of his promise to marry Sylvia and that was the main
reason for Nanavati going to Ahuja's flat for an explanation. If the 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 the only obstruction in the way was Nanavati, and if Nanavati had
expressed his willingness to be out of the way and even to help them to marry,
their evidence that Sylvia did not answer the direct question about 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 the jury. It is no answer to say that the
letters were read to the jury at different stages of the trial or that they
might have read the letters themselves for in a jury trial, especially where
innumerable documents are filed, it is difficult for a lay jury, unless
properly directed, to realise the relative importance of specified documents in
the context of different aspects of a case. That is why the Code of Criminal
Procedure, under s. 297 thereof, imposes a duty on the Sessions Judge to charge
the jury after the entire evidence is given, and after counsel appearing for
the 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 them
the 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 to the 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 fact
in itself cannot absolve the Judge from his 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 elicit from
the police officer, Phansalkar, what Puransingh is alleged to have stated to
him orally, in order to contradict the evidence of Puransingh in the court, and
the Judge also dealt with the evidence so elicited in 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 of the said building, he asked him why he had
killed Ahuja, and the accused told him that he had a quarrel with Ahuja as the
latter had "connections" with his wife and therefore he killed him.
At about 5-5 P. M. on April 27, 1959, this witness reported this incident to
Gamdevi Police Station. On that day Phansalkar (P. W. 13) was the Station House
Duty Officer at that station from 2 to 8 P.M. On the basis of the statement of
Puransingh, Phansalkar went in 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
"Jivan Jyot." After reaching the place of the alleged offence,
Phansalkar learnt from a doctor that Ahuja was dead and he also made enquiries
from Miss Mammie, the sister of the deceased. He did not record the statement
made by Puransingh. But latter 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 statement was recorded by Mokashi. In the statement taken by Mokashi
it was not recorded that Puransingh told 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 the jury, referred to that statement. After giving the summary
of the evidence given by Puransingh, the learned Sessions Judge proceeded to
state in his charge to the jury:
617 "Now the conversation between him
and Phansalkar (Sub-Inspector) was brought on record in which what the
chowkidar told Sub- Inspector Phansalkar was, the servants of the flat of Miss
Ahuja had informed him 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 the admission made by Mr. Nanavati to him that he killed
the deceased 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 to give information about
this crime and while coming back he was with Sub- Inspector Phansalkar and
Sub-Inspector Phansalkar in his own statement to Mr. Mokashi has referred to
the conversation which he had between him and this witness Puransingh and that
had been brought on 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 is manifest
from the summing-up that the learned Sessions Judge not only read to the jury
the evidence of Phansalkar wherein he stated that Puransingh did 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 evidence
of Puransingh. It is not possible 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 because of that contradiction. If the said
evidence was not admissible, the placing of that evidence before the jury was
certainly a grave misdirection which must have affected their verdict. The
question is whether such evidence is legally admissible. The alleged omission
was brought on record in the cross-examination of Phansalkar, and, after having
brought 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 used only 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 Puransingh to
Phansalkar, it not having been recorded, could not be used at all to contradict
the evidence of Puransingh under the said section. He further argues that the
alleged omission not being a contradiction, it could in no event be used to
contradict Puransingh. Learned counsel for the accused, on the other hand,
contends that the alleged statement was made to a police officer before the
investigation commenced and, therefore, it was not hit by s. 162 of the Code of
Criminal Procedure, and it 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
a Police officer in the course of an 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 witness is
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 part of such
statement is so used, any part thereof may also be 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 for the application
of s. 162 of the Code is that the statement should have been made to a
police-officer in the course of an investigation under Chapter XIV of the Code.
If it was not made in the course of such
investigation, the admissibility of such statement would not be governed by s.
162 of the Code. The question, therefore, is whether Puransingh made the
statement to Phansalkar in the course of investigation. Section 154 of the Code
says that every information relating to the commission of 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 the order of a
Magistrate, investigate any cognizable case which a court having jurisdiction over
the local area within the limits of such station would have power to inquire
into or try under the provisions of Chapter XIV relating to the place of
inquiry or trial. The evidence in the case clearly establishes that Phansalkar,
being the Station House Duty officer at Gamdevi Police-station on April 27,
1959, from 2 to 8 P. M. was an officer in charge of the 620 Police-station
within the meaning of the said sections. Puransingh in his evidence says that
he went to Gamdevi Police-station and gave the information of the shooting
incident to the Gamdevi Police. Phansalkar in his 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 said incident. On this
uncontradicted evidence there cannot be any doubt that the investigation of the
offence had commenced and Puransingh made the statement to the police officer
in the course of the 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. 154 of the Code of Criminal Procedure, no
investigation in law could have commenced with the meaning of s. 156 of the
Code. The question whether investigation had commenced or not is a question of
fact and it does not depend upon any irregularity committed in the matter of
recording the first information report by the concerned police officer. If so,
s. 162 of the Code is immediately attracted. Under s. 162(1) of the Code, no
statement made by any person to Police- officer in the course of 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 in such inquiry or trial whose statement has been reduced into
writing, any part of his statement, if duly proved, may be used by the accused
to contradict such witness. The proviso cannot be invoked to bring in the
statement made by Phansalkar to Inspector Mokashi in the cross-examination of
Phansalkar, for the statement made by him was not used to contradict the
evidence of Phansalkar. The proviso cannot obviously apply to the oral 621
statement made by Puransingh to Phansalkar, for the said statement of
Puransingh has not been reduced into writing. The faint argument of learned
counsel for the accused that the statement of Phansalkar recorded by Inspector
Mokashi can be treated as a recorded statement of Puransingh himself is to be
stated only to be rejected, for it is impossible to treat the recorded
statement of Phansalkar as the recorded statement of Puransingh by a
police-officer. If so, the question whether the alleged omission of what the
accused told Puransingh in Puransingh's oral statement to 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. We are, therefore,
clearly of the opinion that not only the learned Sessions Judge acted illegally
in admitting the alleged omission in evidence to contradict the evidence of
Puransingh, but also clearly misdirected himself in placing the said evidence
before the jury for their consideration.
In addition to the mis-directions pointed out
by the High 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 Commodore Nanda had come to tell you that he is a good shot and
Mr.
