(I) S.C.R. SUPREME COURT RF.PORTS 567
to draw an analogy between the requirements or
the senior research staff and the junior staff with
wl:wse chims the tribunal was dealing. TherPfore,
we are not satisfied that there is any substance in
the grievance made by the workmen against the
a.ward passed by the tribunal in respect of house
allowance. The result
is Civil Appeal No.
460 of
1960 fails and is dismissed.
There would be no order as to costs in both
the appeals.
Appeal No. 459 allowed.
Appeal No.
460 dismissed.
K. M. NANAVATI
v.
STATE OF MAHARASHTRA
(S. K. DAS, K. SmrnA RAO and
RAGHUBAR DAYAL, JJ.)
. Jury 'l'rial-Oharge-Misdirection-Reference by Judge,
if and when competent-Plea of General Exception-Burden
of proof-"Grave anrl sudden provocation"-Test-Power of
High Oonrt in reference-Gode of Criminal Procednre(Act, 5
of 1898), ss. 307, 410, 417, 418(1), 423(2), 297, 155 (1), 162-
Imlian Penal Gode, 18n0 (Act 45 of 1860), ss. 302, 300, Ex
ception 1·-lndian Evidence Act, 1872 (l•o/ 1872), s. 105.
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 prosecu
tion case in substance was that on the day of occurrence his
wife Sylvia confrssed to him of her illicit intimacy with Ahuja
and the accused went to his ship, took from its stores a revol
ver and cartridges on a false pretext, loaded the same, went
to Abuja's flat, entered his bed room
and shot him dead.
The defence, inter alia, was that as
hi• 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 thrm
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
11 fat.e pretext intending to shoot himself. Thc;n he drove
1~61
Thi man•z1rn1111 •f
Tockl•i ExJletirnenJai
Station rtf111sent1d
b.J the Indian Tea
Assoeitition
v.
The Workmen
6aj1ntragadkor J.
1~1
November 24.
1161
Ji:. M. /fanm-ati
v.
1'ht .St(lta of
Mahrtraslitro
568 SUPREME COURT HEPOR'.l'S [l!J62] SUPP. -
his car to Abuja's office and not finding him ther., drove to
his flat. After an altercation a struggle ensued betw<en the
two
and in course of that
struggle two shots went off acci·
dentally and hit Ahuja. Evidence, oral and documentary,
was adduced in the case including thr<e letters written by
Sylvia to Ahuja. Evidence was also given of an extra-judicial
confession made by the accused to pro~curion witness J2 who
depoS<d that the accused when leaving the place of occurr·
encc 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 Sta1ion, what the accused had told him.
This statement was not recorded
by P. W.
13 and was denird
by him in his cross-examination. In his statement to the
investigation officcr it was :ilso not recorded. The jury return•
ed 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
,·errlict on the evidence and referred the matter to the High
Court under
s.
307 of th~ Code of Criminal Procedure. The
t"o Judgrs of the Dil'ision 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 misdirrrtions in the Sessions Judge's charge to the jury
and on a revie\' of the C\·idcnce came to the conclusion that
the accused was guilty of murder and the verdict of the jury
was pen·erse. 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 lea\'e it was contended on behalf of the appellant
that under
s.
307 of the Code of Criminal Procedure it was in·
cumbcnt on the High Court to decide the competency of the
reference on a prr11sal 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 bys. 307(3) of
the
Code to set aside the ,·erdict of the jurr on the ground that
there were misdirections in the charge, _that there were no
misdirections in the charge nor was the verdict perverse antl
that since there was gra\·c 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 cons
trued, s. 307 of the Code of Criminal Procedure was meant to
confer \vidcr po\·crs of interference on the High Court than.
II
(1) S.C.R. SUPREME COURT REPORTS 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 rode, s. 423(2) con
ferring no powers Lut only saving the limitation under
s. 418(1), namely,. that an appeal against an order of conviction
or an acquittal in a jury trial must be confined to matters
of law.
The words "for the ends of justice" in s. 307(1) of
the Code, which indicate that the Judge disag1eeing with the
verdict, must be of the opinion that the verdict was one
which no reasonable body of men could rea< h on the
evidence, coupled with the ~·ords 'clearly of the opinion'
ga,·e the Judge a wide and comprehensive dhcretion to suit
different situations. Where. therefore, the Judge disagreed
with the ,·erdict and recorded the grounds of his opinion,
the reference was conipetent, irrespective of the que!)tion
whether the Judge was right in so differring 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 wi1h the
necessary conditions, the High Cou1 t should reject the
reference without going into the evidence if the reasons
given in the order
of reference did not sustain
ths view
expressed by the Judge.
Section 307(3) of the Code by empowering the High
Court either to ·acquit or convict the accused after consider
ing the entire evidence, giving due \'eight to the opinions of
the Sessions Judge and the jury, virtually conferred the func
tions both of the ju'ry and the Judge on it.
\'\!here, therefore, misdirections vi6a:ted 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 referc:nce,
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. 8tate of Bombay, · [1954]
S. C. R. 435, Ratan Ra; v. State of Bihar, [1957] S. C. R.
273 SU1Jhi Mohan Delmalll v. State of West Bengal [1958]
S. C.R. 960, and Empnor v. Ramdllar 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
IHI
K. M. Nanavafi
Y,
Tiu State of
kl aharaslztra
1961
K. M. Nana""i
v.
Tiu Stolt of
Mel.ara1htra
570 SUPREME COURT REPORTS [1962) SUPP.
tneding to mislead them. Even an omission to mention matters
which arc essentia1 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 ca5e, every n1isdircction 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.
Mustalc Hussein v. Stak of Bombay [1953] S. C.R. 809
and Smt. Nagindra Bala Mitra v. Sunil Chandra Roy, [1960]
3 S. C. R. !,~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 plead< anv of the General Exceptions mentioned
in the Indian Penal Code. The pre<umption 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, nc\'cr shifts. Even if
the accused fails to prove the Exception the prosecurion has
to discharge its own burden and the evidence adduced,
although insufficient
to establish the Exception, may be sufl'icienl to negative one or more of the ingredients of the
offence.
Woolmington v. Director of Pubik Pr08eC1tliona, L. R.
(I 935) A. C. 462, considered.
Attygalle v. Emptror, A. I. R. 1936 P. C. 16Q, di<ting-
11ished.
State nf Madr1UJ v. A. Vaidyanatha Iyer, [1958] S. C.R.
580 and C. 8. D. S1oamy v. Statc, [1960) l S. C.R. 461, refer
red to.
Consequently, where, as 1n the in91ant ca<e, the accused
retied on the Exception embodied in s. 80 of the Indian Penal
Code and the Sessions Judge omiued to point out to the jury
the distinction between the burden that lay
on the prosecu.
tion
and that on the accused and explain tl1e 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 ca•e these were
serious misdirec1ions that vitiated the verdict
of the jury.
Extra-judicial confession made by the accused
is a direct
piece
of
C\·idence and the s1rin.~ent rule of approach to circum.
stantial evidence has no application
to it.
Since in the inst
ant case, the Sessions Judge in summarising the circumstances
mixed up the confession "ith the circumstances while direct.
ing the jury to apply the rule ()f circumstantial cviden~e aq<I
..
(1) S.C.R. SUPREME COURT REPORTS 571
it might well be that the jury applied that rule to it, his charge
was vitiated by the grave misdirection
that
must affect that
correctness of the jury's verdict. ·
The question whether the omission to place certain evi
dence before the jury amounts to a misdirection has to be deci
ded 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 th~ jury, to sum up the evi
dence 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 neg-atived
the c'8e made by the husband and the wife in their deposi
tion 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] l All. E. R. 187 and R. v. A/field,
[1961] 3 All. E. R. 243, held inapplicable.
The commencement of investigation under s. 155 (l} of
the Code of Criminal Procedure in a particular case, which is
a question of fact, has to be decided on the facts of the case,
irrespective
of any irregularity committed by the
Police Officer
in recording the first information report under
s. 154 of the C<>de.
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
offi
cer where such statement was not .used to contradict his evid
ence. The proviso al!O had no •'·application to.a oral state
ment 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 l 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 reason
able person belonging to the same class of society as the accus
ed, 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
· circumstanccss cause grave and
audden provocation so as to attract that Exception. The m'en
\al background created by any previous act of t4e vic!inl can
1981
r. M. Nonavati
••
The Stale •f
Maharashtra
1961
1r. ft!. T\'anovati
v.
The St1..le of
ftlaharashlr11 ·
5i2 SUPRB.'IIE COURT REPORTS [HJ62J SUPl'.
also be taken into consid_eration in judging whether the subse ...
quent act could_·, cause grave and sudden provocation, but, the
fatal blow should be clearly traced to the influence of the pas·
sion 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. (19.;2)
A. C. I, llolmes v. Director of Public Prosecu!ions, L. R. (1916)
--· · A.C. 588 Duffy's case, [!919]! All. E. R. 932 and R. v. Thomas,
"(1837) 7 C. & P. 817, considered.
i
I
Empress v. Khogayi, (1879) I. L. R. 2 Mad. 122, Boya;
JJiunigadu v. The Qtteen, ( 1881) I. L. R. 3 Mad. 33, In re
· JJuru7ian. I. L. R. ( 19j7) Mad. 805, In re 0. Narayan, A.I.R·
1958 A. P. 235, Jan .lluhammad. v. Emperor, I. L. R. (1929)
. Lah. 861, Emperor v. Balk<., I. .L. R .. (1938) All .739 and
. Babu Lal v. State; A. I. R. 1960 All. 223, referred to.
___ Setnble: , \Vh· ther a reasonable person in the circumst
ances of a_ particular case committed the offence
-und
r-grave
and sudden provocation ii a ques
tion
of fact for the jury to decide.
. _
Holmes v. Director of Public Prosecution, L. R. (1916)
A. C. 588, conddered. · · ·
. Cm~nNAL APPELLATE JURISDICTION : Criminal
Appeal No. 195 of 1960.
Appeal by special leave from the judgment
and order dated l\Iarch 11, 1960, of tho Bombay
High Court in Criminal Jury Reference No. 159 of
· 1959.
G. 8. Pathc1l.:, 8. G. Patu·nrdhan, R11jini Patel,
.
Po.ru.1
A. J,Jehta, J. B. Dadachanji, Ravinder Xarain
and a. a. JJiathur, for.the appellant .
. : ·. J,J. 0. Setalvad, Attorney-General of India,
· · · 0; JJJ. Trivedi, V. H. Gitmeshte, B. R. G. K . .Achar
and R. H. Dhebar, for the respondent.
HJ61. November 24. The Judgement of the
. Court was delivered by . . .
Subba R•• J. · SunnA RAO, J.-This appeal by special leave
arises
out of the judgment of the Born bay High
Court sentencing
Nanavati the appellant, to life
imprisonment for
the murder of
Prem Bhactwandas ·
Ahuja, a businessman of Bombay.
0
(1) S.C.R. SUPREME COURT REPO.H.TS 573
. This appeal presents the commonplace prob
lem 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
publi
city it received and the important constitutional
point
it had given rise to at the time of its
ad
mission.
The appellant was charged under s. :102 a~ well
as under s. 3114, Part I, of the Indian Penal Code
and was tried by the Sessions Judge, Greatff Bom
bay, with the aid of special jury. The jury brought
in a verdict of "not guilty'' by 8 : l 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
sub
mitted the case under s. 307 of the Code of Crimi
nal Procedure to the Bombay High Court after
recording the grounds for his opinion. The said
reference was
beard by a division bench of the said
High
Court consisting of Shelat and Naik, JJ. The
two learned
.JudgeR 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
uffcnce of
murder, alternatively, he expressed the view that
the verdict of the jury was_ perverse, unreasonable
and, in
any
evt·nt, contrary to the weight of evi
dence. Naik, J., preferred to base hi> conclusion
on the alternative ground, namely,
that no
reason
able body of persons could have come to the con
clusion arrived at by the jury. Both the learned
Judges agr'oled that no case had been made out to
reduce the offence from murder to culpable
1961
K. Af. Nanat1a1i
v.
The State of
MaharaJhl'a
Subha Boo J,
I
I
f
I
I
191.Jl
J(. lf
.. -.litanava'i
v.
Tht Staie of
!.-laharaahtra -
Subba llao-_ ·'.
homicide not amounting to murder. The present
appeal has been preferred against the said convic-
tion and sentence. -
The case of the prosecution may be stated
thus : This accused, at the time of the alleged mur
der, was second in command of the Indian Naval
Ship "l\Iysore". He married Sylvia in 1949 in the
registry office at Portsmouth, England. They have
three children by the marriage, a boy aged 9! years
a girl ageq 5! 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.wifo and children
in
Bombay. Gradually, friendship
devCloped bet
ween 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
a. 302 of the Indian Penal Code.
The defence version, as disclosed in the state
ment made by the accused before the Sessions Court
under s. 342 of the Code of Criminal Procedure and
(1) S.C.R. SUPREME COUR.T REPORTS 575
his deposition in the said Court, may Le Lriefly
stated: The accused was away with his ship from
April
6, 1959, to April 18, 1959. Immediately
after
returning to Born bay, he and his wifo we!lt to
Ahmednagar for about three days in th<-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 hmch, when he questioned her about her
fideli
ty, she shook her head to indicate that she was un
faithful 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 Abuja's house, as he
might. shoot him. Thereafter, he drove his wifo,
two of his children and a neighbour's child in his
car to a cinema, dropped them there and promised
to come
and pick them up at 6
p,111. when the show
ended. He. then drove his car
to his ship,
as he
wanted to get medicine for his sick dog, he represent
ed to the authorities in the ehip, that he wanted to
draw a revolver and six rounds from the stores of
the ship as he was going to drive alone to Ahmed
na.ga.r 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 Abuja's office, ~d not finding him there, he drove to Abuja's
flat, rang the door bell, and, when it was opened
by a servant, walked to Abuja's bed-room, went
into the bed-room and shut the door behind him.
He also carried with him the envelope containing
1961
K. M. JVa11a;,'ali
v.
Tht .~tde of
Alahar11shtra
Suhba nao J,
Jl/51
K. M. }(anorJali
••
TN .)tatt of
II a.\atashtrcs
Subbo Ra• J,
576 SUPREME COURT REPORTS [1962) SUPP.
the revolver. The acoueed saw the dcreased inside
the hen· room, c1\!lcri him a filthv swine and askerl
him whether he would marry Sylvia and look after
t.he 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 nearbv, and threatened to
thrash the dece'lscd. The de
0
ceased m 1de 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
detailR, the c&se 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 :
(I) Under s. 307 of the Code of Criminal Procedure,
the High Court should decide whether a reference
mado by a Sessions Judge was competent only en
a perusal of the order of reference made to it and
it had no jurisdiction to consider the eviclon<'.e and
come to a conclusion whether the rE-ference was
eompP.tent or not. (2) Under s. 307(:1) 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 thn charge
me.de by the Sessions Judge. (3) l 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 tht> jury
was not perverse .nd it was such that a reasonable
body
of persons could
arrivP-at it on thP evidence
placed before them. (
5) In any view, the accused
shot
at the decased under grave and sudden
pro
vocation, and therefore even if he had committed
(1) S.C.R. SUPREME COURT REPORTS 5i7
an offence, it would not be murder but only culp
able homicidti not amounting to mmder.
Mr. Pathak clab<>ratea his point under the
first heading thus : UnJer s. 307 of the Code of
Criminal Procedure, the High Court deals with the
reference in two stages. In the first stage, the
High Court has to consider, on the basis of the
referring order, whether a reasonable body of
persons could not have reached the conclusion
arrived
at by the jury; and, if it is of the view
that such a body could have come to that opinion
the reference shall be rejected as incompetent.
At
this stage, the High
Court cannot travel beyond
tbe c1rdcr of reference, but shall confine itself only
to the reasons given by the Sessions· Judge.
If, on a consideration of the said reasons,
it fo 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 ascer
tain whPther 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 verdirt
of "not guilty", the High Court acquits the accused,
and in the case "here the verdict is one of "guilty"
it convicts the accused. In case the High Court
holds that the verdict of "not guilty", is unreason
able, it refers back the case to the Sessions Judge,
who convicts
the accused; thereafter the
a~cused
will have a right of appral wherein he can attack
the validity
of his conviction on the ground that
there
were misdirectionE in the charge of the jury.
So too, in the case of a verdict of "guilt)" 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 Stata, in
an <tppeal against that acquittal, may question the
eorrectness 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 pro
positions, namely, ( i) the High Court rejects the
K. M. /{ anaooti
v.
T1.e State of
Maharas%tra
Subba Rao J.
I
I
1961
K. Jl.1. Nanrtoati
v.
Tiu Sta11 of
Alaharashtra
Suhbll P.,,10 J.
