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PETITIONER: K. M. NANAVATI

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 24/11/1961

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAS, S.K. DAYAL, RAGHUBAR

CITATION:  1962 AIR  605            1962 SCR  Supl. (1) 567  CITATOR INFO :  R          1964 SC1563  (6)  F          1974 SC1570  (19)  RF         1976 SC 966  (32)  F          1983 SC 855  (16)  D          1987 SC 852  (9)  R          1990 SC1459  (24)

ACT:      Jury  Trial-Charge-Misdirection-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

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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 misdirections  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 misdirections  in the charge, that there were no misdirections 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

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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,  misdirections 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  misdirections  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

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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   misdirections  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

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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.

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JUDGMENT:      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 misdirections 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.

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    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

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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 misdirections in the charge made by  the Sessions  Judge. (3)  I here  were no misdirections at  all in  the charge  made by  the Sessions Judge;  and indeed his charge was fair to the 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

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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  misdirections in  the  charge  of  the jury. So too, in the case of a verdict of "guilty" by the  jury, the High Court, if it holds that the verdict is  unreasonable, remits the matter to the Sessions Judge,  who acquits  the accused, and the State, in  an appeal  against that  acquittal, may question the  correctness of the said acquittal on the  ground  that  the  charge  to  the  jury  was vitiated by  misdirections. 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 misdirections 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

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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.

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         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

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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

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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

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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

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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 misdirections 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 misdirections;  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

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the opinion  that the verdict is erroneous because of the  misdirections in  the charge;  even so, it shall hold  that the  verdict of  the jury is good and reject the reference thereafter, the Judge his to accept  the verdict and acquit the accused; the prosecution then will have 588 to prefer  an appeal  under s.  417 of the Code on the ground  that the  verdict was  induced by  the misdirections in  the charge.  This could not have been the  intention of  the Legislature.  Take the converse case.  On similar  facts, the jury brings in a  verdict of guilty"; the Judge disagrees with the jury  and makes a reference to the High Court; even though  it finds  misdirections in the charge to 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 misdirections or  non-directions. How  can a Judge give any  weight to a verdict if it is induced and vitiated by  grave misdirections  in the  charge ? That apart,  the High Court has to give due weight to 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 misdirections the charge, how. can the High Court ignore them in giving due weight to his 589 opinion ?  What is  more, the  jurisdiction of the High Court is couched in very wide terms in sub-s. (3) 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

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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      misdirections 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 misdirections 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  misdirections.  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

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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 misdirections  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 misdirections and non-directions. Das, J., observed:           "Where, however,  there is misdirection,      the principle  embodied in s. 537 would apply      and if  the verdict is erroneous owing to the      misdirection, it  can have  no  weight  on  a      reference under s. 307 as on an appeal. It is  not necessary  to multiply  decisions.  The

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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  thereunder. (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 misdirections 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 misdirections, 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 misdirections in  the  charge  to  the  jury.  Misdirections  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:

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         "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 misdirections  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 misdirections and attempted to demonstrate that they were either no misdirections at all,  or even if they were, they did not in any way affect the correctness of the verdict.      We shall  now take  the first  and the  third misdirections 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,

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    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

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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.

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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

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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

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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

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    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

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    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

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    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,

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    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

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    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

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    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

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    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

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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

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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

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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

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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

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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 misdirections 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 misdirections 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)

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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

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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

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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

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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

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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

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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

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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

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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

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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  before  hand 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

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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

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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 tho 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

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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 tho 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

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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

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    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 inner 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  tho 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

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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

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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

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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

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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

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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-

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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

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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  tho 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).

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    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

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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   tho  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  tho aorta and tho 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 tho  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

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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

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the   said injury,  it could  not have  caused the intracranial haemorrhage  and also  could not have cause the  fracture of  tho  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

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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

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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

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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,

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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

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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

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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

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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

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    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

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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  in      juries ;  nor  does  it  appear  to  us  that      passion excited by insult is entitled to less      indulgence than  passion excited  by pain. On      the contrary,  the circumstance  that  a  man      resents  an  insult  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

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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,

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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."

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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

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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.