Kandalawala said that here was a man and good
marksman, would have shot him, 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 is a misdirection, we do
not think that the said passage, having regard to the other circumstances of
the case, could have in any way affected the verdict of the jury. It is,
therefore, clear that there were grave mis-directions in this case, affecting
the verdict of the jury, and the High Court was certainly 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, in exercise of its discretionary jurisdiction under Art. 136
of the Constitutions interfere with the findings of the High Court. There is
force in this argument. But, as we have heard counsel at great length, we
propose to discuss the evidence.
We shall now proceed to consider the evidence
in the case. The evidence can be divided into three parts, namely, (i) evidence
relating to the conduct of the accused before the shooting incident, (ii)
evidence in regard to the conduct of the accused after the incident, and (iii)
evidence in regard to the 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 to know 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, he
found his wife behaving strangely and without affection towards him.
Though on that ground he was unhappy and
worried, he did not 623 suspect of her unfaithfulness to him. On the morning of
April 27, 1959, he and his wife took out their sick dog to the Parel Animal
Hospital.
On their way back, they stopped at the Metro
Cinema and his wife bought some tickets for the 3- 30 show. After coming home,
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 his wife 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 she did 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 ?" and she said
"Yes" When he asked her "Have you been faithful to me ?",
she shook her head to 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 did not think that his
wife was unfaithful to him, would have suddenly thought that she 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 or was 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 appear to be the natural reaction
of a husband. The recollection of her preference to 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 lover of his wife. There was nothing extraordinary in his wife keeping
a previous engagement with Miss Mammie and particularly when she could rely
upon her close relations not to misunderstand her. The circumstances under
which the confession of unfaithfulness is alleged to 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 so suddenly at lunch time, even if
she had purchased the tickets, it is not likely that he would have taken her
and the children to the cinema. Nanavati then proceeds to say in his evidence :
on his 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 intentions of Ahuja and whether Ahuja was
prepared to marry her and look after the children;
he wanted an explanation from Ahuja for his
caddish conduct. In the cross-examination he 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 out of the situation; and he would thrash him if he
refused to do so. The honourable course which he expected of the deceased was
to marry his wife and look after the children. He made it clear further that
when he went to see Ahuja the main thing in his mind was to find out what
Ahuja's intentions were towards his wife and children and to find out the
explanation for his conduct. Sylvia in her evidence says that 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, according to him, went to Ahuja's flat to 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 that
different persons react, under similar circumstance, differently. A husband to
whom his wife confessed of infidelity may kill his wife, another may kill his
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
been deceived by his wife would voluntarily go to the house of his wife's
paramour to ascertain his intentions, and, what is more, to ask him to take
charge of his children. What was the explanation Nanavati 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 question of Ahuja
seducing an innocent girl, but both 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 decided to marry and, therefore, no further
elucidation of the intention of Ahuja by Nanavati was necessary at all. It is
true that Nanavati says in his evidence that 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 also in her evidence says that when her husband asked
her whether Ahuja 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
is amply 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 you spoke about your
need to marry and about the various girls you may marry, something inside me
snapped and I know that I could not bear the thought of your loving or being
close to someone else." Reliance is placed upon these words by learned
counsel for the accused in support of his contention that Ahuja intended to
marry another girl. But this letter is of May 1958 and by that time it does not
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 passed by,
the relationship between them 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 letter dated April 17, 1959, written ten days prior to
the shooting incident, dispels it; therein she writes "In any case nothing
is going to stop my coming to you. My decision 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 to see 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 she tried to wriggle out of these letters and sought to
explain them away; but the clear phraseology of the last letter speaks 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 regard to other matters, indicates that having
lost her lover, out of necessity or out of deep penitence for her past
misbehavior, she is out to help he husband in his defence. This correspondence
belies the entire story that Sylvia did not reply to Nanavati when the latter
asked her whether Ahuja was willing to marry her and that was the reason why
Nanavati wanted to visit Ahuja to ask him about him intentions. We cannot
visualize Nanavati as a romantic lover determined to immolate himself to give
opportunity to his unfaithful wife to start a new life of happiness and love
with her paramour after convincing him that the only honourable course open to
him was to marry her and take over his children. Nanavati was not ignorant of
the ways of life 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 about marrying his wife and looking after the children.
628 Then, according to Nanavati, he drove his
wife and children to cinema, and promising them to come and pick them up at the
end of the show at about 6 p. 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 their
sick dog to the Parel Animal Hospital. It is not his evidence that after going
to the hospital he want to his ship before returning home. It is not 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 his subsequent evidence. He met Captain Kolhi and asked for his
permission to draw a revolver and six rounds because he was going to drive to
Ahmednagar by night. Captain Kolhi gave him the revolver and six rounds, he
immediately loaded the revolver with all the six rounds and put the revolver inside
an envelope which was 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 the revolver? According to him he wanted to shoot
himself after driving far away from his children. But he did not shoot himself
either before or after Ahuja was shot dead. The taking of the revolver on false
pretext and loading it with six cartridges indicate the intention on his part
to shoot somebody with it.
Then the accused proceeded to state that he
put the envelope containing the revolver in his car and found himself driving
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 not there. Before leaving Ahuja's office, the accused looked for
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 that he kept the
revolver in the car when he entered Ahuja's office. On the basis of this
statement, it is contended that if Nanavati had intended to shoot Ahuja he
would have taken the revolver inside Ahuja's office. From this circumstance it
is not possible to say that Nanavati's intention was not to shoot Ahuja. Even
if his statement were true, 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 he straightway
drove to the flat of Ahuja. His conduct at the flat is particularly
significant. His version is that he parked his car in the house compound near
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 rang the doorbell; when a servant opened
the door, he asked him whether Ahuja was in. Having ascertained that Ahuja was
in the house, he walked to his bedroom, opened the door and went in shutting
the door behind him. This conduct is only consistent with his intention to
shoot Ahuja. A person, who wants to seek an interview with another in order to
get an explanation for his conduct or to ascertain his intentions in regard to
his wife 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 it is 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 that when he
told her that he must go and settle the matter with the "swine" she
put her hand upon his arm and said, No, No, you must not go there, don't go
there, he may shoot you." Sylvia in her evidence 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 evidence that Ahuja had no licence for revolver and no revolver of his was
found in his bed-room. In the circumstances, we must say that Sylvia was only
attempting to help Nanavati in his defence. We think that the evidence of
Nanavati supported by 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 of Ahuja, was also
supported by the evidence of Anjani (P.W. 8), the bearer, and Deepak, the Cook.