578 SITPRE~m COURT REPORTS_(1962J SUPP.
reference as incompetent, if on the face of the
reference the verdfot of the j ir:v does not appear to
be uureason11.ble, (ii) if_the reference is competeut,
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 construc
tion of the relevant provisions of the Code of
Criminal Procedure. The said Code contains twu
fascicule of sections dealing_ with two \different
8itirntions. Under s. 268 of the Code, - "Alltrials
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 conduded, the_ Court shall proceed t0
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 :ms among other imposes a duty on a judge
to decide all questions of law arising in the course
of the trial, ancl 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 retnrn tho verdict
which under such view ought, according to the
directions of the Judge, to be returned." After the
charge to the jury, the jury retire to consirler 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.
~
{!) S.C.R. SUPRE. E COURT REPORTS 579
Where the Judge does not think it necee8ary to
disagree with the verdict of tho jurors or of the
majority
of them, he
give8 jm1gmont accordingly.
If the accused is acquitted, the Judge shall reeord
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
appenl under s. 410 of the Code, and in a case of
acquittal, under s. 417 of the Code, to the High
Court. Buts. 4i8 of the Code provides:
"(l) 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
Bhall lie on a matter of law only."
Sub-section (2) thneof provides for a case of a
person sentenced
to
d,,ath, with which we are not
now concerned. ~·ection 42J confers certain powers
on
an appellate Court in the matter of dispo_sing
of an appeal,
strnh as calling for the record, hearing
of the pleaders, and passing appropriate orders
therein. But sub-s. (2) of s. 42:l 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 owing .to a misdirection by the
Judge, or to a misunderstanding on the part
of the jury of the law as laid clown by him."
It may be noticed at this stage, as it will be rele
vant in considering one of the arguments raised in
this case,
that
sub-a. (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.
-t The Corle of Criminal Procedure also provides
for a different situation. The Sessions Judge may
l96l
K. M. N anavati
._
TM Stot1 of
Moha1ash11a
8u6ba Rao J.
1961
/,". JI. 'lcH1av1ti
••
Tht ~ttTtt of
lt1ah4ra1hlra
580 SUPREME COURT REPORTS [1962) SUPP.
not agree with the verdict of the jurors or the
majority
of them; and in
th:i.t event s. 307 provides
fora machinery to meet that situation. As the
argument mninly turns upon the interpretation of
the proviRions of this section, it will be convenient
to read the relevant clauses thereof.
Section 307 : (I) If in any such case the
J u<lge disagreeR with the verdict of the jurors,
or of a majority of the jurors, on all or any of
the charges on which any accused person has
been tried, and is clearly of opinion that it iR
ncceRsarv for the ends ef justice to submit the
<'asc in respect of such accused person to the
High Court, he shall submit the case acror
<lingly, recording the grom1ds of his opinion,
and, wlwn the verdict is one of acquittal,
slating the offence which he considers to have
hcen
committ~d,
and in such case, if the
accused is further charged under the provisions
of section 310, shall proceed to try him c•n
sueh charge as if such verdict had been one
of eo1l\'iC"tion.
(3) In dealing with the case w 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
ha.ve
convicted him upon the charge framed
and placed before it; and, if it convicts
him,
may
pass such sentence a.s might have
been passed by the Court of Session.
This S'.,ction
is a
clear departure from tho 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,
{l) S.C.R. SUPREME COURT REPORTS 5Sl
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. l'nder that section, where
th.ire 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 verdiots
of inexperienced jurors
anp also
indicates the clear ini;!Jntion of the Legislature to
confer on a High Court a separate jurisdfotion,
which for convenience may be described as "refer'lnC(l
jurisdiction". Section
307
of the Code of Crimin'l!
Procedure, while continuing the benefits of the jury
system to persons tried by a Court of Session, also
guards against any possible injustice, h1wing regard
to the conditions obtaining in India. It is, there
fore clear that there is an essential difference between
the scope of the jurisdiction of the High Court in
disposing
of an appeal against a conviction or
acquittal, as
•.he 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, where
as in the latter the absence of such agreement
necessitated the conferment of a larger power on
1901
K. M. Nanavcti
Y,
TJi1 S1a1e of
Maharashtra
Sufba Roo J.
JKJ
1•. M . .iV01COt·ali
v.
r/11 Stott of
MohmOJiot,.
Suoba &. J.
582 SUPREME COURT REPORTS [l!iG2] SUPr.
the High Court in the matter c,f interfering with
the verdict of the jury.
Under s. 307(1 ) of the Code, the obligation
cast upon the SeBl'ions Judge to submit the case t:i
the High Court is made subject to two conditions,
namely, (1) the Judge shall disagret> with the
verdict of the jurors, and
(2) he
is clearly
of the opinion that it is neceEsary in the
ends of justice to submit the cabe to the
High Court.
If the two conditions are complied
with,
he shall submit the case, r"cording 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 tliscretion 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 Ramanuyrah Sinyh v. King Emperar('), construed
the words "neceBB&ry for the ends of justice" and
laid down that the words mean that tht> Judge shall
be of the opinion that the verdict of the jury is one
which no reasonable body
of men
could have rea
ched on the evidence. Having regard to that inter
pretation, it m1iy bf! held that the second condi
tion 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 dift'ers from
the jury and
is clearly of
such an opinion, he shall
submit the case to the High Court reeording the
grounds
of his opinion. In that event, the
said
reference is clearly competent. If on the other
hand, the ease ~ubmitted to the High Court does
not ex fuc:ie 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
th" question whether the Judge
(I) (19'46) L. R. 173, J. A. !H, 182, IU6,
•
(l) 8.C.R. SUPREME COURT REPORTS 583
is justified in differing from the jury or forming such
an opinion on the verdict
of the jury. The
argu
ment th!tt though the Sessions Judge has complied
with the conditions necessary for making a refercn·
ce, the High Court shall reject the reference as
incompetent without going into
the evidence if the
reasons given do not sustain the view
ex]Jressed by
the Sessions Judge, is not supported by the provi
sions of sub-s. ( 1) of s. 307 of the Code. Hut it is
said
that it is borne out of the
decision of the
Judicial Committee in Ramanugran Singh's case(').
In that case the Judicial Committee relied upon the
words "ends of justice" and 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 juotice must be
the determining factor both for the Sessions Judge
in making the reference and fur 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 shoud 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 consider• that on the
evidence no reasonable body of men could
have reached the conclusion arrived 'l.t by the
jury,
then the reference was justified and the
ends
of justice require that the verdict be
disregarded."
'l'he Judicial Committee proceeded to state:
"In their Lordships' opinion had the High
Court approacheli the reference on the right
(I) (19<46) L. R, 73, LA. 174, 182, 186.
1961
K. M. Nanavflti
v. -
T/uSta'e of
Maharashtra
s .. oba &wJ.
11161
K. M, N anavati
••
Th1St.te of
MahartUhltu
8 .. HRaoJ.
584 SUPREME COURT REPOHTS [l!!ti2] SUPr.
lines and given due weight to the opinion of
the jury they would have been bc•und to hold
that the reference was not justified and that
the ends of justice did not require any inter·
ference 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 <lo not
support his view
that it is
necessary in the ends of
justice
to refer the
rase to tho High Comt. 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 a.ad 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
compe·
tenoy 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 considera
tion 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
bear
ing on the competency of a reference under
s. 307(1) of the Coae of Criminal Procedure.
Now, coming to sub-a. (3) of s. 307 c.f the
Code, it is in two parts. The first part says that
the High Cc.urt may exercise any of the powers
which it may exercise in an appeal. Undrr the
..
..
(1) S.C.k. SUPREME COURT kEPORTS 585
second part, after considering the entire evidenee
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 lacKs clarity. That may be due to the fact
that piecemeal amendments
have been made to 1he
section from time
to time to meet ce1 tain
difficulties.
But we cannot ignorE the expressi0n, 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
Comt. It also defines 1he
scope of its jurisdiction and its Jimi~ations. 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 Sesskn. 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 powe1s
are conferred on
the High
Court under the first part. The first part
eRahles the High Court to exercise any of the pow
ers which it may exercise in appeal, for without such
powers
it cannot exercise its jurisdfotion effectively.
But the expression
"subject to" indicates that in
exercise
of its jurisdiction in the manner
inditla
ted 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
"subjeet thereto", must
19~1
Ji.". At. Nanov.;ti
V,
Tht State or
.'t1uharosht1a
Sub ha Rao .J.
l\.N ,.N1211411ali
Tf.e S;at1 of
aharo.Jit1J
8u06o Roo J.
586 SUPREME COURT REPO}{TS (196:.!) SUPP.
be confined to the area of the procedural powers
conferred on a appellate court. If that be tho
construction,
the question
arisrs, how to reconcile
the provisions
of s. 423 (2) with those of s.
307 of
tho Code? Under HUb-s. (:!) ofs. 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 erroneou~ owing to a misdirection by the
Judg<>, or to a misunderstanding on the part
of the jury of the law as laid down by him."
It may he ar~ued that, as an appellate court cannot
alter or reverse the verdict of a jury unlrss such a
verdict
is erroneous owing to a
misdindion liy the
Judge,
or to
:L 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 cculd
not
do so cxu·pt for the
said reasons. Sub-section (2) of s. 4~3 of the Code
docs
not confer any power of the High
Com t ; it
only restates the scope of the limited jurisdiction
conferred on the court under
s.
418 of the Code,
and that coulcl not have any application to the
Hpecial jurisdiction confcrrrd on the High Court
under s. :107. That apart, a perusal of the provi
sions of s. 423 (1) indicates th1t there arc pow«rs
conferred on an appellate court whic·h cannot
possibly
be
exercisPd by courts disposing of a
reference under s. 307 of the Code, namely, the
power to order commitment ctr. :Further s. 4°::':l (I)
(a} and (b) speak of conviction, acquittal, fiuding
and sentence, wh~eh a.re wholly inappropriate to
verdict of a jury. Therefore, a rca.sunablo construc
tion will bo that the High Comt. ran exercise-any
of the powt>rs ronforrrcl 011 a.n appellate cou1t
under s. 423 or under <'ther sectio113 of the Code
which are appropr ia.te to the dbposal of a. rl'ference
under a. 307. Tbe object is to pr cnnt miscarriage
of the justice by the jurors returning erroneous
(1) s.c.R. SUPREME COURT REPO!tTS 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 en:tLle the High Court to correct an erroneous ver
dict
of
a jury only in a case of misdirection by the
Judge but not in a case of fair and good charge.
This result effaces the distinction between tho two
types
of jurisdiction.
Indl•ed, learned counsd for
the appellant has taken a cont,rary 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
misdirectious in the
charge
to the jury. This argument is built upon the
hypothesis
that under the
Code of Criminal Pro
cedure there is a clear dl'marcation of the functions
of the jury and the Judge, the jury dealing with
facts
and the Judge with law, and therefore the
High Court
cuuld set aside a verdict on the ground
of misdirection only when an, appeal comes to it
under s. 418 and cnuld only interfere with the
verdict
of the jury for the ends of justice, as inter
preted by the
Privy Council, when the matter
comes to it under s. 307 (3). If this interpretation
be accepted, we would be attributing
to the Legis
lature
an intention to introduce a circuituous
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 dis
agrees with that verdict and states the case to the
High Court ; the High Court holds tha:t the said
verdict is
not erroneous on the basis of the charge,
but is of the opinion that the verdict is erroneous
because
of the misdirections in the charge ; even
so,
it shall hold that the verdict of the jury is
good
and reject the reference thereafter, the
Judge
h11s to accept the verdict and acquit
the accused ; tlie prosecution then will have
1961
J(. Al. NatWl'ati
v.
Tht lilate of
Maharashtra
Subba Rao J
''· Al .\" 0110L'Oli
•.
Tht ,f..-tOf8 of
/IJ,.fillrc1$hlra
("ll/!ba Ruo J,
588 SUPREME COURT REPORTS fl962] SUPP .
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
int<>nt ion of the Legislature. Take
the converse case. On similar facts, tho jury brings
in a verdict
of
"guilty" ; the Judge disagrees with
the
jury and makes
a reference to the High
Court ; even though it finnds misdirections in
the charge to the jury, the High Court cannot
set aside the convict.ion but must rrject the
refnenec ; and after the cc nviction, the accused
may prefer an appeal to the High Court. This
procedure will introduce confusion in jury trials,
introduce multiplicity of p1occedingP, and attri
bute ineptitude to the Legislature. What is
more, this construction
is not supported by the
express provisions of
s.
307 (3) of the Code. 1 he
said sub-section enables the High Court
to consider
the entire evidence, to give due weight to tho
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 opini
ons of the SeBBions 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 d1·p< nde
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 vi1dict
and may not carry the same weight as the united
one does ;
it may be vitiated by misdirections or
non-directions. How
c·1m a Judge give any weight
to a verdict if it is induced and vitiat<>d by grave
misdirections in the charge
?
That a part, the High
Court has to give due weight
to the opinion of the
Sessions
JuJge.
The reasons for the opinion of the
Sessions Judge a.re disclosed in the case submitted
by him to the High Court. If the case Mated by
the SesEions Judge discloses that there must haYe
been misdirections in the charge, how ran the High
Court ignore them in giving duo wt>ight to his
..
I
I
(1) S.C.R. SUPREME OOURT REPORTS 589
opinion ? What is more, the jurisdiction of the High
Court is oouehed 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 consideratlon 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
jurisdic
tion of the High Court.
It appears to us that the Legislature design
edly conferred a larger power on the High Court
under s. 307(3) of the Code than that conferred
under s.
418 thereof, as in the former case the Sessions Judge differs from the jury while in the
latter he agrees with the jury.
The decisions cited
at the Bar do not in any
way sustain in narrow construction sougt to be
placed by learned counsel on
s.
307 of the Code.
In Ramanugrah Singh's casP. (
1
), which has been
referred to earlier, the Judici11.l Committee describ
ed 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 then acquit or
convict the accused."
The Judicial Committee took care to observe :
" ......... the test of reasonableness on the
part of the j1iry m lY 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 sh<iwn to be wrong.
In such a case the ends of justice would
(IJ (1945-46) L. R. 73 I. A. 171, 182.
1961
K. II. N a12vati
••
The .}lat1 of·
Maha~as~lr•
S.'l~ba Rao ·'·
1961
K, .\l . .Nanavati
".
711. Stat1 of
~laluira.rhtra
Subba Rao J.
590 t:!UP}{EM~-tl>URT REPORTS [1962] SUPP·
require the verdict to be set aside thouah the
jury had not acted unreaRona)>ly."
0
·
This passage indicates that the Judicial Committee
did
not purport to lay down exhaustively the
circum
stances under which-the High Court could 'interefere
under the said sub-section· with the verdict of the
jury. This Gour:t in Akhlakrrli HayataUi v. 'f'he State of
Bomhay (
1
) accepted the view of the Judicial Com
mittee on th,e construction of s. 307 of the Code
of Criminal l>rocedur,e, and applied it to the facts
of that case. But the followjng passage of this
Court indicatell that it also does not consider the
test of reas.or.:abl1·ness as the only guide in interfer
in~ with the verdict of the jury :
--, "The •charge was not attacked before the
High ·cotirJ nor before us as containing any
misdirections ,ar non-directions ·to the jury
such as to vitiate the verdict.'~
'!'his passage recognizes t.he possibility of inter
ference by the High Court with the verdict. of tjie
jury under the said sub-section if the verdict is
vitiatP.d by misdirections or non-directions. So
too, the decision of this Court in Ratan Ra~ v.
State of Biltar (') assumes that uuch an interference
is permissible
if the verdict of the jury was
vitiated
by misdirections. In that case, the appel !ants 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 the 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 s11Ch and nothing more, and found
the appellants guilty and convicted them. This
Court, observing,t.hat it was incumbent on the High
r iJ [1954] S. C.R. 435, 43~. (2) (1957] S. C. R. 273.
(1) S.C.R. SUPREME OOURT REl-ORTS 591
Court to consider the entire evidence and the charge
as framed a.nd pla.oed before the jury and to come
to its own conclusion whether the evidence was
such that could properly support the verdict of
guilty against the appellants, allowed the appeal
and remanded the matter
to the High Court
for• dis
posal in accordance with the provisions of s. 307 of
the Code of Criminal Prorn~dure. 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
th\! verdict
of the jury. Thi;> Court again in Sashi Mohan Debnath
v. The State of IV est Bengal ('). held that where
the Sessions .Judge disagreed with the ver
dict of the jury and was of the opinion
that the caBe should be submitted to the High
Court, he should submit the whole caBe 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 J ud~e recor
ded his judgment of acquittal in respect of the lat
ter 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-a. (
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 in
competent and
that the High
Court could not pro
ceed to exercise an v of the powers conferred upon
i~ under sub-s. (3) of B. 307 of the Code, because the
very foundation of the exercise of
that power
was
lacking, the reference being incompetent. This
(I) [1958) S. C. R. 960.
1961
K. :\.I. NantJvtatr
..
The Slo/t, oJ
~/ uharas~trs
Subb1 ll.io J.
I
I
!
I
I
1951
K. Al . Nanavati
v.
I he S;ate of
}.[aharashtra
592 SUPRE:IIE COURT REPORTS [1962) SUPP.
Court held that the reference was incompetent be
cause the Session3 Jurlge ·contrav~ned the express
provisions
of sub-s. (2) of s.
:>07 of the Code, for
under that sub-section whenever a Judge submits a.
case under that sc!.'tion, he shall not record judg-
Si.bba Rao J~ . f , . -ment o 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
exprms provi
sions of sub-s. (2) of s. 307 of the Code and therefore
the use of the wt•rd 'incompetent' may not be in
appropriate. The decision of a division bench of
· the Patna High Court in. Emperor v. Ramadha.r
'Kitrmi (') 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-direc
tions. 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 refer
ence un<ler s. 307 as on an appeal.
It is not necessary to multiply decisions .. The fore
goin~ discussion may be summarized in the form of
the following propositions : 1 J) The competenc.Y
of a reference made by a Sessions Judge depends
upon the existence of · two conditions,
namely, (i)
that he \disagrees with the vertlict ·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, afrnr reaching that opinion, in the case
submitted
by him he shall record the
groun<ls of his
opinion. (~) 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
Ccmrt may reject the reference as incompetent : the
·-
(I) A. I. R. 1948 Pat. 79, 84.
(I) S.C.R. SUPREME COURT REPORTS 593
High Court can also reject it if the Sessions Judge
has contravened sub-s. (2) of s. 307. (3) If the case
submitt?d shows that the Sessions Judge has
disagreed with the verdict
of the jury and that
he is clearly of the opinion that no reasonable
body of men could have reached the conclusion
arrived
at by the jury, and he discloses his reasons
for the opinion, sub-s. (3)
of s.
307 of the Code
comes into play, and thereafter the High Court has
an obligation to discharge its duty imposed there
under. (4) Under sub-s. (3) of s. 307 of the Code,
the High Court has to consider the entire evidence
and,
after giving due weight to the opinions of the
Sessions ,Judge and the
jury, acquit or convict the
aocused.
(5) The High
Court may deal with the
reference in two ways, namely,
(i) if there are
mis·
directions vitiating the verdict, it may, after going
into the entire evidence, disregard the verdict
of the
jury and come
to its own conclusion, and (ii) even
if there are no misdirections, the High
Court can
interfere with the verdict of the jury if it finds the
verdic" "perverso in the sense of being unreason
able", "manifestly wrong", or "against the weight
of evidence", or, in other words, if the verdic.t 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, re
manding the case, ordering a retrial, etc. We there
fore, 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. .Misdirection is some·
thing which a judge in his charge tells the jury and
is wrong or in a wrong manner tending to mislead
them.
Even an
omiiision to mention matters
which are essential to the prosecution or
the defence case in order to help the jury to come to a correct
U6l
K,_JJ. Nanavuti
v.
Tiu State of
Maharashtra
Su6ha Rao J.
19~/
K. , . Nuru.tOli
Y.
Tiu S1ot4 •/
,\lalwroslt.lro
Su.'bo Ro• J.
594 SUPREME COURT REPORTS [1962) SUPP.
verdict may also in certain circumstances amount
to a misdirection. But,
in either
case, every mis·
direction 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.
Jn Mushtak Hussein v. The State of Bombay(•),
this Court laid down:
"Unless therefore it is establisherl in a
case that there has been a serious misdirection
by the judge in charging the jury which bas
occasioned a
failur<> c.f
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 re
cent decision, viz., Smt. Nagindra Bula 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 coun
sel 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 correctneBS of the verdict.
We
shall now take the first and the third mis
directions pointed out by Shelat, J., as they are in
timately connected with each other. They are real
ly omissions. The first omission ·is that through
out the entire charge there is no reference to s. I 05
of the Evidence Act or to the statutory presumption
laid down
in that section. The
second omission is
that the Se88ions Judge failed to explain to the jury
the legal ingredients of e. SO 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
(I) [1953J S.C.ll. 809 (2) [1960] 3 S.C.R.1.
•
•
,.
..
(l) s.c.R. SUPREME COU.&T RJU><)RTS 595
omissions, it is necessary to read the relevant provi
sions.
Section 80 of the Indian Penal 0flfk.
"Nothing is an offence which is done by
accident or misfortune, and without any
criminal intention or know}edge in the doing
of a lawful act in a lawful manner by lawful
means and with proper care and caution."
EWlence Act.
Section 103: "The· burdell 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 particu Jar
person."
Section 105: ''When a person is accused
of auy 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."
SeGfion 3 : "Jn this Act the following
words
and expressions are used in the
follow
ing senses, unl688 a contrary intention appears
from the
context:-
A
fact is said to be disproved when, after
considering the matters before it, the Court
either believes that it does not exist, or
considers its non-existence so probable that a
prudent man ought, under the circumstances
of the particular case, to act upon
the supposition that it does not exist."
1~61
K. M. N•MNli
••
1 lu Stat10f
.M aluo ashlT a
Subba R .. J.
lHl
K.M.N-1i
••
Tio. BtoJ1 of
. aMra.sht·a
Subb< Rao J.
..
596 SUPREME COURT REPOHTS [1962] SUPP. ,
Section .J: ... ... ......... "Whenever it is
directed by this Act tha.t the Court shall
presume a fa.ct, it shall regard Huch fact as
proved unless and until it iH disproved."
'The legal impact of the ea.id provisions on the
question of burden of proof may be st.ated thus :
In India, as it is in Eugla.nd, there is a presumption
of innocence in favout of the accused as a general
rule, a.nd it is the duty of the prosecution to prove
the guilt
of the accus{'d; to put it in other words,
the accused
is presumed to be innocent until hie
guilt is established
by the prosecution. But when
a.n accused relies upon the General Exceptions in
the
Indian Pena.I Code or on any special exception
or proviso contained in any other pa.rt of the Penal
Code, or in any la.w defining an offence, e. 105 of
the Evidence Act raises a presumption against the
accused and
a.lso throws a.
burdt'n on him to rebut
tho said presumption. Under tha.t section the Court
eha.11 presume the absence of circumstances bringing
the ca.ee within any of the exceptions, that is, the
Court shall regard the non-c·xi~tence of such circum
stances
a.s
proved till they are disproved. An illus
tration based on the facts of the prest'nt case ma.y
bring out the meaning of the ea.id provision. The
prosecution a.lieges tJ> n,t tht• a cc used int en tiona.lly
shot the deceased; but the accused pleads that,
though the shots emana.te·d from hie revolver and
hit the deceased, it wa.s by accident, tha.t ie, the
shots went off the revolver in the course of a
struggle in the circumstances mentioned
in s. 80 of the Indian Pena.I Code and hit the decea
sed resu !ting in his death. The Court then shall
presume the absence of circumstances bringing the
ca.se within the provisions of s. 80 of the Indian
Penal Code, that is, it shall presume tha.t the shoo
ting was not by accident, and that the other
circumstances bringing the ca.se within the excep
tion did not exist; but this presumption ma.y be
rebutted by the accused by adducing evidence to
..
•
JI
I
•
(1) S.C.R. SUPREME COURT REPORTS 497
support his plea of accident in the circumstances
mentioned therein. This presumption may also be
rebutted
by admissions made or circumstances
elici
ted by the evidence led by tho pro3ecution 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 a.II 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 roal. Inrleed, there is no conflict at a.II.
There may a.rise three difforent siLuations : (I) A
statute ma.y throw the burden of proof of
all or some of the in~redients of an offence on the
accused: (see ss. 4 and 5 of the Prevention of Corrup·
tion Act). i2) The special burden may not touch
the ingredient.s
of the offence, but only the
protec
tion 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
excep
tion, some of the many circumstances required to
attract the exception
if proved affecting the proof of
all or some of the ingredients of
t,he offence: (sees.
80 of the Indian Penal Code). In the first case the
burden of proving the ingredients or some of the
ingredients
of tho offence, as the case may be,
lie$
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 pro>ed may not discharge the
said burden,
but may affect the proof of the
ingre
dients of the offence. An illustration may bring
out the meaning. The prosecution has
to prove
that the accused shot dead the deceased
inten
tionally and thereby committed the offence of
murder within the meaning of s. 300 of the Indian
1961
K. JI. /Jo11t••ti
V.
The Stolt of
M shar,ul.'1a
Subba Rao J.
1961
1.-. l/. J\'anaz-·•ti
v.
Th, Stat' of
.li c!1<11Qf.htra
!i98 SUPREME COURT REPORTS [1962] SUPP.
PPnal Code; the prosecution has to prove the inp:re
<l ientH of murder, and one of tht' ingredients of that
offenc·e is that th" ac,,,nsf'd intr.ntionally shot the
<lec:cased; the ae<·used plca<ls that he shot at the
deceased by accident without any intention or
knowledge in the <loing of a lnwful act in a lawful
manner
hy lawful
means with proper care and
caution; the acc·used against whom a presumption
is drawn nnder s. l05 of the Evidence Act that the
Hhooting was not hy accident in the circumstances
mentioned
in
s. 80 of the Indian Penal Code, may
adduce evidence to rebut that presumption. That
r.vidcnce 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 reqnisit-'l state of mind,
which
is
the• cs~encc of the offence, within the mmt
ning ofs. 300, f11dia11 Penal Co<lP, or at any rate
may throw a reasonable douht on t.he essential
ingredients
of
tlw offcn<:e of murc1"r. In that event
though the accusi>d failed to bring his case
within the t<>nns of A. 80 of the Indi1m Penal Code,
the Court may hold that the ingredients of the
offenec have n<>t been established or that the prose·
c·ution 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 th"re is a specific statute to the con-.
trary,
is
alwayri on the prosecution, but the burden
to pro\•e thn circumstanct•s coming under the excep-
t i•ms lies upon tho :tccuscd. The failure on the
part of thc accused to establish all the circums·
tances bringing his ease under the exception does
not absolve th" prosecution to prove the ingre
dients of the offence; indeed, the evidence, though
insufficient to establish the exception, may be suffi
cient to negative one or more of the ingredient.e of
the offence.
•
(I) S.C.R. SUPREME COURT REPORTS 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, there
fore, prefer not to refer to them, except to one of
the leading decisions on the subject, namely, Wool
mington v. The Director of Public Prosecutions (1 ).
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
ex11.mination of the circum·
stances adduced by the Crown that the act on
his
part
which caused death was either uninten
tional or provoked. If the jtiry are either
satiefied with his explapation or, upon a
review of all the evidence, are left in reason
able 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 Visconnt Sank0y,
L. C., speaking for the House, made the following
observations :
"Bnt while the prosecution must prove
the guilt of the prisoner, there is no surh bur·
den laid on the prisoner to prove his inno
cence 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 subjoct
to what I have
already said as
to the
defe!Jce of insanity and
subject also to any statutory exception. If.
(I) L.R (1935) A.C. 462, .fill.
1961
K. M . .Nonav,ti
V.
The St11tt nf
It! aharoshtra
Suhha Rao J.
JNJ
K. Jf. No"®1ti
••
Tiu S1a1, •!
M ahaToshlro
Subba Rao J.
600 SUPREME COURT REPORTS [1962) SUPP. •
at the end of and on the whole of the case,
there is a reasonable doubt, created by the
evidence given by 1,ither 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
expreBSed
by us earlier. As in
England so in India,
the prosecution must prove the guilt of the accused,
i.r., it must establish all the ingredients of the
offence with which he is charged. As in England
so also in India, the general hurden 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
a<:cused committed the offence, he is Pntitled to
the benefit of doubt. In India if an accused pleads
~n cxeption within the meaning of s. 80 of the
Indian Penal Code, there is a presumption against
him am! the burden to rebut that pres11mptio11 lies
on him. Jn England there is no provision similar
to H. 80 of the Indian Penal Codo, but Visc:ount
Rankey, L. C., makes it clear that such a hurclcn
Jips upon the accused if his defence is one of insa.1ii
ty and in a case where there is a Htatutory except
ion to tho general rule of hurden of proof. Such
an Pxception
we
find in a. I 05 of the Indian Eviden
C(' Act. Heliance is placed by learned rounsel for
tho accused on the <licision of the Privy Council in
Attygal.le v. Emwror(') in support of the contention
that notwithstanding s. I 05 of the Evidence Act, the
burrlen of est1Lblishing the abs1mce of accident
within tne meaning of s. 80 of tho Indian Penal
Coile is on the prosecution. In that case, two
persons were prosecuted, one for performing an
illPgal operation and the other for abetting him in
that crime. Under fi. 106 of the Ordinance 14 of
(I} A.l.R. 1'131; P.C. 11;1, 170
(1) S.C.R. SUPREME COURT REPORTS 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 know
ledge
of
any person, the burden of proving that fact
was up0n 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
per
formed-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 exa
mination."
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 bur
den which the accused person had to discharge.
The summing-up goes on to explain the pre
sumption of innocence in favour of accused
persons,
but it again
reiterates that the burden
of proving that uo 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 accus
ed 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 baa.ring on the construc
tion of s. 105 of the Indian Evidence Act. T4e
19~J
K. M. Nanavat i
v.
The State of
M aharaJhlru
Subia RaoJ.
1951
K. M, Nn1101:ati
••
The 51011 of
.'d aharashlra
Sidib' Ra, ./.
602 SL"PREME COURT REPORTS (1962] SUPP. C"
decisions of this Court in The SUlte of MadrM v.
A. Vai4yanatha Iyer('), which deals with s. 4 of
the Prevention of Corruption Act, 194 7, and C.S.D .
Swam·i \'. The Stat1:('), 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 esta.·
blishing the absence of some of tho ingredients of
the offence on the accused; and this Court held
that notwithstancling the general burden on the
prosecution to prO\·e the offence, the burden of
proving the absPnce of the ingredients of tho
ofTenco under certain circumstancefi waR on the
accused. Furth<·r· citations arc unnec:essary as, in
our view, the terms of s. I 05 of the Evidence Act
are clear and unitmbiguous.
1\lr. Pathak contends that the accusl'<l did not
rely upon any exception within the tn<·aning of s.~O
of the Jn:lian Penal Cude and that his pica all thro
ough has been only th:Lt the prosecution has failed
In establi8h intentional killing on his part. Al
ternatively, he arj!UOS that aH the entire twidence
has been adduced both by tho prosecution and
by thf> accused, the burden of proof became only
academic and the jury was in a position to come
to orni conclusion or other on the evidenre irrrs
P""tive of t.h~ hnrdcn of proof. Beforo the Sessions
.Judge the accused certainl.v relied upon s. 80 of
the t'mlian Penal Code, and the Sessions .Judge
dealt with t.Jw defence case in his charge to the jury.
[n paragraph <; of the charge, the l~arncd ScssiollS
.Judge
stated
:
"Before I proceed further I have to point
out anothl•r section which is sC'ction 80. You
know
by now
t.hat the dcfonee of the accused
is
that the firing of the revolver
w11s a matter
of accident during a struggle for possession of
the revolver. A struggle or a. fight by itself
does
not
ext>mpt a person. It is the accident
which exempts a person from criminal liability
(II [1958] S.C'.ll. 580. (21 [1960] I. S.C.R. ~I.
I
(1) S.C.R. SUPREME COURT REPORTS 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
assaihnt. It is only an accident, whether it
is in a struggle or a. fi~ht or otherwise which
can exempt a prisoner from criminal liability.
I shall draw rnur attention to section 80
which says : ... ." ........ (section 80 read). You
know that there rire several provisions which
are· to be satisfied before the benefit of this
exception can be claimed
by an accused per
son
and it should be that the act
itself must
be
an accident or
misfortunC', there should be
no criminal intention or knowledgp, in the
doing
of that act, that act itself must be
dom'
in a lawful mannn and it must he 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 alJ the factors, which might
emerge from
the
evidcnC'e before you, whether
it was proper care anrl. caution .to take ii
loaded revolver without a safety catch to thf'
residence of the person with \~horn you were
going to talk and if you do not get an
honourable answer you were prepared to
thrash him. You have also to consider this
further circumstance whether
it is an act
wit.Ji
proper care and caution to keep that load!'d
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,
whet>her the act of the accused in this c11se
can be said to be an act which was lawfully
1161
K. M. Nnnavati
v.
The S fate t!(
Jll aharaJhtra
Subha Rau J.
1961
K. Al, N aftatoati
Y.
Tiu Slatt "/
Mo/rflroJhlta
Suhba Bao J.
604 SUPREME COURT REPORTS (1962] SUPP.
done in a lawful manner and with proper care
and caution.· If it i.q so, then and only thPn
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 Se.ssions Judge mixed
up the ingredients
of the offence with those of the
exception. Ho did
not place before tho jury tho
distinction in
the matter of burden of proof between
the ingredients
of tho
offence and thoso of tho
exception. He dirl not tell the jury that where the
accused relied upon th1> Pxcept.ion embodied in
s. 80 of the Indian Penal CodP, there was a statu·
tory presumption against him and the burden
of proof was on him to rebut that presumption.