Anjani opened the door of the flat to 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 five minutes thereafter this
witness went to the bed-room of his master to bring back the tea-tray from
there, and at that time his master went into the bath-room for his bath.
Thereafter, Anjani went to 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 in the bath-room and 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 by his name
"Prem"; he also saw his matter having a towel wrapped around his
waist and combing his hair standing before the dressing-table, when the accused
entered the room and closed the door behind 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. The small
discrepancies in 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 window pane. 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 the bed-room
door. Nanavati in his evidence says that he was in the bed-room of Ahuja for
about 30 to 60 seconds. Whether it was 20 seconds, as Miss Mammie says, or 30
to 60 seconds, as Nanavati deposes, the entire incident of shooting took place
in a few seconds.
Immediately after the sounds were heard,
Anjani and Miss Mammie entered the bed-room and saw the accused.
The evidence discussed so far discloses
clearly that Sylvia confessed to Nanavati of her illicit intimacy with Ahuja;
that Nanavati went to his ship at about 3.30 P.M. and took a revolver and six
rounds on a false pretext and loaded the revolver with six rounds; that
thereafter he went to the office 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 the deceased at about 4-20 P.M.; that he entered the flat and then the
bed-room unceremoniously with the loaded revolver, closed the door behind him
and a few 632 seconds thereafter sounds were heard by Miss Mammie, the sister
of the deceased, and Anjani, servant; that when Miss Mammie and Anjani entered
the bed-room, they saw the accused with the revolver in his hand and found
Ahuja lying on the floor of the bath-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 scrutinize the evidence to
ascertain the conduct of the accused from the time he was found in the bed-room
of Ahuja till he surrendered himself to the 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 the accused 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 the meantime Miss Mammie came there, and said
that the accused had killed her brother.
Miss Mammie in her evidence says that on
hearing the sounds, she went into the bed-room of her brother, and there she
saw the accused nearer to the radiogram than to the door with a gun in his
hand; that she asked the accused "what is this?" but she did not hear
the accused saying anything.
It is pointed out that there are material
contradictions between what was stated by Miss Mammie and what was stated by
Anjani. We do not see any material contradictions. Miss Mammie might not have
heard what the accused said either because she came there after 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 Mammie said to the accused is not of any importance as the import of what
both of them said is practically the 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 in the 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 be the 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 conduct to Miss Mammie or would have phoned for a doctor or asked her to
send for one or at any rate he would not have been in a belligerent mood and
threatened Anjani with his revolver. Learned counsel for the 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 and therefore there was no point in seeking to explain his conduct
to her. But whether Miss Mammie would have been convinced by his explanation or
not, if Nanavati had shot 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 the accidental
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 got into his car
and took a turn in the compound. He was stopped near the gate by 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 that he should not go away from the place before the police
arrived, but the accused told him that he was going to the police and that if
he wanted he could also come with him in the car. At that 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 he told Puransingh that he had killed the deceased as the latter had
"connection" with his wife and that the whole idea was quite absurd.
Puransingh is not shaken in his
cross-examination.
He is an independent witness; though he is a
watchman of Jivan Jyot, he was not an employee of the deceased. After the
accused left the place, this witness, at the instance of Miss Mammie, went to
Gamdevi Police Station and 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 with the said police-officer in the jeep to Jivan Jyot at
about 7 P.M. he went along with the police-officer to the police station where
his statement was recorded by Inspector Mokashi late in the night.
It is suggested that this witness had
conspired with Deepak and Anjani and that he was giving false evidence. We do
not see any force in this contention. His statement was regarded on the night
of the incident itself. It is impossible to conceive that Miss Mammie, who must
have had a shock, would have been in a position to coach him up to give a false
statement. Indeed, her evidence discloses that she was drugged to sleep that
night. Can it be said that these two illiterate 635 witnesses, Anjani and
Deepak, would have persuaded him to make a false statement that night. Though
both of them were present when Puransingh questioned the accused, they deposed
that 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 have easily supported Puransingh by stating that
they also heard what the accused told Puransingh. We also do not think that the
two witnesses are so intelligent as to visualize the possible defence and beforehand
coached Puransingh to make a false statement on the very night of the incident.
Nor do we find any inherent improbability in his evidence 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 not a hardened
criminal and must have had a moral conviction that he was justified in doing
what he did. It was quite natural, therefore, for him to confess his guilt and
justify his act to the watchman who stopped him and asked him to wait there
till the police came. In the mood in which Nanavati was soon after the
shooting, artificial standards of status or position would not 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 we do 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 constable told him that as he was on
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 the police.
This would not have been 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 incident to the police. As the police constable was
not able to give him clear directions in regard to the location of the nearest
police station, the accused went to the house of Commander Samuel, the Naval
Provost Marshal. What happened between the 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 his study in his
flat on the ground floor at New Queen's Road. His window opens 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 accused told him
"I do not quite know what happened, but I think I have shot a man."
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
come inside and explain everything calmly, the accused said "No, thank
you, I must go", "please tell me where 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 affair and that he was on the way to report to him. Nanavati in
his evidence practically corroborates the evidence of 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 where this 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 stand for it.
He asked me many times to go inside his room. But I was not willing to do so, I
was anxious to go to the police station. I told Commander Samuel that there had
been a fight over 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 Samuel that something terrible had
happened, Samuel did not say that; while Nanavati said that he told Samuel that
there had been a fight over a revolver, Samuel did not say that. But
substantially both of them say that though Samuel asked Nanavati more 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 be
mentioned that Samuel is a Provost Marshal of the Indian navy, and he and the
accused are of the same rank though the accused is senior to Samuel as
Commander. As Provost Marshal, Samuel discharges police duties in the navy. Is
it probable that if the deceased was shot by accident, the accused would not
have stated that fact to this witness? Is it likely that he would not have
stepped into his house, particularly when he requested him more than 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 station to
surrender himself ? The only explanation for this unusual conduct on the part
of the accused is that, having committed the murder, he wanted to surrender
himself to 638 the police and to make a clean breast of everything. What is
more, when he was 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 the context, two
answers 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 did he not say
that fact to his colleague, particularly when it would not only be his defence,
if prosecuted, but it would put a different complexion to his act in the eyes
of his colleague. But strong reliance is Placed on what this Witness stated in
the cross-examination viz., "I heard the word fight from the
accused", "I heard some other words from the accused but I could not
make out a sense out of these words".