What is morf', he told the jury that it was for them
to clP.cidt> whether the act of the accu8ed in the case
could be said to be an act which was lawfully done
in a lawful manner with prop"r 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 man
ner", "lawful means" and "with proper care nnrl cau
tion" and pointecl out to th Pm the appliration of the
rnicl logal terminology to the facts of the cas.,. Ou
Huch a ehargo a~ in tho present cas<', it was not possible
for the jury, who \'(•.re laym<'n, to know the C'Xaet
scope of tho defence and also the circumstances
under whic-h the pica unde!' s. 80 of the Tnclian
Penal Coclo was made out. Th~y would not have
alRo known that ifs. 80 of the Indian Pt·nal Code
applied, thero was a presumption against the accu
R"d anrl tho burden of proof t.n re hut the prl'sump·
tion was on him. In such cireumstances, we can
not preclicatc that the jury undcrAtood the legal
implications of a. 80 of tho Inclian Penal Code ancl
the scope of the burden of proof unclnr s. I Oii of
t.J1c Evidence Act, and gave their verclict correctly.
Nor can WC' say that the jury understood the
distinction hetween tb11 ingredionte of the offence
(1) S.C.R. SUPREME COURT REPOR'l'S 605
and the circumstances that attract R. 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 offt>nc<>. The said omissions
thenfore are very grave omissions which certainly
vitiated the verdict
of the jury.
The
next misdirection
relates to the question
of grave and sudden provocation. On this question,
Shelat, J., made the following remarks :
"Thus the question whether a confession
of adultery by the wife of accused to him
amounts to grave and suddc·n 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 learn
ed
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 herein
aliove it was not. He was thc>rl'forc in en or
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
deci
sions 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
1961
K. M.
N11navati
v.
T!te Stat~ o}·
},J aharaJIUra
Subba Rao J.
1961
X. Jl! .. \'una11ali
v.
T~ St•te of
lil aharwhlra
S11bba Rao J,
606 SUPREME COURT REPORTS [1962] SUPP.
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
per
son 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 m&thJr of law to direct
the jury
that the evidence docs
nut support a.
verdict of manslaughwr. If, on the other
hand, the ca.so is one in which the viow might
fairly
ho
taken (a) that a reasonable person,
in cu11~c<1uencc of the provocation received,
might
be so rendered
subject to passion or
loss of control as to be led to use the violence
with fata.I rnsult<1, and (h) that the accused
was in fact acting under the "tre"s of &uch
p-ovoc.ation, then it is for th<' jmy to deter
mine whether on its view of the facts m&n
Hlaughtcr or murder is the appropriate
verdict."
Viscount Simou brought out tfo, dititinctiun between
the respective duties of the judge and the jury SU0-
cinctly by formulating the following questions :
"The distinction, therofore, is between
asking •Could th<' evidence support the view
that the provocation was sufficient to lead a
reasonable person
to do what the accused
did
?' (which is for
tho judge to rule), and,
assuming
that the judge's ruling is in
affirma
tive, asking the jury : 'Do you consider
that, on the facts as you find them from the
evidence, t.hc provocation Wll8 in fact enough
tu lead a reasonnblo person to do what the
(I) I .R. (19-161A.C.588, 5~7.
;;
(1) S.C.R. SUPREME COURT REPORTS 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 consi ·
der 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
arc governed
by
the statutory
provisic>ns, and t.hat 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 prevPnt the olfenee
from amounting to murder is one of fa<'t", and
therefore, unlike
in England, in India both
the
aforesaid questions fall entirely within the seope of
the jury and they are for thBm to decide'. To put
it in other words, whether a reasonable pNsnn in
the circumstances of a particular case committed
t.he 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 ueces-8ary 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 circum.
stantial 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
19111
K. 111, N an<Wati
v.
Tiit Sta11 of
.Maharashtra
Subba Rao J.
I
I
I
I
1961
J; ...ll. ~Yona;nfi
••
Th6 State
of
:ftlaharcuhtra
Subba Rao J.
;_ ~-------
668 SUPREME COURT REPORTS·[i902JSUPP.
to say there is no witness who can say that he
saw
the accused actually shooting and killing
deceased.
1here are no direct
witne<ses, direct
witnesses
as they are called, of the event in · question. Prosecution relies on certain circums·
tances 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 cir
cumstantial evidence because it is not always
the case or generally the case that people who
go
out to commit crime will also take'
wit
nesses with them. So that it. may be that in
some cases the prosecution may have to rely
on circumstantial evidence.
Now. when you
are dealing with circumstantial evidence you
will bear in mind certain principles, namely,
that the facts on which the prosecution relies
must be fully established. They must be fully
and firmly established. These facts must
lead to one conclusion and one only namely
the guilt of the accused and lastly it must
exclude all reasonable hypothesis consistent
with the innocence of the accused, all
reason
able 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 ·he 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 circums
tantial evidence a.nd 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
(1) S.C.R. SUPREME COURT REPORTS 609
they will form a word pregnant with meaning.
That ia the way how you have to consi(ler the
circumstantial evidence. You have to tu,ke all
tho
ei1 enmRtanees
together 1md judge for y<1u1·
sP!f wheth<'l" the prosecution have t>stablishf'd
their case.''
In paragraph 18 of the charge, the learned Scssiuns
Judge dealt with the evidence of Puransingh separa
tely and told the jury that if his evidenee wa8 be
lieved, it was one of the best forms of evidence
against the man who made the admission and tlrnt
if they accepted that evidence, then the story of tho
defence that it was an accident \"ould become un
tenable. Finallv he summrirized all the circum -
stances on which the prosecution relied in paragraph
34 and one of the circumstm1ces mentionc<l was tlw
extra-judicial confession made to Puransingh. In
that paragraph the learned Sessions Judge observed
as follows:
"I will now summarize the circwnstauces
on which the prosecution relies in this case.
Consider whether the circumstances are esta
blished beyond all reasonable doubt. In this
case you
are dealing with
circwnsta11ti1tl
evidence and therefore consider whether they
are fully
and firmly established and
consid~r
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
110 room for any reason
able 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
pl"9bability it must
be the accused
and the accused alone who ·must have committed this crime".
1961
H. M. i'w'•nawfi
••
Tl~ Stat' .t
M aharalhtr•
Subba Bao J,
11161
K, ;,_,. N atlOiliU"i
V.
'Tiu Stolt of
Maha,0Jld1a
Subha Rao J,
610 SUPREME COURT REPORTS (1962) SUPP.
Finally the learned Sessions Judge told them :
"If on the other hand you think that the
circumstances on which the prosecution relies
are fully and firmly established, that they
lead to one and the only conclusion and one
only,
of the guilt of the accused and that they
exclude
all reasonable hypoth.,sis of the inno
cence
of the
accused thP.11 and in that case it
will be your duty which you a.re bound by the
oath to briug verdict accordingly without any
fear or any favour and without regard being
ha.d to any consequence that this verdict might
lead
to.'' Mr. Pathak contends that the learned SesRions
Judge dealt with the evidence in two parts, in one
part he explaine<I to the jury the well settled ruk
of approach to circumstantial evidence, whereas in
anotl1er pa.rt he clearly and definitely pointed to the
jury the great evidentiary value
of the
1·xtra-judicial
confession
of guilt by the
accused made to Puran
sinj:h, if that was believed by tht·m. He therefore,
argues
that there
waR no scope for any confu8ion
in the minds of the juror8 in rf'gard to their
approach
to the evidence or in regard . to the
evidentiary value
of the extra-judicial
confestiion.
The argument proceeds that even if there was a
misdirection, it was not such as to vitiate the ver
dict of the jury. It is not possible t-0 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
?Te laymen. In more than one place the learned
Sessions Judge pointed out that the ca.so depended
upon circumstantial evidence
and that the jury
should apply the rule
of circumstantial ev idoncc
11ettled 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 circwnstantial evidence. It is
•
! ,
(1) S.C.R. SUPREME COURT REPORTS 611
not disputed that the extra-judicial confession made
to Pur'lnsingh is direct piece of evidence and that
the stringent rule of approach to circumstantial
evidence does not apply
to it. If that
confes8ion
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 rnit possible to
predicate
that the jury did not accept that confes.
sion
and therefore applied the rule of
circumstan
tial evidence. lt may well have been that the jury
accepted it
and still were guided by the rule of
circumstantial
evi<lence as pointed out by the lear
ned 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 t,he
High Court is the circumstance that the three letter~
written by Sylvia were not read tu the jury by the
learned Sessions Judge in his charge and that tho
jury were not told of their effect on the credibility
of the evidence of
Sylvia and Nanavati. Shclat, J.,
observed in regard to this circumstance thus:
"It cannot he gainsn id that these letk rs
were important documents disclosing the statl'
of mind of Mrs. NanavaLi and the deeeased
to a certain extent. If these letters had
been read in juxtaposition
of
lUrs.
Nanavati's evidence they would have shown
that her statement tha.t 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 thf'y
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
sur h a
marriage and then to make up her own mind
on her own. The lett<'rs would also show that
when the accused asked her, I.IS he said in hi8
1/161
K. ~11. ./\'anavati
v.
The State of
M aharashlra
.. "ubba Rao J.
I
I
j
!
'
I
I
i
I
I
i
'
1961
K. ~\!. }.' anariati
••
The Sta.ti uf
ftlaluuashlra
Suhha RaoJ.
I
/
6i2 SUPREME COURT RgPORTS [i962) SUPP·
evidence, whether Ahuja would marry her, it
was not probable that she would fence that
question .. On tho 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
l\Irs. Nana
vati's evidence was a nondirection amounting
to misdirection."
'
l\Ir. Pathak contends that these letters were read to
the jury by counsel on both sides and a reference
was also
made to them in the evidence
of Sylvia and, the.refore the jury clearly knew
the contents of the letters, and that in the circum
·
stances the non-mention of the contents· of the
letters by the Sessions Judge was not a misdirec·
tion 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 accept·
ed by the judge, it was contended that the omis·
sion to refer to the evidence of certain witnesses
wa.s a misdirection. Rejecting that plea, Hum·
· phreys, J., obsered : , . ·
"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
coun-.
sel for the prosecution. ··It is incredible that
they could have forgotten them or that they
could have misunderstood the matter in any
(I) [1942) I All. E.R. 187, 190. (2) [1961] 3 All. E.R. 243.
(l) S.C.R. SUPREME OOURT REPORTS 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 s
0.y
ing that it might not. have been more satis
factory if the judge had referred to the evi
dence 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 not lay down as a proposition of
law that liowever important cert.a.in documents or
pieces
of evidence may
be from the standpoint of
the accused or the prosecution, the j"udge 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 sta.tements made by witnesses were not
specifically brought
to the notice of the jury and
the Court held
ii! 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
cha.r:i,cter. The jury con
victed the appellant. The court held that, "altho
ugh in a complicated and lengthy case it was
incumbent on the court to deal with tho evidence
in summing· up, yot where, as in the present case,
t4e issues could be simply and clearly stated, it wa&
K. M. Nar.a1•ofi
••
The State of
Maharashtra
Subbo Rao J.
IHI
K. M. Nanaroti
••
Tiu Stau of
Maliaro.slltro
Subba Rao J.
614 SlTPRE:lfE COURT REPORTS [1962) SUPP,
not fatal defect for the evidence not to be reviewer!
in the ~umming-up." This is also a decision on
the facts of that. ca.se. That apart, we arc not
concerned with a simple case here but with a com
plicated 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 each case.
These letters show tho exact position
of
Sylvia. in the context of her intended marriage
with
Ahuja., and help to test tho truthfulness or
otherwise of some of the aBSertions 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
!tad made up their minds to marry, but agreed to
keep apart for a month to consider coolly whether
they real I y wa.nte<l to marry in view of the serious
consequences involved
in taking
surh a step. Roth
Nanavati and Sylvia gave evidence giving a.n im
pression that Ahuja was backing out of his promise
to marry Sy l~ia and tha.t was the main reason for
Na.na.v&ti going to Abuja's flat for an explanation.
If the Judge had read these Jett ers in his charge
and explained the implication
of the
contentll thereof
in relation to the evidence given by Nanavati and
Sylvia., it would not have been possible to predi
cate whether the jury would have believed the
evidence of Na.na.vati and Sylvia.. If the marriage
between them was a settled affair a.nd if the only
obstruction
in the wa.y
was Nana.va.ti, and if Nana
vati ha.d expressed his willingneBB to be out of
the way and even to help them to marry, their
evidence
that
Sylvia did not a.newer the <lirect
question
about the intentions of Ahuja to marry
her, and the evidence of Na.na.vati tha.t it became necessary for him to go to Abuja's fla.t to ascertain
the latter'• intentions might not ha.vc been believed
..
(I) s.c.R. SUPREME COURT REPORTS 615
by the jury. It is no answer to say that the letters
were read
to the jury at different
~tages of the
trial or
that they might have read the letters
them
selves for in a jury trial, especially where innumer
able 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 tl>ereof,
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
aho to place before them the facts and
circumstances
of the case both for and against the
prosecution in order to
he! p 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
res
pective 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
l'vidence of Puransingh in the court, and the Judge
also dealt with the evidence so elicited in para
graph 18 of his charge to the jury. This conten
tion cannot be fully appreciated unless some
relevant facts are stated. Puransingh was exa.min
ed for the prosecution as P. W. 12. He w~ q.
IHl
E.M. N.,,,,.ati
••
n. Btai1 of
Malurrahtra
Subia llao J.
1961
K. M. N anizioati
•.
Tht S1a11 of
M ah4rtZJlu1a
Subbo Roa J.
616 SUPREME COURT REPORTS (1962) SUPP.
watchman of "Jivan Jyot." He deposed that
when the aceuscd was l<'aving the compound of
the said building, he aekP,<l !1im 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 witneBB
reported this incident to Gamqevi 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, Phanea
lkar went in a jeep with Puransingh to the place
of the alleged offence. Puransingh said in hie
evidence
that he told
Phansalkar in the jeep what
the accused had told him when he was leaving
the compound of "Jivan Jyot." After reaching the
place
of the nllegod offence,
Phansalkar learnt
from a doe;tor that Ahuja was dead and he also
made enquiries from Miss Mammie, the sister of
the deceased. He did not record the statement
ma.de by Purnnsingh. But latter on between IO and
10.:io r. )!. 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 11ot recorded that Puran~ingh told Phansa
lkar that the accused told him why he had killed
Ahuja. When Phansalkar was in the witness-box
to a questio11 put to him in cross-examination he
answered
that
Pura.nsingh <lid not tell him that
h" had asked 1'ianavati why he killed Ahuja a11d
that the accus<,d rcplird that he had a quarrel with
the deeeased as the lattrr had "connect.ions" 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 gi vcn by Puransingh,
the learned Sessions J udgo proceeded to state in
his charge to the jnry :
-
(1) S.C.R. SUPREME COURT REPORTS 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 seEvants
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
de
ceased as the deceased had connections with
his wife. The ehowkidar said that he had
told this also to sub-Inspector Phansalkar.
Sub-Inspector Phansalkar said that Puran-·
singh 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
com
ing back he was with Sub-Inspector Phansa
lkar 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,
"Con
sider whether you will accept the evidence of
Puransingh or not." It is manifest from the
summing-up
that the learned
Session;; 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 con
tradiction on the mind of the jury and whether
they had not rejected the evidence of Puransingh
1961
K. M. N anavati
v.
The Slate o.f
Afah.arashtra
Subba Rao J.
1981
Ji. M. ;Var.QfJati
Y.
Tht Stnlt of
Maha1af~lrt1
S1Jbba Roe; J.
G18 SUPREME OOURT REPORTS [1962] SUPP.
because of that contradiction. If the said evidence
w~s not admissible, the placing of that evidence
brfore' the jury was certainly a grave misdirection
which must have affected their verdict. The
question is whether such evidence is legally ad
missible. The alleged omission wa;i brought on
record in the cross-examination of Phansalkar,
and,
after having brought it in, it
WRR sought to
be used to contradict the rvid(·nce of Puransingh.
Learned Attorney-General contrnds that the state
ment made by PhRnsalkar to Impector l\1oka,hi
conld be used only to contradict th<' evidence of
Phansalkar and not that of Puran~ingh 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
eaid section. He further arµucs that the alleged
omission not being a· contradiction, it could in no
event be used to contradict Puransingh. Learned
counsel for the accused, on tl1e other hand, con
tends that the alleged statement was made to a
police offieer before the investigation commenced
and, therefore, it \as not hit hy s. 162 of the Code
of Criminal Procedure, and it could be used to
contradict the e\·idence of Puransingh. Sect ion
162 oft.he Code of Criminal Procedure reads:
"(I ) N' o statement made by any person
to a Police officer in tho course of an investi
gation 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 here
inafter provided, at any inquiry or trial in
respect
of
any offence under investigation at
the time when such statement was ma.de :
(1) S,C.R. SUPREME COURT REPORTS 619
"Provided that when any witnPss is called
for the prosecution in such inquiry or trial
whose statement has been reduced into writ
ing 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
s.uch 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-examina
tion of such witness, but for the purpose
only
of explaining any matter
~eferred 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 investi
gation, the admissibility of such statement would
not be governed by s. 162 of the Code. The quest
ion, therefore, is whether Puransingh made the
statement to Phansalkar in the course of investi
gation. Section 154 of the Code says that every
information relating to the commission
of. a
cog
nizable offence if given orally to an officer in ch<tr
ge 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 Magi·
strate, investigate any cognizable case which a
court having jurisdiction over the local area with
in the limits of such station would have power to
inquire into or
try under the proTisions 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 0111 April 27, 1959,
from 2 to 8 P.M., was aq ofiicer jn charge of t4e
1961
K, M .. Vanauati
v.
The State of
Maharashtra
Subba Rao J,
'
'.
1961
K • .lvf. Nanava.ti
v.
The State of
A! aharashtra
Suhha Rao J;.
.--~·--
·-.. /
620 SUPREl\IE COURT REPORTS [1£62] SUPP.
Police-station within the meanin~ of the s<iid sec
tions. Puransi!lgh 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 harl questioned Puransingh, the
doctor and also l\Iiss l\Iammie in regard to the said
incident.
On this uneontradicted evidence there
cannot be any doubt that tho investigation of the
. offence had commenced and Puransingh made tho
. statement to the police officer in-the course of the
said investigation. But it is said that, as the infor
mation given by Puransitlgh was not recorded by
Police Officer Phansalkar'" as he should do under
s. 15! of tho Code of Criminal Procedure, no investi
gati01; in law could have commenced with the
meaning of s. 15G 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
in
formation report by tho conc0rned police officer.
If so, s. 162 of the Code is immediately attracted.
Under s. 162(1) of tho Code, no statement made by
any person to a 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 in
. vestigation at the time. when such statement was
-made. But the proviso lifts the ban and says that
when any witness is called for tho -prosecution in
: such inquiry or trial whose statement has been re
duced into 'vriting, any part of his statement, if
duly proved, may be used by the accused to con
tradict such witness. The proviso cannot be invok
ed to bring in the statement made by Phansalkar
to Inspector l\Iokashi 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
(1) s.c.R. SUPREME COURT REPORTS 621
statement made by Puransingh to Phansalkar, for
the said sta temPnt of Puransii1gh has not br'm re
duced into writing. The faint argum,·nt of Jearnml
counsel for the accused that the statcmm1t of
Phansalkar recorded by Inspector l\Io!rnshi ran ho
treated as a recorded statement of Puramingh
himself is to be stated only to be rejected, for it is
impossible to treat the recorded sta.tement of
Phansalkar as the recorded statement of Puransingh
by a police-officer. If so, the question whether the
alleged omission
of what the accuRed told
Puran:
singh 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 Cli\Se(
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 Sessiom 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
argu
ment.''
The learned Attorney-General points out that the
learned Sessions Judge was wrong in saying that
(I) [1959) Supp. (2) S.C.R. 875.
1961
K. M. Nonauati
v.
1'/ic Stoic of
ft1ah11rasl1lra
S11bba Rao J.
1911
K. ll. Nonauafi
v.
1·1u Statt of
~·.t aharaJlura
Subba Rao J,
622 SUPREME COURT REPORTS [1962] SUPP. '
no one challenged the marksmanship of the ac-
cused, for Commodore Nanda was ex11mincd 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 rc·gard 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 misdirec-
tions
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 cou-
clusion thereon.
The learned Attorney-General contends
that
if he
was right in his contention that the High
Court could consider tho evidence a.fresh and com"'
to its own conclusion, in view of the said misdirec
tion, this Court should not, in cxerci&e of its dis
cretionary jurisdiction under Art. 13G of the Consti
tutions interfere with the finding8 of the High
Court. Thero is force in this Rrgumcnt. But, ati
we have heard counsel at great length, we propoHc
to discuss the evidenc~.
We shall now proceed to consider the evi
dence in the ca.so. The ev idcncc can be divided
into three parts, namely, (i) evidence relating to
the conduct of the accused before the ~hooting inci
dent, (ii) evidence in regard to the conduct of the
accused after the incident, and (iii) evidence in
regard
to the actual shooting in tho bed-room of
Ahuja.
We may start with the evidence of the
accus
ed 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
even
ing 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
I
-(l) S.C.R. SUPI'tEME COURT REPORTS 623
suspect of her unfaithfulness to him. On the morn
ing
of April 27, 1959, he and his
wife took out
their sick dog to the Pare! Animal Hospital'. On
their way back, they stopped at the Metro Cihema
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 thesP. 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."
Sylvia 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
thou~ht that she had a
lover on the basis of a trivial circumstance of her
being unresponsive when
he put bis 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 some
body that she was unfaithful to him, this conduct
of Nanavati in Ruspecting his wife on the basis of
the ea.id circumstance does not appear to be the
natural reaction of a husband. The recollection
of her preferenoe to atoond the dinner given by
Mias Mammie to that of his brother, in the absence
1961
K. Al. Nanavat1
v.
The Stolt oj
Al aharashtr a
Suhba Rao J.
I
1961
J.:. ~\J. ,,Yanai·ati
v.
Tlv State of
J,/aha,ashtra
Suhba RaoJ.
'-.. /
-'
!
I
624 SUPREME couit'r RE:Pon.i•s (i!J62] stJi>:P.
of an oar lier suspicion or information, could not
have flashed on his mind tho image of Ahuja as a
possible lover
of his wife. There was nothing
extraordinary in
hi<> wife keeping a previous engage·
ment with Miss Mammie and particularly when she
-·could rely upon her close relations not to misunder
stand her. The circumstances under which the
confession of unfaithfulness is alleged to have been
made do not appear to be natural. This inference
is also reinforced
by the fact that soon after the
confession, which is alleged to have upset him so
much, he is said
to have driven his wife and
child
ren to tho cinema._ If the_ confession of illicit
intimacy between Sylvia and Ahuja \vas made so
suddenly
at lunch time, even if she
had purchased
tho.tickets,
it is not likely that
hewould have .
taken her and the children to tho-cinoma. Nana
vati 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
s\yine; he asked her what were tho intentions of
Ahuja and whether Ahuja was prepared to marry
her and look after the children; lie 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
•
(1) S.C.B.. SUPREME COURT REPORTS 625
to Ahuja's flat and square up the things. Briefly
stated, Nanavati, according to him, went to Abuja's
flat to ask for an cxplanatinn for seducing his wife
and to find out whethPr he would rna1 ry Sylvia and
take care of the children. Is it likely that a per·
son, situated as Xanavati was, wpuld haYe reacted
in the
manner stated by him? It is true that
different persons react, under similar circumstan
ces, differently. A husband
to whom his wife con
fessed
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
in
tentions, 'Ind, 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
ap<J.rt, it is clear from the
evidence that Ahuja and Sylvia had decided to
marrv and, therefore, no further elucidation of the
intention of Ahuja by Nanavati was necessa1y at.
all.
It
is true that Nanavati says in his evidence
that when he asked her whether Ahuja was pre
pared to marry htr and look after the children, she
did not give any proper reply; and Sylvia also in
her evidence says
that when her husband asked
her whether Ahuja was
williug to murry her and
look after the children she avoided answering that
question as she was too ashame<! to admit that
Ahuja was trying to back out from the promise to
marry her. 'fhat this version is not true is amply
borne
out by the letters written by
Sylvia to
1961
K. M. Narwoat1'
v.
The State of
Maharashtra
Bubba Rao J.
Ilal
f(,M, N-
v.
n, s..u •!
AlaM•aaltk•
llN•• Bu J,
626 SUPREME cou.aT REPORTS (1962) SUPP.
Abuja. 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 mar'ry and a bout 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 bet
ween 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 jeal.
ous 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
h!Ml planned to marry. Whatever ambiguity there
may be in these word~, 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,
t.here will be no surprise afterwards".
'I
I
(1) C.S.R. SUPREME COURT REPORTS 627
This letter clearly demonstrates that she agreed
not to see Ahuja for a month, 1•ot because that
Abuja r11fused to marry her, but because it w&B
1ettled 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 th·"Y really loved
each other so much as to marry. In the cross
examination she tried to wriggi e out of these
letters and sought to explain them away; but the
clear phraseology
of the last letter
;;peaks for itself,
nnd her oral evidence, contrary to ;he contents of
the letters;must be rejected. We have no doubt
that hflr evidence, not only in rega!'d to the quPs
tion of marriage but also in regard to other
matters, indicates that having lost her lover, out
of necessity or out of deep penitenc~ for her past
misbehaviour, 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 th1tt that w·J11 the rei; wn why Nana
vati wanted to visit Ahuja to ask him about his
intentions. We cannot visualize Nanavati as 11.
romantic lover determined to immolate himself to
give opportunity to his unfaithful wife to st11rt a
•ew life of happiness and Joye with her paramour
after convincing him that the ,mly llOnourable
uourse open to him was to m11.rry her and take
oTer hi1 children. Nanavati waa not ignor11nt of
the ways of life or so gullible 11.a to axpcct any chiv
alry or honour in a. man like Ahuja. He i1 an
experienced Naval Officer and not a 11entimental
hew of a novel. The reason therefore for Nanavati
going to Ahuja's flat must be somet.hing other than
asking him for an explanation and to ascertain his
intention
about marrying
hi1 wife and looking
after the children.
1961
E.. M. N anaoati
••
Tiu St•'• •f
Jld..-ulttra
Su/Jba lie• J.
t
I
t
I
I
f
I
l
l
1961
K. M .-}ltz11.avati
v.
Thi sw .. f
}.fo/iarashlra
.---
Subba Bao J.
-..Jtl;·~
628 SUPREME COURT REPORTS [i962J SUPP.
Then, according· to Nanavati, he drove his
wifo
and children to cinema, and promising them tO come and pic_k 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 Ms ship to get medi
cine for his sick dog. Though ordinarily this
statement would be insignificant, in the context of
the conduct - of -N anavati, 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 went to his ship before return:
ing home. It is not even suggested that in the ship
there was a dispensary catering· medicine for
ani
mals. 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 subsequPnt 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 ~ix rounds, ht; imme
diately 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 bis children. But he did not shoot himself
·
either before or after Ahuja was shot dead. The
taking of the revolver on a false pretext and
load
ing 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 Abuja's office. - At
. Abuja's office he went in keeping the revolver in
the car, and asked Talaja, the Sales l\Ianager of
t
(I} S.C.R. SUPREME COURT REPORTS 629
Universal Motors of which Ahuja was the proprietor
whether Ahuja was inside. He was told
that Ahuja
was
not there. Before leaving Abuja'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
state
ment that he kept '•he revolver in the car when he
entered Abuja's office. On the basis of this state
ment, it is contended that if Nc1navati had intended
to shoot Ahuja he would have taken the rovolver
inside Abuja'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 whethet· he had left the office for his
flat. Whatever
it may be, from Abuja'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
<'ar in the house com pound
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
th'l doorbell; when a servant opened the
door, he asked him \hether Ahuja was in. Having
ascertained
that Ahuja was in the house, he walked
to his bedroom, opened the door
and
went in shutt
ing the door behind him. Thi~ conduct is only con
sistent with his intention to shoot Ahuja. A person,
who wants to seek an interwiew with
another in order
to
get an explanation for his conduct or to ascertain
his intentions in regard to hi8 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 hd1ind. This
was the conduct
of an
<'nraged man who had gone
to wreak ve11geance on a person who did him ~
19~1
K. M. Nanavati
v.
The Sla;e of
MJ/iarlllhtra
S.Ub<I Hao J,
IHI
¥,JI, N-ti
·v.
Tu Stolt •f
Meh.uldr•
630 SUPREME OOURT REPORTS [1962] SUPP
grieTO•s wrong. Dut it is said that he had take:a
the loaded revolTer with him as his wife had told
him
that Ahuja might
shoot him. Earlier in his
cross-examination he 1aid that when he told her
that he mu~t go and settle the matter with th•
"swine" 1he put her hand upon his arm and said,
"No, No, you mu•t not go t.herc, don't go there, he
may ahoot you." SylTia in her evidence corroborates
his evidence in thi1 respect: But Sylvia has been
cross-examined and she said that she knew that
Ahuja had a gun and she had seen it in Aahoka
Hotel in New L'.:ilhi and that 1he bad not seen any
reyo]ver at the re1idenoe of Ahuja at any time. It i1
also in evidence that Ahuja had no licence for a
revolver and JtO revolver of his was found in hi1
bed-room. Jn the ~ircumatances, we must say that
Sylvia was only attempting to help Nanavati in hi1
defence. We hink that the evidence of Nanavati
supported by that of Sylvia was" a collusive attempt
on their part t" explain away the otherwise serious
implication of Nanavati carrying the loaded revolver
into the bed-room of Ahuja.
That part of the
version of the
accused in regard to the manner of
his entry into the bed-room of Ahuja, was also
supported by thi ev!dence of Anj:mi (P.W. 8), the
hearer, and De-.,pak, the Cook. Anjani opened the
door of the flat
to Nanavati at about
4-20 P. M. He
served tea to hi~ master at about 4-15 p, M. Ahuja
then telephoned to ascertain the correct time
and then went to his hed-room. About
five minutes
thereafter
thi~ witness went to the bed-room of hie
master to bring back the tea-tray from there, and
at that time his master went into the bath-room for
hiH bath. Thereafter, Anjani wt·nt to the kitchen
and was preparing tea when he heard the door-bell.
He then oper,ed the door to Nanavati. This
evidence shows
that at about
4-20 P.M. Ahuja was
taking hie bath in the bath-room and immediately
thereafter Nanavati entered the bed-room. Deepak,
the cook of Ahuja, also h<'.ard the ringing of the
(1) S.C.R. SUPREME COURT REPORTS 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 master 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 wit
nesses
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
S1Dall 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
pnne.
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 in·
timacy 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 Abuja 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
1901
K.M. N_.;
'· Tiie Blafl t
Mdarultlr•
Subb<R .. J.
19~1
K'. M. ;Vanau1ti
v.
I Ju Statt of
Atoluzrasli11a
Mbo Rao J.
6:l2 SUPREME COURT REPORTS (1002] SUPP.
seconds thereafk'r sounds were heard by Miss
Mamrnio, tht> sister (If the deceased, and Anjani,
a "crvant; that wht•n Miss Mammie and AnjlWli
enterer! thn bed-room, they saw the accused with
the revoh·er in his hand, nnd 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 ancl indeed in itself ordimirily sufficient to
implicate him in the murdor of Ahuja.
Now we shall scrutinize the evidence to ascer
tain the conduct of the accused from the time he
was found in the bed room of Ahuja. till he surren
clcn·d himself to the polic('. Immediately after
the shooting, Anjani and Miss 1 ammio went into
the bed-room of the de• easo<l. Anjani i.ays in his
<'vi.Jenee that he saw the accused facing the direction
of his master who wo.s lying in the hath-room; that
at that. time tho accuRe<I was having a "pistol" in
hi~ h1111d; that when he opened the door, the accu
sed turned his face towards this witness and si;ying
that nobody should come in his way or else he
would
shor1t at thorn, he brought. his
"pistol" near
the chest of tho witness; and that in tho meantime
Miss Mammie came there, and sg,id 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 con
tradictions bet .vecn what was stated by Miss
Mammie and what was stated by Anjani. We do
not see any material contrndictiollfl. Miss Mammie
mig-ht not have beard what tho accused said either
beeauee she came there after the aforesaid words
were uttored or because in her anxiety and worry I
abe did not hear the words. The different versions
-
(1) S.C.R. SUPREME (',OUR.T REPORTS G33
given by the two witnrsRcs in regard to what Miss
Mammie saicl to the accused is not of anv
importance as the import of what both ~f
them said is practically the same. Anjani opened
the door
to admit Nanavati into the flat and when he hertrd the noise he must have entered
the room. Nanavati himself admitted that he saw
a f'ervant 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 reall.v
3.ffect their credibility. In effect and snbstrtnce both
saw Nanavrtti 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 an<l not of one who had shot
the dece:i,sed hy accident. If the accuse<l hrtd shot
the diseased by accident, he would have been in a
depressed
and apologetic mood and would
haye
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 threatenPd Anjani with
his rnvolver. Learned counsel for the accused argues
that in the circumstances in whirh the accused was
placed soon after
the accidental
shooting he could
not h~ve convinced Miss Mammie with any amount
of explanation and therefore there was no point in
seeking
to explain his conduct to her. But
whl'ther
Miss llfammie would have been convinced by his
explanation or not,
if Nanavati had shot the
decea·
sed by accident, he would certainly have told her
particularly when he knew her before
and when she happend to be the sister of the man shot at. Assum
ing that the suddenness of the 9.ooidental shooting
had so benumbed his senses that he failed to explain
the circumstanres
of the shooting to her, the same
cannot be said when he
met
others at the gate.