Learned counsel for the accused contends that
this statement shows that the accused mentioned to Samuel that the shooting of
the deceased was in a fight. It is not possible to build upon 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 the same time
he is not willing to lie deliberately in the witness-box, for he clearly says
that he could not make out the sense of the words spoken along with the word
"fight". This vague statement of this witness, 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 Judge under s. 342 of the Code of Criminal Procedure supports Samuel's
version. The 639 following question was put to him by the learned Sessions
Judge :
Q.-It is alleged against you that thereafter
as aforesaid you went to Commander Samuel at about 4-45 P.M. and told him that,
something terrible had 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 at the 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 he shot the man as he had seduced his wife.
Learned counsel for the accused contends that
the question framed was rather involved and, therefore, Nanavati might not have
understood its implication. But it appears from the statement that, after the
question were answered, Nanavati read his answers and admitted that they were
correctly recorded. The answer is also consistent with what Samuel said in 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 a statement to Lobo. At
that time, Superintendent Korde and Inspector Mokashi were also present. On the
information given by him, Lobo directed Inspector Mokashi to take the accused
into custody and to take charges of the articles and to investigate the case.
640 Lobo says in his evidence that he
received a telephone call from Commander Samuel to the effect that he had
directed Commander Nanavati to surrender himself to him as he had stated that J
he had shot a, man. This evidence obviously cannot be used to corroborate what
Nanavati told Samuel, but it would only be a corroboration of the evidence of
Samuel that he telephoned to Lobo to that effect. It is not denied that the
accused set up the defence of accident for the first time in the Sessions
Court. This conduct of the accused from the time of the shooting of Ahuja to
the moment he surrendered himself to the police is inconsistent with the
defence that the deceased was shot by accident. Though the accused had many
opportunities to explain himself, he did not do so; and he 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-room of 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
situate in 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 there is a door on the southern
wall leading to the bath-room, on the eastern side of the door abutting the
wall there is a cupboard with a mirror thereon; in the bath-room, which is of
the dimensions 9 feet x 6 feet, there is a 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 of
the 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 the incident the corpse of Ahuja 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 any witness. 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 and the 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 around the
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
trickling down. The handle of the 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 the floor of the bed-room there 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 any surface. (See the evidence of
Rashmikant, P.W. 16) On the dead-body the following injuries were found :
(1) A punctured 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) A lacerated punctured wound in the web
between the ring finger and the little finger of the left hand 1/4" X
1/4" communicating with a punctured wound 1/4 X 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) A lacerated ellipsoid wound oblique in
the left parietal region with dimensions 1 1/3" X 1/4" X skull deep.
(4) A lacerated abrasion with carbonaceous
tatooing 1/4" X 1/6" at the distal end of the proximal
interphalangeal joint of the left index finger dorsal aspect.
That means at the first joint of the crease
of the index finger on its dorsal aspect, i.e., back aspect.
(5) A lacerated abrasion with carbonaceous
tatooing 1/4" X 1/6" at the joint level of the left middle finger
dorsal aspect.
(6) Vertical abrasion inside the 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 of the piece of the 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 chip fracture corresponding to
external injury No. 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
compartment upper and front part surrounding the laceration impregnated pieces
of fractured bone. There was extensive echymosis and contusion around the root
of the right lung in the diameter of 2" involving also the inner surface
of the upper lobe. There were extensive clots of blood around the aorta. The
left lung was markedly pale and showed a through and through wound in the lower
lobe beginning at the inner surface just above the root opening out in the
lacerated ground in the back region outer aspect at the level between 6th and
7th ribs left side not injuring the rib and injuring the space between the 6th
and 7th rib left side 2" outside the junction of the spine obliquely
downward and outward. Bullet was recovered from tissues behind the left
shoulder blade. The wound was lacerated in the whole tract and was Surrounded
by 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 external injury No. 3,
the doctor found on internal examination that the skull showed a haematoma
under the scalp, i.e., on the left parietal region ; the dimension was 2"
X 2". The skull cap showed a gutter fracture of the outer table and a
fracture of the dinner table. The brain showed sub-arachnoid haemorrhage over
the left parieto-occipital region accompanying the fracture of the vault of the
skull.
A description of the 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 revolver and 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 chamber is
released, it comes out on the left side. Six cartridges can be inserted in the
holes of the chamber and then the chamber is pressed to the revolver. After the
revolver is thus loaded, for the purpose of firing one has to pull the trigger
of the revolver; when the 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 to be pulled again and the 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. If the 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 the other, releasing of the hammer. Because of this double
action, the pull must be fairly strong. A pressure of about 20 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 from the said
revolver, two bullets were found in the bath-room, and the third 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, has been turn off. The third bullet is marked
as EX. F-3.
With this background let US now consider the
evidence to ascertain whether the shooting was intentional, as the prosecution
avers, or only 645 accidental, as the 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. Hence the only person who can speak to
the said incident is the accused Nanavati. The version of Nanavati, as given in
his evidence may be stated thus: He walked into Ahuja's bed-room, shutting the
door behind him. Ahuja was standing 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 will have you thrown out." The accused became angry,
but the packet containing the revolver down on a cabinet which was near him and
told him, "By God I am going to thrash you for this." The accused had
his hands up to fight the deceased, but the latter made a sudden grab towards
the packet containing the revolver. The accused grappled the revolver himself
and prevented the deceases from getting it. He then 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 the
groin. The accused pushed Ahuja again into the bath-room, trying at the same
time desperately to free his 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 hanging on to the hand of the 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 down to report to the police.
By this description the accused seeks to
raise the image that he and the deceased were face to face struggling for the
possession of the revolver, the accused trying to keep it and the deceased
trying to snatch it, the deceased catching hold of the wrist of the right hand
of the accused and twisting it, and the accused desperately trying to free his
hand from his grip;
and in the struggle two shots went off
accidentally-he does not know about the third shot-and hit the deceased and
caused his death.
But in the cross-examination he gave negative
answers to most of the relevant questions put to him to test 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) I had no idea where the shots went
because we were shuffling during the struggle in the tiny bath-room.
(3) I have no impression from where and how
the shots were fired.
(4) I do not know anything about the rebound
of shots or how the shots went off.
(5) I do not even know whether the spectacles
of the deceased fell off.