After the accused had COIJle out of the flat of Ahuja,
1961
It. 11!. A
1
onovati
v.
Tht Stat1 of
bf oharashtra
Subba Rao J.
1961
K. M. N onaraJi
v.
Tht Statt of
MaA.r ...... ra
S•lla RM J,
634 SUPREME OOURT REPORTS [1962] SUPP.
he got into his <;ar 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
bad 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 a.way 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 Anja.ni was Rtanding in front c1f the
car
and Deepak was
a few feet away. Nanavati
says in hie evidence that it was not true that he
told Puransingh that be had killed t.he deceaRed a.s
the latter had "connection" with his wife and that
the whole i<lea was quite absurd. Pura.nsingh is not
shaken in his cross-examination. He is an indepen
dent witness; though he is a watchman of Jivan
Jyot, he was not an employee of tho deceased.
After the accused left the place, this witness, at the
instance of Miss Mammie, went to Gamdevi Police
Station and report{'d the incident to the police
officer Phansalkar, who wa.R in charge of the police
station at that time, at a.bout 5-5 P.M. and came
a.long with the said police-officer in the jeep to
Jivan Jyot at about 7 P.M. he went a.long 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 evidcnc<J, We do not se.,
any force in this contention. His statement was
regarded on
the night of the incident itself. It is
impossible
to conc,eive that Miss Mammie, who must
have
had
a. shock, would have been in a position
to coach him up to give a. faJs3 statement. Indeed,
her evidence discloses that she was drugged to sleep
that night. Can it be so1.id that these .two illiterate
-
....
(l) S.C.R. SUPREME COURT REPORTS 635
witnesses, Anjani and Deepak, would have persuad
ed 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 ha,d
all colluded together and were prepared to speak to
& false case, they could have easily supported
Puransingh by stating that they aiso heard what the
&ecused told Puransingh. We also do not think that
these two witnesses are so intelligent as to visualize
the possible defence and beforehand coached
Puransingh to make a fn.Jse 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 &
hardened criminal and must have had a moral con
viction that he was justified in doing what he did.
It was quite natural, therefore, for . him to con
fess 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 oar
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 a.Jong with him to
the
police station, but the constable told him that
as he was on duty, he could not follow him. This
1941
K. M. Nanav•ti
v.
Thi Slate of
Mahartuhtra
Subba Rao J.
!
\.
!
fl
636 SUPREME COURT REPORTS [l!l62J SUPP.
1961 is a small incident in itself, but it only shows that
K. JJI. Nana'"ti the accused was anxious to surrender himself to the
The siate of police. This would not have been the conduct of
Mahaui-<ht,a . the accused, if he had shot another by accident,
. Subia Rao J. --·· 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 accus·
eel went to the house of Commander Samuel, the
Naval Provost Marshal. What happened between
the accused and Samuel is stated by Samuel in his
evidence
as
P.W. 10. According to his evidence, on
· April 27, 195!), at about 4-15 P.~I.. 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
mad near the band Rtand. The accused
came up to the window and he was in a· dazed
condition.
The witness asked him .what had
happen
ed, and the accu~ed told him."I do not quite know
what happened, but I think I have shot a man."
The witness asked him how it happened, ~nd the
accused told him that t,he man had seduced his wife
and he would not stand it. When the witness asked
him to. come inside and explain everything calmly,
the accused said "No, thank you, I must go", "please
tell me where I should go and report". Though he
asked him again to come in, the accused did not
-go inside and, therefore, this witness instructed him
to go to the C.I.D. Office and report to the Deputy
Commissioner Lobo. The accused asked him to
phone to Lobo and he telephoned to Lobo and told
him that an officer by name Commander. Nanavati
was involved in an affair and that he was on the
way to report to him. Nanavati in his evidence
practically corroborates tho evidence
of Samuel.
Nanavati's version in
rPgard to this incident is as
follows :
"I told him that something terrible had·
. )lappened! that I did not know quite what
(1) S.C.R. SUPREME COURT REPORTS 637
had happened hut I thought I had shot a man.
He asked me where this
had happened. I
told him
at Nepean
Sea Hoad. He asker! mo
why I had been there. I told him I went
there because a fellow there
had
seduced my
wife and I would
not stancl 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. Cc,mmandPr ~amuel 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,
Somuel did
not say that. But substantially both of
them say that though Samuel asked Nanavati more
than once
tci get inside the house and explain to
hini everything calmly, Nanavati did not do
so; l•o1 h 'f th< m also deposed that the accused told
Samuel,"! do not quite knew what happened but
I think I hav<> shot a man." It may be mentioned
that t:larnuel is a Provost Marshal of the Indian
navy, and he and the accused are of the same rank
though 1·he accus<'d is senior to Samuel as Cornman·
der. As Provost Marshal, Samuel discharges police
duties in
the navy.
Is it probable that if the decea
sed was shot by accident, the accused would not
have stated that fact to this witness? Is it likely
that he would not l>ave 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
him
self ? The only explanation for this unusual conduct
on
the part of the
9.Ccused is that, having commit
ted the murder, he wanted to surrender himself to
1961
K, Jr!. N anauati
'l'ht Seate of
Maharas/Ura
Suhha Rao J.
!
f
1961.
r. J,l. Nan~v~ti ·
~ v.:
Tn. State of
M ahartUhtra
.. ,.,, ---r-,-.,,--,·---~-,,--- ~.---r-..- . .-..-_,_,...,~,..,...,-, , ... .,...;
638 SUPREJu COURT REPORTS {1962] SUPP.
''"~' ' ,,,,:~ '."7 "T 1,',_,,,-.,;~' l.-.. ~"--'~'"-.,~- •• ~. ~
the police'and .to make a clean breast of everything.
w.ha~ is mb:e. when he was asked directly' what had
h~pperni!1,he' to]d him "l,do)10t· quite know_ what
~\lppened but,IJh.ink:I h!Lve·:shot,11 man',' .. : .When
·s.
1
-
1.-aa-• .T.. -h~ wl.ls .. further .. a~ke4 how: it happened, that is, how
he,_shot .th~ man he sai thaytheman had. seduced
his wife
and that he
would not. stand 'for it .. Jn the
I
. ~oli'feifl!is'two_answers .. re~d. 'along_ with.tho ques
tion~ p,Ut. to him by,Sa~ud. only J'!le:m that,;,aS t~e
deceased had seduced hrn wife; the accused shot him
as
he' would not stari_d for it,.'.Jfre:illy
_theaccused
s1!ot the deceas'ed by acoidefnt; .. why _did·. he _pot say
~hat 'fac~'. to· his)''c9l~eague;: parti9ulai:ly ·when· it
~gutd'notJmly be his_,'defep.ce;:•ifiprosecuted, but
jt wotild"pu~ a ~iffei1mt complexi~ri to his' act in the
eye~ ofhis"ccilleague;·
0
Btit'strong teljanci~ iii placed
ori'what' this witness'. stated in'. the''. cross-exariiina'
tiob.'.ci:iz::
"rJ:i~rird'.the;·:word :
fight'. from the' ·accu
sed",
:'"I heard some other words from the'. accused
but·r cciiild not niake-out a' sense >out
. of' these
words". Learned ·counsel for· 'the accused contena3
'that'c'this'
~ statement"'shows
' that 'the : accused
:mentioned'
to
. Samuel:: that -the shootini: . of the
dt)ceased jvas in a fight. It is ~ot po~sible to build
'upon•. such )lender 'foundation that the: accused
;explairie_d to. Samuel that" he ~hot the· de(;eased· by
-acpident.iri'11 slrriggle.' 'The_'Btatement in· the· croas
·exan;iinationappearii'to·us
to_ bi: an··
attempt onlli.e
·part. of this .witness to ,help hi~ golleague by saying
:something whfoh may fit _in the scheme_ of his de
-fence,
though
at the same'time ··ho.is not willing to
lie:deliberatelyin'the 'witness: box; for he. clearly
· ·sa.y_il that'_he 'iiould riot make out: the· sense,. of ·the
·w-ords'spoken'alOng·:with 'the weird ·'.'fight:'. This
'vague' statement of this·witnesli; without particulars,
'cannot detract from'
the' clear.·evidcnce given- by him ill the 'exaniinati6n-in-chief. · · ·. . . _.. __
-' .. 7•;•::1·-..... _.----.• ,,,,'.' ~.,,_f"'"'·:· ,~---·-:--· ,-----·-,;
_.:;,.;. _ '\VJia~ Nanavah said to the· question· put ;:l;iy
· the Sessions Judge· under s. 34! of. the Code of
'Crimillal Procedure supports Samuel's version. The
'
(1) S.C.R. SUPREME OOURT REPORTS 639
following question was
nut to him by the learned
Sessions J tldge : •
Q.-It is alleged against you that there
after 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 vou shot a man as he had' se
duced your wife which you could not stand
anrl that on the advice of Commander Samuel
you thPn 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 questions 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, Super
intendent 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 charge of the articles and to
investigate the
case.
K. lJL. Nanaaa1i
v.
Thi S1at1 of
MalusraJhlra
Subia Rao J.
1961
K . .!I. N onarati
v.
Tf.e Stale of
jfaharashtra ·
Subba RaQ J.
610 SUPREME COURT REPORTS [l!lu2] i:iUPP.
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
he. had shot a man. This evidence obviously can
not 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 tho shooting of Ahuja
to the mo
ment he surrendered himself to the police is incon
sistent with thl· defence that the deceased was shot
by accidetlt. Though the accused had many oppor-
. tunities to explain himrnlf, he did not do so; and
he exhibited the attitude of a man who wreaked
out hil! 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-rnom 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 Setal
vad Road, Bombay. Ahuja was staying on the
first floor of that building. . As one goes up the
stair~, there is a door leading into the hall; as one
. enters the hall and walks a few feet towards tho
north he reaches a door leading into the bed-room
of Ahuja .. In the bed-room, abutting the southern
wall thflre 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
( l) S.C.R. SUPREME COURT REPORTS 641
wall , above the C()mmode 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 tbe evidence
of Miss
Mammie, and she has not been
crofs-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
oft.he bath-room between the commode and the
wash-b111in. Between the bath-tub and the com
mode a pair of spectacles was lying on the floor
and there were also two spent bullets.
One chappal
was found between the
commQde and the wash
basin, and the other was found in the bedroom.
A towel was found wrapped arround the waist
Qf
the deceased. The floor of the bath-room was
blood
stained. There was white handkerchief and bath
towel, which was bloodstained lying on the floor. The
western wall was found
to be bloodstained 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
fr<'m the inner side. The blood on
the wall was lit 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 tho bullets had hit any surface. (See
the evidence
of Rashmikant,
P.W. 16)
On the dead-body the following injuries were
found :
( l) A punctured wound ( .x l'' x ~best
cavity deep just below and inside the mner
11'1
K.Jl. N-<li
••
ThtBt<J• ef
Mobraklt•
B•lb• llot J.
11#1
}(.JI. Na..-i.-
•·
Tiu SWll• of
M-.. llr•
Suba RaoJ.
M2 SUPREME OOURT REPORTS (1962] SUPP.
end of the right collar bone with an abrallion
collar on the right side of the wound.
(~) A lacerated puncture'.!. wound in the
web between
the ring finger and the little
finger
of the left hand i" x i" communicating
with a punctured wound i" x r on the palmar
a1pect of the left hand at knuckle level bet
ween the left little and tho ring finger. Roth
the wounds were communicatin!1'·
(3) A lacerated ellipsoid wound oblique
in the left parietal region with dimensions
l !" x ( x sku 11 deep.
(4) A lacerated abrasion with carbona
ceous tatooing l" x f" at the distal end of the
proximal interphalangeal joint of the left
index finger dorsal aspect. That means at the
first joint
of the
cre&11e of the index linger on
its dorsal aspect, i.e., back a11pect.
(5) A lacerated abrasion with carbonaoe
ous tatooing r x l" at the joint level of the
left middle finger dorsal &Bpect.
(6) Vertical abrasion inside the right
1houlder blade 3" x I" 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 tae
front of the piece of the breast bone (Sternum)
upper portion right aide <!entre with dimen
eions ( x i" and at the back of the bone there
was a lacerated wound accompanied by irre
gular chip fracture corresponding to external
injury No. I, i, e.., the punctured wound chest
cavity deep. Same wound continued in the
contusion
in area
3" x l( in the right
Jun11; upper lobe front border middle portion
front and back. Extensive clots were seen
•
I
,
•
(1) S.C.R. SUPREME COURT REPORTS 643
in the middle compartment upper and front
part surrounding the laceration impregnated
pieces
of fractured bone. There
was exten
sive 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 lacera
ted wound 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 traot 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 describes
the wound as ''ellipsoid and oblique". He 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 exami•
nation 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
ll~l
K. M. N anaoati
V,
The Stale of
M.haraslrtr«
Subb• Rao J,
lHl
K,N. }(.....,,,;
••
n.s .. ,, of
JlalwtiAlr.
644 SCTPRF!ME OOURT REPORTS (1962) SUPP.
Criminologist, who was examined as P. W. 4,
describes the revoler and the manner of its work
ing. The revolver is a semi-automatio one and it ie
six-chambered. To load the revolver one has to
release the chamber ; when the chamber is released,
it comes 011t on the left side. Six cartridges can
be inserted in the holee
of the chamber
and then
the chamber is pressed to the revolver. After the
revolver is thus loaded, for the purpose of firing
one has to pull the trigger of the revoler ; 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 repeat-
ed 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 tho chamber
and oocking, and the other,
releasing of the ham-
mer. Because of this double action, the pull must
be fairly strong. A pressure of about
20 pounds
is required for pulling the trigger. There is con
troversy on the question of pressure, and we shall
deal with this at the appropriate place.
Of the three bullets fired from the said revol
ver, two bullets were found in the bath-room, and
the third was extracted from the back of the left
shoulder blade. EX8. F-2 and F-2a are the bullets
found in the bath-room. These two bullets are flatte
ned and the copper jacket of one of the bullets, Ex.
F-2a, has been turn off. The third bullet is marked
as Ex. 1<'-3.
With this background let us now consider the
l
-
I
•
evidence to ascertain whether the shooting was ~
intentional, &8 the prosecution &Vere, or only n
I .
l
(I) S.C.R. SUPREME COURT REPORTS 645
accidental, as the defence suggests. Excepting Nana
vati, the accused, and Ahuja, the deueased, no other
person was present in the btter's bed-room when
the shooting took place. Hence the only person
who can speak to the sa.id incident i:1 the accused
Nanavati. The version
of Nanavati, as given in
his evidence may be stated thus :
ff3 walked into
Abuja'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, "Pere you going
to marry Sylvia and look after the kids?" Ahuja be
came enraged and said in a nasty r::ianner, "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 accu
sed became angry, put 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 preven
ted the deceased from g-1tting it. He then whipped
out the revolver an'.! told the decea8ed to get back.
The deceased was very close to him and suddenl.r
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 accuaed "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
des
perately to free his hand from the grip of the accu-
110d by jerking it around. The deceased had a very
strong grip and he did
not let go the grip.
Dt1r
ing the stuggle, the accused thought that two shots
went
off: one went first and within a few seconds
another.
At the first
shot the deceased jm1t ·kept
1961
K. M. Naruuiati
••
The Blatt of
Ma/Jarasht1a
SuHa Rao J,
1961
X.M. NOMoaJi
••
n. Sto11oj
MtWv.,/Wa
Subl>a Rao J.
646 SUPREME COURT REPORTS [1962] SUPP.
hanging on to the hand of the accused, but sudden
ly he let go his hand and slumped down. When
the deceased slumped down, the accused immedia
tely 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 tho revolver,
the accused trying to keep it and the deceased
trying to snl ch it, the deceased cat-0hing hold of
the wrist of the right hand of the accusetl and twist.
ing 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
ca.used 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 un
helpful attitude in the court :
(
l)
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
beca.mJ we were shuffiing during the struggle
in the tiny ha.th-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 ahot. My impression is that I heard
two shots.
(7) I do
not remember the
detaile of the
struggle.
(8) I do not give any thought whether
iJie shooting was an accident or not, because
-
.fl
(1) S.C.R. SUPREME COURT REPORTS 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.
(IO) 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 had
his grip on my wrist.
(12) I do not remember feeling any blows
from the deceased by his free hand during
the struggle ;
but he may have hit me.
He gives only a vagua 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 bed
room 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.
Assu
ming 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 accidentally
pull the trigger three times and release
it three
times when already Ahuja was holding his wrist and
when he was jerking his hand to release,
it from the
grip
of Ahuja
? It also appears to be rather curious
that both the combatants did not use their left hands
in the struggle.
If, as he has said, there was a
struggle between them and he pushed Ahuja into
the bath-room, how was it that the towel wrapped
around the waist
of Ahuja was intact
? So too, if
there was a struggle, why there was no bruise on the
hotly
of the accused ? Though
Nanavati says ·that
J98f]
K. 11. No'4av«ti
••
The S:.1,.f
Maharas4tra
Subba &; J.
,,.,
1'. II. X...uati
'· n.aw. •!
M.i.naslotra
Soii• Rao J.
648 SUPREME OOURT REPORTS (1962] SUPP.
there were some "roughings" on his wrist, he ha.d
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. Tho
ugh there was blood up to three feet on the wall of
the bath-room, there WM nut 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 wont off, we find three
spent
bullets-two of them were found in the
bath
room and tho 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
fur
ther struggling or pulling of the trigger by reflex
action. Dr.
Jhala
says that the injury on the hea.d
of the victim was such that the victim oould not
have been able
to keep standing and would have
dropped unconscious immediately and
that injury
No. 1
wns 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. I or injury No. 3
and
that either of them individually would be
suffi
cient to cause the victim to slump down. It is, there
fore, impossible that after either of the said two
injurios was inflicted, the deceased could have still
kept on struggling with the accused. Indeed, Nana
vati says in his evidence that at the first shot the
deceased just kept on hanging to his hand, but sud
denly he let go his grip and slumped down.
The only circumstance
that could he relied upon
to indicate
a struggle is that one of the chappa.ls
of the deceased Wll8 found in the bed-room whi
le the other was in the bath-room. But that is con
sistent with both intentional and accidental shoot
ing, _for in his anxiety to escape from the line of
(1) S.C.R. SUPREME COURT REPORTS 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 witf. inten
tional shooting than with accidental shooting, for
if there had been a struggle it was more likely that
the spectacles would have fallen off and broken in
stead of their being intaet by the side of the dead
botly. The condition of the bed-room as well as of
the bath-room, as described by Rashmikant, the
police-officer who made the inquiry, does
not show
any indication
of struggle or fight in that place.
The version of the accused, therefore, is brimming
with improbabilities
and is not such that any court
can reasonably accept it.
It is said that if the accused went to the
bed
room of Ahuja to shoot him he would not have
addressed him by his first name "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
doee
.not indicate any sentiment of affection or goodwill
towards the deceased-admittedly he had none to
wards him~·but only an involuntary and habitual
expression.
It is argued that Nanavati is a good shotNanda., D. W. 6, a Commodore in the Indian Navy,
certifies
that he is
a. good shot in regard to both
moving and stationary target~--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
deeperate attempts the de
ceased must have made to escape. The first shot
might have been fired and aimed
at the chest
as
1961
f(. Ms N GfUJVtJJi
Y,
The State of
MoluJraslttra
~ubha Rtie J,
/~6l
K. JI, ./li•UHli
••
T~ ~'"'' •f
MM.rashtr•
650 SUPREME COURT REPORTS [1962] SUPP.
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 revolcr accidentally, there
is the evidence of Bhanagay,
P. W. 4, who is a
Government Criminologist. The Deputy Commis
sioner of Polioe, Bombay, through Inapector Ra.ngne
kar sent to him the re.,-olver, three empty cartridge
cases, three bullets and three live rounds for his
inspection. He has examined the revolv
0
er and. the
bullets which are marked M 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 pre88ure of 28
pounds is required and that for each shot the
trigg
er 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
wea.pon of the type we are now concerned
within about 2
to 3 inches of the muzzle of the
wea
pon and the blackening around the wound described
a.s carbonaceous tattooing could be caused from
such a revolver up to about 6 to 8 inches from the
muzzle.
In the
croas examin! ion he says that the
flattening
of the two damaged bullets,
Exe. F-2 and
F-2a, could have been caused by their hitting a
flat hard surface, and that tho tearing of the copper
jaoket
of one of the bullets oould have been caused
by a heavy impact, suoh as hitting against a hard surface; it may have also been caused, according to
him, by a human bone of sufficient strength pro
vided the bullet hit.a the bone tangently and passes
of without obstruction. These answers, if accepted -
we do uot see any reason why we should not accept
them-prove that the bullets, Exs. F 2 and l<'-2a,
could have been damaged by their coming into
contaot with some ha.rd substance such as a bone
He says in the cross-examination that one 'strugg
ling' will not cause three automatic 1ings and tha
..
(1) S.C.R. SUPREME OOURT REPORTS 651
even if th3 struggle continues he would not expect
three rounds to go off,
but he qu
llifies his state
ment by adding that this may happen if the person
holding the revolver "co-operates so far a.a the ref
lex 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 ia
strongly relied upon by learned counsel for the ace·
used in support of his contention of accidental fir
ing. He argues that by unconscious ~1 Jlex pull of
the trig£:er three times by the accus• three shots
could have gone off the revolver.
But the
possibi
lity of three rounds going off by three separate ref
lexes 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 ~truggle as described by the accused is highly
improbable,
if not impossible. We shall consider
the evidence
of this witness on the question of
richocheting of bullets when we
deal with indivi·
dual injuries found on the body of the deceased.
This witness is not a doctor but has received
training in Forensic Ballistics (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 Commis
sioner's Office, and he is a Government Criminologist
and ha.a been doing this work for the last 22 yea.rs;
he says that he ha.a also gained experience by con·
ducting 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: (l} Three used bullets,
Exe. F-2, F-2a. and F-3, were shot from the revol
ver Ex. B. (2) The revolver ca.n be fired only by
1961
K. JL. Naavati
v.
T/r, St•t• of
Malraras/"1•
Suhha Rs1 J.
1901
K. M . .N anav1li
••
Tltt State ,,J
Mdaraslatr«
Subb Rao J.
852 SUPREME OOURT REPORTS [1982] SUPP.
pulling the trigger; and for shoot.ing thrice, a per
son shooting will have to gi;e a deep pull to
the trig5!'.r thrice and release it thrice. (3) A
pressure
or 28 pounds is required to pull the
trigger. (
4)
One "struggling" will not cause three
automatio 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 fointed out
the fifth point is only a theoretic& possibility
based upon two hypothesis, namely, (i) the struggle
continues for a considerable time, and (ii) tho per
son holding the trigger co-operates by pulling it
thrice
by reflex
act.ion. This evidence, therefore,
establishes
that the bullets went off the revolver
brought
by the
accused-·indeed this is not dis
puted-and that in the course of the struggle of a
few seconds as described by the accused, it is not
po8Bible that the trigger could have been accident
ally pulled throe times in quick succession so as
to discharge three bullets.
As regards the
preBSure required to pull
the
trigger of Ex. B, Triloksing, who is the .Master
Armourer in the Army, deposing 1111 D.W. ll, doos
not accept the figure given by the Bhanagay and
he would put it at 11 to 14 pounds. He does not
know the science of ballistics and he is only a
mechanic who repairs the arms. He has not exa
mined the revolver in question. He admits that
a double-action revolver requires more preBSure
on the trigger than single-aotion one. While Major
Burrard in his book on Identification of Fire-arms
and Forensic Ballistics says that the normal trigger
pull in double-action revolvers is about 20 pounds,
this
witneBS reduces it to ll to
14 pounds; while
Major Burrard says in hie book that in all com
petitions no test other than a dead weight is &e·
oepted, this witneBS does not agree with him. His
opluion is based on the experimenU! performed
(1) S.C.R. 2UPREM:lll COURT REPORTS 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
.Surrard,
we aha II 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 8.t the most evidence of smudging and
tattooing are seldom present."
},f trkeley on lnveBtigation of Death, P. 82 :
"At a. distance of approximately over 18"
the powder grains are no longer carried for·
ward and therefore the only effect produced
on the skin surface is
that of the
bullet.·•
Legal Medicine Pathology and Toxicology by Gonzales,
2nd Edn., 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 tr~ces of blackening are to be
seen but it is not always possible to recognize
unburnt grains of powder even at ranges of
one and a half feet."
Gl!tister in his book on Medical Jurisprudence and
Toxicology, 1957 Edn., makes a statement that at
a range of a.bout 12 inches and over as a rule there
will not be marks
of carbonaceous
tattooing or
lHl
KM. N-•
v:
TlllSW. of
Mahtlrashlr•
1151
K.M. No
v.
Th• SIU. •f
M alwuhlr•
6154 SUPREME COURT REPORTS [1962] SUPP.
powder m&rks. But the Hme author in an earlier
book from which
we have
already quoted puts it at
18 inohes. In the book "Reoent Advances in Forensic
Medicine" 2nd Edn., p. II, it is stated :
"At ranges beyond 2 to 3 feet little or
no trace
of the powder
can .be observed."
Dr. Taylor's book, Vol. I, ll th 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 cliarring 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 tho muzzle. Dr. Jhala,
P.W. 18, says 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 fqund in Glaister's book, namely,
"when the range reaches about 6 inches there is
usually an absence of burning although there will
probably be som11 evidence of bruising and of
powder mark, at a ranga of about 12 inches and
over the skin around the wound does
not
as a rule
show evidence
of powder marks.'' In the
cross
examination this witness says that he does not aee
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 says that in the matter of tattooing, there
is no difference between that caused by smokeleBR
powder used in the cartridge in question, and ble.ok
powder used in other bullets, though in the case of
the former there may be greater difficulty to find
( 1) S.C.R. SUPREME COURT REPORTS 655
· out whether the marks a.re present or not iu &
wound.
Having regard to the aforesaid impressive
array of authorities on Medical Jurisprudence, we
hold, agreeing with Dr. Jbala, that carbon11.ceou1
tattooing would not be found beyond range of 11~
inche1 from th~ mouth of the muz11.:le of tlte weap•
on. We also hold that charring around the wound
would occur when it ia caused by a revolver liko
Ex. B within &bout. 2 or 3 inches from the muzzle
of the revolver.
The presence and nature of the 11 brasion
collar around the iJ;1jury indicates the direction
and also the velocity of the bullet. Abrasion
collar is formed by the gyration of the bullet caus
ed 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 perpendioular, the abrasion collar
will
not be around the entire wound
(See the evi
denoe of Dr. Jhala and Dr. Baliga).
As regards the injuries found on the dead
body, two doctors were examined, Dr. Jhala, P. W.
18, on the side of the prosecution, and Dr. Baliga,
D. W. 2, on the side of the defence. Dr. Jhala ia
the Police Surgeon, Bombay, for the last three years.
Prior to that he was a Police Surgeon in Ahmadabad
for six years. He 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 qualifica
tions and experience but also by reason of having
performed the autopay on the dead-body. Dr.
Baliga is an F. R. C. S. (England) and has been
practising as a medical wrgeon since 1933. His qua
lifications and antecedents show that he is not only
, '\II experiwced surgeon but al10 has been ta.king
lHI
K. M. /(tmacli
••
n, 8l01t •!
MaA•-.,htr•
SuijQ Roe J,
JMJ
K.M.N.,.,..,;
v.
T"6 S1.i1 of
M"""'..Atr•
.IWh a.. .J.
656 SUPREME COURT REPORTS [1962) SUPP.
interest in extra-surgioa.l activities, social, political
a.nd educational. He sa.ys that ho has studied
medioa.I literature rog.i.rding bullet injuries and that
he is familar with medico-legal aspect of wounds
including bullet wounds. He was a. Casua.lity
Medical Officer in the K. E. M. Hospital in 1928.
He ha.d seen bullet !injuries both a.s Ca.sua.lity
Medical
Officer
and later on as a surgeon. In the
or088·examination he says:
"I have never fired a. revolver, nor any
other fire-arm. I have not given evidenoe
in a single case of bullet injuries prior to
this ocoa.sion though I have treated and I am
famila.r with bullet injuries. The last tha.t I
ga. ve evidence in Medico-legal case in a mur
der case wa.s in 1949 or 1950 or theres.bout.
Prior to tha.t I must have given evidence in
a medico-legal case in about 1939. I oa.nnot
off hand tell how many ca.sea of bullet injuries
I have treated till now, must ha.ve been over
a dozen. I have not treated any bullet inju
ries case for the la~t 7 or 8 yea.rs. It was
over 8 or 9 yea.rs a.go the. t I ha.ve treated
bullet injuries on the chest a.nd the hea.d. 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 hea.d. Out
of
these
4 or 5 oases probably there were three cases
in which there were injuries both on the chest
as well as on the head ...................... I must
have performed a.bout ha.If a. dozen post
mortems in a.II my career."
He further says that h11 wa.s consulted a.bout a.
week before he gave evidence by Mr. Kha.nda.la.
wa.la. a.nd Mr. Raja.ni Pa.tel on behalf of the accused
and
wa.s
shown the post-mortem report of the in
juries; tha.t he did not ha.ve before him either the
bullets or the skull; that he ga.ve his opinion in
about 20 minutes on the ba.iiis of the post-mortem
(1) S.C.R. SUPREME COURT REPORTS 657
report of the injuries that the said injuries could
have been caused in a struggle between the accused
and the deceased. This witness has come to the Court to support his opinion based on scanty
material. We are not required in this case to decide
upon the comparative qualifications or merits
of
these two doctors of their relative competency
as
surgeons, but we must say that so far as the wounds
on
the dead-body of the deceased are
conrerned,
Dr. Jhala, who has mfLde tho post-mortem exami
nation, is in a better posit.ion to help us to ascertain
whether shooting was by nccicknt or by intention
than Dr. Baliga, who gave his opinion on the basis
of the post-mortem report.
Now we shall take injury Nu. I. This injury
is a punctured ono of dimensions I" x f' x chest
cavity deep just below and inside the inner end of
the right collar bone with an abrasion collar on
the right side of the wound. The internal exami
nation showed that tho bullet, after cnusing the
punctured wound in the chest just below the inner
end of the riglit collor bontl, struck the stemum and
after striking it, it slightly deflected in its course
and came bf'hind the shoulder bone. In the course
of its journey thf' bullet entered the chest, impact<>d
the soft tissuC's of the lung, tho aort.'1. and the l<>ft
lung, and ultimat.ely damage(! the loft lung and got
lodged behind the seapula. Dr. .Thala describes
the wound as ellipsoid arnl oblique and says that
the abrasion collar is missing on the left side. On
the injury there is neith<'r charring nor carbonaceous
tattooing. The prosecution version
is that
t.Jiis
wound was caused by intentional shooting,
while the defence suggestion
is that it was
caus
ed when the accused a.nd the deceased were
struggling for the
posseBSion of tho revolver. Dr.
Jhala, after describing injury No.
l,
says that it
could not have been received by the victim during
a struggle in which both the victim and the assai
lant were in each other's grip. He gives reasons
1'61
K', M. Nuntwati
v.
The State ·of
A-faharashlra
S1d1ba Rao 1.
l~l
K. M. Naruzvoli
••
T/i, Siat. of
Mall.,,,.htra
S.Jiba Rao J.
658 13UPREME COURT REPORTS [1962] SUPP.
for his opinion, namely, as there was no carbona
ceous tatooing on the injury, it must have been
caused by the revolver being fired from a distance
of over 18 inches from the tip of the mouth of the
muzzle. We have earlier noticed that, on the basi11
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 <',ausing carboni.ceous tattooing on the
said fingers and thereafter hitting the chest. Dr.
Jh11la does not admit the possibility of the sugges
tion. 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. I with abrasion
collar. He furt,her explains
that an impact with a solid substance like bones of fingers will make
the bullet lose its gyratory movement and there
after it could not cause any abrasion collar to the
wound.
He adds,
"888uming that the bullet first
hit and cal186d the injury to the web between the
little finger
and the ring finger, and
~1rther assum
ing that it had not lost its gyrating action, it would
not have caused the injury No. I, i. e, on the
chest which is accompanied by internal damage and
the depth to which it had gone."
Now let us eee what Dr. Baliga, D. W. 2
says about injury No. I. The opinion expressed
by Dr. Jhala is put to this witnflSB, namely, that
injury No. I 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 futher says that it is possible that even
,,
•
I
~J
'
(1) S.C.R. SUPREME COURT REPORTS 659
if the bullet first caused injury in the web, that
is, injury No. 2, and thereafter caused injury
No.
1 in the
cheiit, there would be an abra
sion collar such as seen in injury No. l. Excepting
this
of
thP suggestion possibility, he has not
controverted the reasons given by Dr. Jhala
why such an abrasion collar could not be
caused
if the bullet had hit the fingers before
hit
ting the chest. We will presently show in consi
dering 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
retain
ed sufficient velocity to cause the abrasion
collar in
the chest. Nor has Dr. Baliga
contro
verted the reasons given by Dr. Jltala that even if
after causing the injury in the web the bullet could
cause injury No. I, it could not have caused the
internal damage discovered in the post-mortem ex
amination. We ha.ve no hesitation, therefore, to
accept the well reasoned view of Dr. Jhala in
preference
to the J>ussibility
envisitged hy Dr.