(6) I do not know 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) I do not give 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) I gave 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 and we 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 vague outline of the alleged
struggle between him and the deceased. Broadly looked at, the version given by
the accused appears to be highly improbable. Admittedly he bad entered the
bedroom of the deceased unceremoniously with a fully loaded revolver;
within half a minute he came out of the room
leaving Ahuja dead with bullet wounds. The story of his keeping the revolver on
the cabinet is very unnatural. Even if he had kept it there, how did Ahuja come
to know that it was a revolver for admittedly it was put in an envelope.
Assuming that Ahuja had suspected that it might be a revolver, how could he
have 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 do so, how did Nanavati
accidental pull the trigger three times and release it three times when already
Ahuja was holding his wrist and when he was jerking his hand to 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 it that 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 the court,
nor is there any evidence to indicate such "roughings". It is not
suggested 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 of blood on the clothes of the accused.
Another improbability in 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 either the chest injury or the head injury, for both of
them were serious ones. After the deceased received either the first or the
third injury there was no possibility of further struggling or pulling of the
trigger by reflex action. Dr. Jhala says that the injury on the head of the
victim 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 was inflicted, the deceased could have
still kept on struggling with the accused. Indeed, Nanavati says in his
evidence that at the 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 to indicate 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 with both intentional and accidental 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 fled with the other to the bath-room. The
situation of the spectacles near the commode is more consistent with
intentional shooting than with accidental shootings, for if there had been a
struggle it was more likely that the spectacles would have fallen off and
broken instead of 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 who made the inquiry, does not show any
indication of struggle or fight in that place. The version of the accused, therefore,
is brimming 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 him he 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
have been an embellishment on the part of Deepak. Assuming he said it, it does
not indicate and sentiment of affection or goodwill towards the deceased-
admittedly he had none towards him-but only an involuntary and habitual
expression.
It is argued that Nanavati is a good shot-
Nanda, D.W. 6, a Commodore in the Indian Navy, certifies that he is a good shot
in regard to both moving and stationary targets-and therefore if he had
intended to shoot Ahuja, 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 he was not shooting at an inanimate
target for practice but was shooting to commit murder;
and it also 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 as the 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 is a Government Criminologist. The Deputy Commissioner of Police,
Bombay, through Inspector Rangnekar sent to him the revolver, three empty
cartridge cases, three bullets and three live rounds for his inspection. He has
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 pounds is required and that for each shot
the trigger has to be pulled and for another shot to be fired it must be
released and pulled again. He also says that the charring around the wound
could occur with the weapon of the type we are now concerned within about 2 to
3 inches of the muzzle of the weapon and the blackening around the wound described
as carbonaceous tattooing could be caused from such a revolver up to about 6 to
8 inches from the muzzle. In the cross examination he says that the flattening
of the two damaged bullets, Exs. F-2 and F-2a, could have been caused by their
hitting a flat hard 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 have also been caused, according to him, by a
human bone of sufficient strength provided the bullet hits the bone tangently
and passes of without obstruction.
These answers, if accepted-we do not see any
reason why we should not accept them-prove that the bullets, Exs. F-2 and F-2a,
could have been damaged by their coming into contact with some hard substance
such as a bone He says in the cross-examination that one 'struggling' will not
cause three automatic firings and tha 651 even if the struggle continues he
would not expect three rounds to go off, but he 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 for the accused in support of his contention of accidental
firing. He argues that by unconscious reflex pull of the trigger three times by
the accuses three shots could have gone off the revolver. But the possibility
of three rounds going off by three separate reflexes of the finger of the
person holding the trigger is only a theoretical possibility, and that too only
on the assumption of a fairly long struggle. Such unconscious reflex pull of
the finger by the accused three times within a space of a few seconds during
the 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 when we 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 of competency from his tutors in London
duly endorsed by the covering letter from the Education Department, high
commissioner's office, and he is a Government Criminologist and has been doing
this work for the last 22 years; he says that he has also gained experience by
conducting experiments by 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 shooting thrice, a person Shooting will have to give a deep
pull to the trigger thrice and release it thrice. (3) A pressure of 28 pounds
is required to pull the trigger. (4) one "struggling" will not cause
three automatic firings. (5) If the struggle continues and if the person who
pulls the trigger co- operates by pulling the trigger three times, three shots
may go off. (6) The bullet may be damaged by hitting a hard surface or 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) the person holding the trigger Go- operates by pulling it thrice
by reflex action.
This evidence, therefore, establishes that
the bullets went off the revolver brought by the accused-indeed this is not
disputed and that in the course of the struggle of a few seconds as described
by the accused, it is not possible that the trigger could have been
accidentally pulled three times in quick succession so as to discharge three
bullets.
As regards the 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 11 to 14 pounds. we does not know the science of ballistics and he is
only a mechanic who repairs 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-action one. While major Burrard in his book on
Identification of Fires and Forensic Ballistics says that the normal trigger
pull in double-action revolvers is about 20 pounds, this witness reduces it to
11 to 14 pounds; while Major Brrard says in his book that in all competitions
no test other than a dead weight is accepted, this witness does not 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 the basis 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 be convenient to ascertain from the relevant text-books some of the
indications that will be found in the case of injuries caused by shooting.
The following passage from 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 Medicine
Pathology and Toxicology by Gonzales, 2nd Fdn., 1956:
"The powder grains may travel 18 to 24
inches or more depending on the length of barrel, calibre and type of 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 but it is not always possible
to recognize unburnt grains of powder even at 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 the
same author in an earlier book from which we have already quoted puts it at 18
inches. In the book "Recent Advances in 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, says that charring around 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 the statement formed in Glaister's book, namely, when the range reaches
about 6 inches there is usually an absence of burning although there will
probably be some evidence of bruising and of powder 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 the authorities show that there would not be
powder marks beyond the range of 12 to 18 inches.
He also ways that in the matter of tattooing,
there is no difference between that caused by smokeless powder used in the
cartridge in question, and black powder used in other bullets, though in the
case of the former there may be greater difficulty to find 655 out whether the
marks are present are not in a, wound.
Having regard to the aforesaid impressive
array of authorities on Medical Jurisprudence, we hold, agreeing with Dr.
Jhala, that carbonaceous tattooing would not be found beyond range of 18 inches
from the mouth of the muzzle of the weapon.
We also hold that charring around the wound
would occur when it is caused by a revoler like Ex. within about 2 or 3 inches
from the muzzle of the revolver.
The presence and nature of the abrasion
collar around the injury indicates the direction and also the velocity of the
bullet. Abrasion collar is formed by the gyration of the bullet caused by the
rifling of 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 collar will not be around the entire
wound(See the evidence of Dr. Jhala and Dr. Baliga).
As regards the injuries found on the dead
body, two doctors were examined, Dr. Jhala, P. W. 18, on the 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 the wounds found on the dead-body not only by his qualifications
and experience but also by 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 only on experience surgeon but abo has been taking 656 interest in
extra-surgical activities, social, political and educational. He says that he
has studied medical literature regarding bullet injuries and that he is
familiar with medico-legal aspect of wound including bullet wounds. He was a
Causality J. Medical officer in the K. E. M. Hospital in 1928. The had seen
bullet injuries both as Causality 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 of bullet injuries
prior to this occasion though I have treated and I am familiar with bullet
injuries. The last that I gave evidence in Medico-legal case in a murder case
was in 1949 or 1950 or there about. Prior to that I must have given evidence in
a medical-legal case in about 1939. I cannot off hand tell how many cases of
bullet injuries I have treated till now, must have been over a dozen. I have
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 and the head.
Out of all these 12 bullet injuries cases which I have treated up to now there
might be 4 or 5 which were bullet injuries on the head. Out of these 4 or 5
cases probably there were three cases in which there were injuries both 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 did not 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 injuries that the said injuries could have been caused in 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 case
to decide upon the cooperative qualification or merits of these two doctors of
their relative competency as surgeons, but we must have that so far as the
wounds on the legal-body of the deceased are concerned, Dr. Jhala, who has made
the post-mortem examination, is in a better position to help us to ascertain
whether shooting was by accident, or by intention than Dr. Baliga, who gave his
opinion on the basis of the post- mortem report.
Now we shall take injury No.1. This injury is
a punctured one of dimensions 1/4" x 1/4" chest cavity deep just
below and inside the inner end of the right collar bone with an abrasion collar
on the right side of the wound. The internal examination showed that the
bullet, after causing the punctured wound in the chest just below the inner end
of the right collar bone, struck the sternum and after striking it, it slightly
deflected in it course and came behind the shoulder bone. In the course of its
journey the bullet entered the chest, impacted the soft tissues of the lung the
aorta and the left lung, and ultimately damaged the left lung and got lodged
behind the seapula. Dr. Jhala describes the wound as ellipsoid and oblique and
says that the abrasion collar is missing on the left side. On the injury there
is neither charring nor carbonaceous tattooing. The prosecution version is that
this wound was caused by intentional shooting, while the defence suggestion is
that it was caused when accused and deceased were struggling for the 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 were us each othor's grip. Ho gives reasons 658 for his
opinion, namely, as there was no carbonaceous tattooing on the injury, it must
have been f caused by the revolver being fired from a distance ra of over 18
inches from the tip of the mouth of the muzzle. We have earlier noticed that,
on the basis of the authoritative text- books and the evidence, there would not
be carbonaceous tattooing if the target was beyond 18 inches from the mouth of
the muzzle. It is 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
when the deceased placed his left palm against the line of the bullet causing
carbonaceous tattooing on the said 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 an impact on the fingers, it would
get deflected, lose its direction and would not be able to cause later injury
No. 1 with abrasion collar. He further explains that an impact with a solid
substance like bones of fingers will make the bullet lose its gyratory movement
and thereafter it could not cause any abrasion collar to the wound. 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 the assailant were in 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 as seen in injury No. 1. Excepting this of this suggestion
possibility, he has not controverted the reasons given by Dr. Jhala why inch an
abrasion collar could not be caused if the bullet had hit the 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 through
the little and the ring finger, could not have retained sufficient velocity to
cause the abrasion 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
bullet could cause injury No. ], it could not have caused the internal damage
discovered in the post-mortem examination.
We have no hesitation, therefore, to accept
the well reasoned view of Dr. Jhala in preference to the possibility envisaged
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 third injury is a lacerated ellipsoid
wound oblique in the left parietal region with dimensions and skull deep. Dr.
Jhala in his evidence says that the skull had a gutter fracture of the outer
table and a fracture of the inner table and the brain showed subarachnoid
haemorrhage over the left parieto-oocipital region accompanying the fracture of
the vault of the skull. The injury was effect 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 was suggested to him that the said wound could have been
caused by a ricocheted bullet, he answered that though a ricocheted bullet
coming from the same line of direction could have caused the said injury, it
could not have caused the intracranial haemorrhage and also could not have
cause the fracture of the 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 case in 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 accompanied by haemorrhage in the skull
requires great force and a ricocheted bullet cannot cause such an injury.
He opinion that, though a ricocheted bullet
emanating from a powerful fire-arm from a close range can cause injury to a
heavy bone, it cannot be caused by revolver of the type Ex. B.
Another suggestion made to him is that the
bullet might have hit the glass pane of the window in the bathroom first and
then ricocheting causing the injury on the head. Dr. Jhala in his evidence says
that if the bullet had hit glass pane ,first ,it would have caused a hole and
fallen on the other side of the window, for ricocheting is not possible in the
case of a bullet directly hitting 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 the
bath-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 bullets must have been fired from the revolver Ex. B, which is nobody's
case.
The evidence, of Dr. Jhala is corroborated by
the evidence of the ballistics expert Bhanagay, 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, it may not enter the body and that even if it enters the body,
the penetration will be shallow and the injury caused thereby will be much less
as compared 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 of the gutter
fracture caused in the present case the wound is likely to be narrower at the
entry than at the exit. He further says that assuming that the gutter fracture
wound was caused by a ricocheted bullet and assuming further that there was
enough force left after rebound, a ricocheted bullet could cause a fracture of
even the inner table and give rise to intra-cranial haemorrhage. He asserts
that a bullet that can cause a gutter fracture of the outer table is capable of
fracturing the inner table also. In short, he contradicts every statement of
Dr.
Jhala; to quote his own words, "I do not
agree that injury No. 3, i.e., the gutter fracture, cannot be inflicted from
front to back for the reason that the slope of the gutter fracture was behind
forward direction 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 have not 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 also contradicts the opinion of Dr. Jhala that injury
No. 3 could not be caused in a struggle between the victim and the assailant.
Dr. Baliga has been cross- examined at great length. It is elicited from him
that he is not a ballistics expert and that his experience in the matter of
direction of bullet injuries is comparatively less than his experience in other
fields. His opinion that the gutter fracture injury could be and was more
likely to be caused from an injury glancing front backwards is based upon a
comparison of the photograph of the skull shown to him with 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 the rear 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 Judges of 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 the skull and not a part of the gutter. This
observation has not 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 puts emphasis 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 the bullet adjusts itself in the new
direction 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 agree on the admitted hypothesis that at the initial 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 the gutter wound would indicate the extensive nature
of the damage. 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 which dissociates from the rest of the
skull is carried in the direction in which the bullet flies but says that he
was not furnished with any information in that regard when he gave his opinion.
Coming to the question of the ricocheting, he
says that a ricocheting bullet can produce depressed fracture of the skull. But
when asked whether in his experience he has come across any bullet hitting a
hard object like a wall and rebounding and causing a fracture of a hard bone or
whether he has any text-book to support his statement, he says that he cannot
quote any instance nor 664 an authority. But he says that it is so mentioned in
several books. Then he gives curious definitions of the expressions "likely
to cause death", "necessarily fatal " etc. He would go to the
extent of saying that in the case of injury No. 3, the chance of recovery is up
to 80 per cent.; but finally he modifies that statement by saying that he made
the statement on the assumption that the haemorrhage in the subarachnoid region
is localised, but if the haemorrhage is extensive his answer does not hold
good. Though he asserts that at a range of about 12 inches the wound does not
show 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 to his opinion; but finally he admits that he
is not a ballistics 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 it was 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 his reasons 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 the gutter wound found in the skull. Ex. Z
relied upon by him does not support him. His theory of a ricocheted bullet
hitting the skull is highly imaginary and cannot be sustained on the material
available to us: firstly, there is no mark found in the bath-room wall or
elsewhere indicating that the bullet struck a hard substance before ricocheting
and hitting the skull, and secondly, it does not appear to be likely that such
a ricocheted 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., a
projection which exactly fits in the denture found in the skull and, therefore,
the projection could have been caused only by the bullet coming into contact
with some hard substance before it hit the head of the deceased. This
suggestion was not made to any of the experts. It is not possible for us to
speculate as to the manner in which the 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 of the 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 the said 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 the revolver. He further says that all the three injuries
could have been caused by one bullet, for, as the postmortem discloses, the
three injuries are in a straight line and therefore it can clearly be inferred
that 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
the palmar 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, there should have
been more than three bullets fired, which is not the case of either the
prosecution or the 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, along with
the others, indicate the probability of a struggle between the victim and the
assailant over the weapon; but he does not give any reasons for his opinion. He
asserts that one 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 it
cannot do so without meeting with 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 pointed out that the head injury was caused from the
back, and we do not see any scope for one bullet hitting the fingers and
thereafter causing the head injury. If the two theories, namely, that either
injury No. 1 or injury No. 3 could have been caused by the same bullets that
might have caused injury No. 2 and injuries Nos. 4 and 5 were to be 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 bullets emanating 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 and the injury in the web between the little
and the ring finger, but not taking into account the injury on the palmar
aspect would be in a straight line. The witness admits that there can be a
deflection even against a soft tissue, but adds that the soft tissue being not
of much thickness between the said two fingers, the amount of deflection is
negligible.
But he concludes by saying that he is not
saying this as an expert in ballistics. If so, the bullet could have deflected
after striking the web between the little and the ring finger. We, therefore,
accept the evidence of 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, a vertical abrasion in the
right shoulder blade of dimensions 3"x1" just outside the spine, and
it is said that the injury must have been caused when the accused pushed the
deceased towards the door of the bath room. Nanavati in his evidence says that
he "banged" him towards the door of the 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 him again into the bath-room, this injury might
have been caused by his back having come into contact with the frame of the
door. It is suggested to Dr. Jhala that injury No. 6 could be caused by the
man's back brushing against a hard substance like the edge of the door, and he
admits that it could be so. But the suggestion of the prosecution case 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 edge of the
commode or the bath-tub or the edge of the door of the bath- room 668 which
opens inside the bath-room to the left of the bath-tub. Shelat, J., says in his
judgment:
"If the abrasion was caused when the
deceased was said to have been banged against the bath-room door or its frame,
it would seem that the injury would be more likely to be caused, as the
deceased would be in a standing position, on the shoulder blade and not inside
the 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 definitely how this injury was caused, but it could have been caused when
the deceased fell down in the bath-room.
The injuries found on the dead-body of Ahuja
are certainly consistent with the accused intentionally shooting him after
entering the bed- room of the 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 her illicit intimacy with the deceased. It was natural
that 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 and in about a few
seconds thereafter came out with the revolver in his hand.
The deceased was found dead in his bath-room
with bullet injuries on his body. It is not disputed that the bullets that
caused injuries to Ahuja emanated from the revolver that was in the hand of the
accused. After the shooting, till his 669 trial in the Sessions Court, he did
not tell anybody that he shot the deceased by accident.
Indeed, he confessed his guilt to the
Chowkidar Puransingh and practically admitted the same to his colleague Samuel.
His description of the struggle in the bath-room is highly artificial and is
devoid of all necessary particulars. The injuries found on the body of the
deceased are consistent with the intentional shooting and the main injuries are
wholly inconsistent with accidental shooting when the victim and the assailant
were in 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 proved beyond any reasonable
doubt that the accused has intentionally shot the deceased and killed him.
In this view it is not necessary to consider
the question whether the accused had discharged the burden laid on him under s.
80 of the Indian Penal Code, especially as learned 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 evidence adduced in this case, no reasonable body of persons could have
come to the conclusion which the jury reached in this case.
For that reason also the verdict of the 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 by
sudden and grave provocation and, therefore, the offence would fall under
Exception 1 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 the death 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 human being by
another. Under this exception, culpable homicide is not murder if the following
conditions are complied with : (1) The deceased must have given provocation to
the accused. (2) The provocation must be grave. (3) The provocation must be
sudden.
(4) The offender, by reason of the 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
the power of self-control. (6) The offender must have caused the death of the
person who gave the provocation or that of any other person by mistake or
accident.
The first question raised is 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, under different circumstances it has to be considered
from the standpoint of the person who conveys it rather than from the
standpoint of the person who gives it. He further contends that even if the
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 provocation
given 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 the provocation it is not the mind of
the person who provokes that matters but that of the person provoked that is
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 confession of adultery by his wife in the manner in
which the accused did. In Mancini v. Director of Public Prosecutions (1),
Viscount Simon, L. C., states the scope of the doctrine of provocation thus:
"It is not all provocation that will
reduce the crime of murder to manslaughter.
Provocation, to have that result, must be
such as temporarily deprives the person provoked of the power of self-control
as the result of which he commits the unlawful act which causes death.........
The test to be applied is that of the effect of the provocation on a reasonable
man, as was laid down by the Court of 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 a very different thing from making use of a deadly instrument
like a 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 Simon again in Holmes v. Director of Public
Prosecutions elaborates further on this theme. There, the appellant had
entertained some suspicions of his wife's conduct with regard to other men in the
village. On a Saturday night there was a quarrel between them when she said,
"Well, if it will ease your mind, I have been untrue to you", and she
went on, "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 to see her lie there and suffer, he just put both hands round her neck
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 :
"The whole doctrine relating to
provocation depends on the fact that it causes, or may cause, a sudden and
temporary loss of self-control, whereby malice, which is the formation of an
intention to kill or to inflict grievous bodily harm, is negatived.
Consequently, where the provocation inspires an actual intention to kill (such
as Holmes admitted in the present case), or to 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 (the accused) had the time
to say :
`Whatever I have suffered, whatever I have
endured, I know that Thou shall not kill.' That is what matters.
Similarly,.............circumstances which
induce a desire for revenge, or a sudden passion of anger, are not enough.
Indeed, circumstances which induce a desire for revenge are inconsistent with
provocation, since the conscious formulation of a desire for revenge means that
the person has had time to think, to reflect, and that would negative a sudden
temporary loss of self- control which is of the essence of provocation.
Provocation being,,.............as I have defined it, there are two things, in
considering it, to which the law attaches great importance. The first of them
is, whether there was what is sometimes called time for cooling, that is, for
passion to cool and for reason to regain dominion over the
mind................Secondly in considering whether provocation has or has not
been made out, you must consider the retaliation in provocation-that is to say,
whether the mode of resentment bears some proper and reasonable relationship to
the sort of provocation that has been given." A passage from the address
of Baron Parke to the jury in R. 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 there should be that provocation; and secondly, that the fatal blow
should be clearly traced to the influence of passion arising from that
provocation." The passages extracted above lay down the following
principles: (1) Except in circumstances of most extreme 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 loss of
self-control; and it must be 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, before there was time for passion
to cool and for reason to regain dominion over the mind. (4) The fatal blow
should be clearly traced to the influence of passion arising from the provocation.
On the other hand, in India, the first
principle has never been followed. That principle has had its origin in the
English doctrine that mere words and gestures would not be in point of law
sufficient to reduce murder to manslaughter.
But the authors of the Indian Penal Code did
not accept the distinction. They observed :
"It is an indisputable fact, that gross
insults by word or gesture have as great tendency to move many persons to
violent passion as dangerous or painful bodily injuries ; 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
more than a wound is anything but 675 a proof that he is a man of peculiarly
bad heart." Indian courts have not maintained the distinction between
words and acts in the application of the doctrine of provocation in a given
case. 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 act of provocation and
the commission of the offence. In Empress v. Khogayi, a division bench of the
Madras High Court held, 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 is that 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 at the time of the 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: The accused saw
the deceased when she had cohabitation with his bitter enemy; that night he had
no meals; next morning he went to the ryots to get his wages from them, and at
that time he saw his wife eating food along with her paramour; he killed the
paramour with a bill-hook. The learned 676 Judges held that the accused had
sufficient provocation to bring 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 this subsequent conduct as he could not fail to
connect it, with that act, it would be conduct of a character highly
exasperating to him, implying as it must, that all concealment of their
criminal relations and all regard for his feelings were abandoned and that they
purposed continuing their course of misconduct in his house. This, we think,
amounted to provocation, grave enough and sudden enough to deprive him of his
self- control, and reduced the offence from murder to culpable homicide not
amounting to murder." The case illustrates that the state of mind of the
accused, having regard 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 openly in the face of the
husband that she would persist in such adultery and also abused the husband for
remonstrating against such conduct, the case was covered by the 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. 300 of the Indian Penal
Code. 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 the deceased 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 struck her 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 exception to s. 300 of the Indian
Penal Code. So too, where a woman was leading a notoriously immoral life, and
on 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 said exception.
The following observations of the 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
immediately before the fatal blow was struck. We must take into consideration
the previous conduct of the 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 and
the 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 deceased to return to the cot, but after the
deceased fell asleep, he stabbed him to death. The learned Judges held :
"When Budhu (the deceased) came into
intimate contact with the accused by lying beside him on the charpai 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 the provocation would be both grave and
sudden." The Allahabad High Court in a recent decision, viz., Babu Lal v.
State applied the exception to a case where the husband who saw his wife in a
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 that he had
suspected this illicit intimacy on an earlier occasion also will not alter the
nature of the provocation and make it any the less sudden." All the said
four decisions dealt with a case of a husband killing his 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 application of the doctrine of "grave and sudden" provocation ?
No abstract standard of reasonableness can be laid down. What a reasonable man
will do in certain circumstances depends upon the customs, manners, way of
life, traditional values etc.; in short, the cultural, social and emotional
background of the society to which an accused belongs. In our vast country
there are social groups ranging from the lowest to the highest state of
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
the relevant circumstances. It is not necessary in this case to ascertain
whether a reasonable man 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 stated thus : (1) The test of "grave 680 and sudden"
provocation is whether a reasonable man, belonging to the same class of society
as the accused, placed in the situation in which 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
accused so as to bring his act within the first Exception to s. 300 of the
Indian Penal Code. (3) The mental background created by the previous act of the
victim may be taken into consideration 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 the facts of this case. When Sylvia confessed to her husband 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 he was only thinking of the future of his wife and children and also of
asking for an explanation from Ahuja for his conduct.
This attitude of the accused clearly
indicates that he had not only regained his self-control, but on the other
hand, was planning for the future. Then he drove his 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, and therefore there
was sufficient time for him to 681 regain his self-control, even if he had not
regained it earlier. On the other hand, his conduct clearly shows that the
murder was a deliberate and calculated one. Even if any conversation took place
between the accused and the deceased in the manner described 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 abusive reply could not conceivably be a provocation for the 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, and there are absolutely no
grounds for interference. The appeal stands dismissed.
Appeal dismissed.
Back