Baliga
and hold that injury No. 1 could not have
been
cause1 when the accused 1md the deceased
were in close grip, but only by a shot fired from a
distance beyond
18 inches from the mouth of the
muzzle.
The third injury is a
lactJrated ellipsoid wound
oblique in
the left parietal region with dimensions If' x !" and skull deep. Dr. Jhala in his .ividence
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 frac
ture 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
1.961
K.M,Nanavat
..
Thi Slah of
M a/rarashtra
Subba Rao J.
1961
K. M. N ana.Pati
Y.
Tiu Stat1 of
M aharashtni
S,J,haRao J.·
f:"· ·.
/
I
····-·------
660 SUPREME COURT~REPORTS [1962] SUPP.
distance of over 18. inches from the mouth of the
muzzle and must have been caused with the back
of the head· of the victim towards the assailant.
· When it was suggested to him that the said wound
. could.have been caused. by a ricocheted bullet, he
answered that though a ricocheted bullet coming
from.the same line of direction could. have caused
the said injury, it could not have caused the intra
cranial haemorrhage and also could not have
caused the fracture·of the inner table of the skull.
He is definite, that injury No. 3 could not have
been.inflicted from ''front to back:' as the. slope of
the gutter. fracture was, from. the back to the
front in.the.direction of the ... grazing" of the bullet..
He .gives a further reason that as a rule: the. frac
ture would be·broader in the skull where the bullet
has the fil'st impact and narrower where it -emerges
out, which is the·case in respect of injury No. 3.
He also relies upon the depth· of the fracture at
the two points and its slope to indicate the direc
tion 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, richocheted
bullet cannot cause such· an injury ... He.· opines
that, though .. a.ricocheted. bullet emanating: from
a powerful fire-arm from ·a. close range can cause
injury to a heavy bone, it cannot he caused. by a
revolver
of the type Ex. B.
·
. . Another suggestion made ;to him is . that the
bullet might have hit the glass pane of the window
iri
the bath-room first and then ricocheted causing
the
.injury on the bead. Dr. Jhala, in his evidence,
says that if the bullet had bit the 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 substance and th<'n the glass pane, it would .
act like a pebble and crack the glass and would
..
(1) S.C.R. SUPREME COURT REPORTS 661
not go to the other side. fo the present case, the
bullet must
have hit the skull first and
then the
glass paue
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 pa8scd through it to
the other side, iu which case four bullets must have
been filed from the r~volver Ex. B, which is no
body's case.
The evidence, of Dr. Jhn.la is corroborated by the
t•vidence of the ballistics expert Bhanagay, P.W. 4,
whe.11 he says that if a bullet hi ts a hard substance
and gets flattened and damaged like the bullet8
Exs. F-2 and l!'-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
ciused 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 its frolll
"hack forward". He also contradicts Dr. Jhala arnl
says "back that in the type of the gutter fracture
caused in tht: present case the wound is likely to
be narrower at the entry than at the exit. He
further s-iys that assuming that the gutter fracture
wound was caused by a ricocheted bullet and
assuming further that there was enough force loft
after rebound, a ricocheted bullet could cause a
fracture
of even the inner table and give riso to intra-cranir.J haemorrhage. Ho 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.
Jhu.la ; to quote his own words, " I do not agree
that injury No. 3, 't.e., the gutter fmctuw, cauuot
be inflicted from front to back for the rei1so11 that
the slope 'ot the gutter fracture was behiml 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
elop11 of the gutter
wound would have boon from tho front backward;
19Gl
K. M· . .Nai.<>vaj
v.
1k Stute : .• ~
MaltaraJLh·~
Sutho Ras .. '.!.
lffl
X.M.N-i
••
TJ.,Sl.u of
JlollatoshlTa
BubO. R•J.
662 SUPREME COURT REPORTS [196:!] SUPP.
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 agroo that the depth of the fracture
at two points is more i:nportant factor in arriv
ing 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 oaused in a
struggle between tho victim and the a.ssailant.
Dr. Baliga has been cross-examined at great length.
It is elicited from him that be is not a ballistics
expert and that his experience in the matter of
direction of bullet injuries is comparatively leHB
than his expcri<mce 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
8hown to him with the
figure
15 in the book
" Recent Advances in Foren
sic Medicine " by Smith and Glaistor, p. 21. The
said figure is marked as Ex. Z in the case. The
witness says that the figure shows that the narro
wer part of the gutoor is on tho rear and the wider
part is in front. Cn the cross-examination he
further says
that the widest part of the gutter in
figure Ex.
Z
[8 neither at the front and nor at the
rear end, but the rea.r end is pointed and tailed. It
is put to this witness that figure Ex:. Z does not
support his evidence and
that ho 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
glau, expressed tho view that what Dr. Baliga
oalled the pointed and tailed part of the gutoor
was a crack in the skull and not a part of the gut
ter. This observation bas not been shown to us
to be wrong. When asked on what scientific princi
ple he would support his opinion, Dr. Baliga
could not give any such prinoig;, but only said
that it was likely-he puts emp is on the word
"likely"-that the striking end was likely to bo
•
•
I
11) S.C.R. SUPREME COURT REPORTS 663
narrower and little broader at the far end. He
agrees
that when a conical bullet
hits a hard bone
it means that the hard bone is protruding in the
path
of the projectile and also agrees that after
the initial impact the bullet adjusts itself in the
new direction of flight and
that the damage
caused
at the initial point of the impact would be more
than at any subsequent point. Having agreed so
far, he would not agree on the admitted hypothesis
that at the initial point of contract the wound
should be wider than
at the exit. But he admits
that he has no authority to support
his submission.
Finally, he admits
that generally the breadth and
the depth of the gutter wound would indicate the
extensive nature of the damage.
On this aspect
of the case, therefore, the witness has broken
down and his assertion is not based on
any
princi
ple 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
exact
ly below the backside of the gutter, theugh 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 mat
erial which dissoeiates from the rest of the skull
is carried in the direction in which the bullet flies
but says that he was not fornished 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 re
bounding and causing a fracture of a hard bone
or whether he has any text-book to support his state
ment, he says that he cannot quote any instance nor
1961
K. M. Nanavali
••
Tiu Stau of
M aharashlra
SubboRao J.
' :•
'
r
~2
~
~
~
I
I
i
'
'
~
~
~
("!.
'
' I:
~
G.
" • .,
~
'
,,
I
~
'
' ;~
[
j.l
r,
• r
~
[
1961
K. JI. Nawn;ati
v.
Thi State of
M aharashtr1:1.
Suhha Rao J.·.
'
!
/
. _,/
-. ..._
66! SUPREME COURT REPORTS [l!J62J SUPP.
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 ,, ' "neces
sarily fatal " etc. He would go to the extent of say
ing that in the case of injury No. 3, the chance of
recovery is up to 80 per cent. ; but finally he modi·
fies 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 ofabout 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
& ballistics expert and has no experi
ence 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 in
juries Nos. 1 and 3 .. He admits that the said injury
can be caused both ways, that is, by a bullet hitting
either on tho front of the head or at the baok of the
head. But his reasons for saying that the bullet
· might have hit the victim on the front of tho head
are neither supported by principle nor by the na
ture of the 'gutter wound found i,n the skull. Ex. Z
. relied upon by him does not support him. His theory
of a ricocheted bullet hitting the skull is highly im
aginary and cannot be sustained on the material
.·available to.us: fistly, .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.
(1) s.c:R. SUPHEME COURT REPORTS 665
:Vlr. Pathak finally argtws that tho 1J111let Ex.
F·2a has a "1m1coss", i.e., a projeetion which exactly
fits
in the denture found in the sk
nil and, thereforr,
t.he projeetion could ha vc been caused only by the
bullet coming into contact with some hard sub~tance
before it hit the head of the deceased. This suggostiC!!l
was not made to any of the experts. lt is not
possible for ns tu speculate as tu the manner in
which the said projection was caused.
We, then,foro, 1tcccpt, the evideuce of the
hallist.ics expert, I'. \V. 4, 1u11.1 that (Jf Dr. Jhala,
P. W. 18, in preforc111.:e to that of Dr. Baliga.
Now coming to iujurks Nos. 2, 4 and 5,
injury No. 4 is found on the firnt j©int of the
crease of the indox finger on the haek side of tho
left pal111 and injury No. (i at the joint level of
the left middle fi11gcr dorsal aspect, and i11jury No. 2
is a punctun•d wound in the web between the ring
finger and th<i little finger of the left hand com·
mu.nicating 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
aild all have corbonaoeous tattooing and that the
injuries should have beon caused when his left
hand
was between 6 and 18 inches from the muzzle
of the revolver. He futhor 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 th~ wound on the palmar aspect.
His theory is that one bullet, ·after causing. injurfos
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
alw definite
ly 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
l~·iJ
K, M. NanatMti
••
Thi State of
Maharashlra
IHI
K.M.Norto"'°li
••
71t1 S11111 of
, .Mros/ttro
666 SUPREME WURT REPORTS f 1962] SUPP.
is not disputed that injury No. I and injury No. 3
should have been caused by different bullets. If
injuries Nos. 2, 4 and 5 were cauRed by dift'erent
bullets, there should have. been more than three
bullets fired, which is not the oase of either the
prosecution or the defence. In the circumstances,
the said wounds must have been caused only by
one bullet, and there is nothing improbable in a
bullet touching three fingers on the back
of the
palm and taking a tum and passing through the
web between the little
and ring finger. Dr. Baliga
contradicts Dr. Jh11la even in regard to these
wounds. He ea.ya that these injuries, along with the
others, indicate the probability
of
a struggle between
the victim and the 111188ilant over the weapon ;
but he does not give any ffl&llODB for his opinion.
He &BBerts that one single bullet cannot cause
injuries Nos. 2, 4 and 5 on the left hand fingers, 88
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 ea.r
bonaoeous tattooing on the head injury. We have
already pointed
out that the head injury
was ea.used
from the baok, and we do not see any scope for
one bullet hitting the fingers and thereafter caus
ing the head injury. If the two theories, -namely,
that either injury No. l 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 aforeeaid reasons, Dr.
Baliga's view that injuries Nos. 2, 4 and 5 must
have been caus00 by dift'erent 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 cue that more than three
bullets were
not
fired from the revolver. That
apart in the croaa-examination this witness aooepte
(1) S.C.R. SUPREME COURT REPORTS 667
that the injury on the first pha.langeal 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 ;Wooits that there
can be a deflection even against a. soft tissue, but
adds that the soft tissue being not of much thick
ness 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 ha. ve deflected after striking
the web between the little and the ring finger.
\Ve,
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"xl" 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 ha.th room. Na.na.vati 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 to
wards the door of the ha.th-room or when he pushed
him a.gain into the bath-room, this injury might
have been ca.used by
his ha.ck having come into
contact with the frame
of the door. It is
suggest
ed to Dr. Jha.la. that injury No. 6 could be
ca.used by the ma.n'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 ha.th-room in·
front of the commode and, when falling, his back
may have caught the edge of the commode or the
bath-tub or the
edge of the door
of the bath-room
JPfl
K.Jl.N-
y.
T/t,$141,t ef
Maluzriuldfa
Sobba Bu J.
1961
K. M. Nana~tJtj
v.
Tiu ~16.le 11/
},./ 11luu11J1ilra
Suh&• R .. o J.
I
I
--~-~----
668 SUPREME COURT REFORTS [l!J62) SUPP.
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 b?en 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·injurywas caused when the
deceased's backcame into contact either with
· the edge of the door or the edge of· the bath
. tub or the commode whe 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
decea.sed;.but. injuries Nos .. I 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 fa.eta emerge : · The ·deceased seduced
the wife of the .. accused. ·She ·had confessed
to him of· her illicit intimacy -.with ' the decea
sed. · · . 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 unceremo
·niously 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
1 bullet injuries on his body. It is
not disputed that the bullets that caused •injuries to
'Ahuja emanated from the cTevolver that was 'in the
hand of · the accused. ··After the shooting,· till his
(1) S.C.R. SUPREME COURT REPORTS 66!1
trial in the Sessions Court, he did not tell anybody
that he shot the deceased by accident. In<lerd, he
confessed his gi1ilt to the Chowkidar Puransingh
and practically admitte<l
the
same to l1is c<1llt•airuo
Samuel. His description of the struggle in the
bath-room
is highly artificial and is
devoid of all
necessary particulars. The injuries found on tho
body
of the deceased are conRistent with the
inten
tional shooting and the main injuries are wholly
inconsistent with accidental shooting when tho
victim and the 11.ssailant were in close grips. The
other circumstances brought out in the evidence
also establish
that there could not have b('en
any
fight or struggle between the accused and the
<leceased.
We, therefore, unhesitatingly hold. agreein~
with the High Court, that the prosecution has
proved beyond
any reasonable doubt that the
accusetl
has intentionally shot the d~ceased and killed him.
In this view it is not necessary to con&ider the
question w he th
er the accused had discharged the
burden laid on him.under
s.
80 of the Indian Penal
Code, especially as learned counse 1 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
th'l.t reason also the vordict 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
fal.l
11nder 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
l
19111
K. M. N anat14tj
v.
Th' 5tat< of
Maha"uh.t.~•
S1ibbQ Rt1.o J.
lHI
~. hf. NOM..ti
••
Tlw s-•f
"~·
s.o.a.. ·'·
670 SUPREME COURT REPORTS [1962] SUPP.
self-control by grave and sudden provocat
ion, 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 an
other. Under this exception, culpable homicide
is not murder if tho following conditions are com
plied with : (I) The deooased 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 spJf-control. (5) He should have killed
the deC('&Bed during the qontinuance of the dep
rivatic.n of the power of self-control. (6) The
offender must have caused the death of the per~on
who giwe tho provocation or that of any other
person by mistak" 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 argue~, that though
e. confession of adultery by a wife may in <'ertain
circumstances be provocation by the paramour
himself, under different circumstances it has to be
<"onsidered from the ~tandpoint of the person who
conveys it rather
tba11 from the standpoint of tho
person
who gi\'cs it. He further contends that
even if the provocation was deemed to have been
given by Ahuja, and though the said provocation
might ha\•e been grave, it could not be sudden,
for the provocation given by Ahuja was only in
the past.
On the other hand, Mr. Pathak cantends
that the act of Ahuja, namely, the seduction of
Sylvia, gave provocation though the fact of seduc
tion was comm:unicated to the accused by Sylvia
and that for the ascertainment of the ~uddennt>sa
..
(1) S.C.R. SUPREME COURT REPORTS 671
of , the provocation it is not the mind of
the person who provokes that matters but that
of the person provoked that is decisive. It is
not necessary to express our opinion on the
said question, for
we
are satisfied that, for
other reasons, the case
is not covered by Exception
I
to s.
300 of the Indian Penal Code.
The question that the Court has to consider
is whether a reasonable person placed in the Mme
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 M1>ncini v. Director
of PUblic Prosecutions ('), 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.
Provoca
tion, to h11.ve that result, must be suoh as tem
porarily 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 eff'ect
of the provocation on a
resonable man, as was laid down by the Court
of Criminal Appeal in llex v. Lesbini (
2
), so
that an 1musually excitable or pugnacious indi·
vidual is not entitled to rely on provocation
which would
not have led
an, ordipary person
to act as he did. In applying the test, it is of
particular importance to (a) consider whether
a ~ufficient intervd has elapsed since the pro·
vocation to allow a reasonable man time to
oool, and (b) to take into account the instru·
ment with which the homicide was effected,
for to retort, in the heat
of
passion induced
by provocation, by a simple blow, is a very
differnt thing from making use of a deadly
instrument like a concealed dagger. In short,
(I! L. R. (1942) A. C. I, 9.
(2l [1914] 3 K. B. 1116.
lHl
K. M. Na,.,..,,
••
T"-Stai. o;
JJ ohartUlrtra
Subba Rao J,
-·
K~· JJ; Nanaoati .
v.
Thi' Stat• of
Mahcr&.shlra
Suhba Rao J.
672 SUPRElIE COURT REPORTS: [1962] SUPP.'
the mode of resentment must bear a reason·
able relationship to. the provocation: if the
offence is to be reduced to . manslaughter."
Viscount Simon again in Holmes v. Director of Public
Prosecution8
(') elaborates further on this theme.
-There,
the appellant had
entertained· some sus·
picions of his wife's conduct · with re~ard to . other
_men in the village. On a Saturday night there was
a qu·urerbetween 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";
\Vith 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 breathir.g. 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 .~lancini's case('), proceed·
ed to state thus :
"The whole doctrine relating to provoca·
tion depends on· the fact that it causes, or
may cause, a sudden. and· temporary loss of
self-control,. whereby malice, which is the for·
mation of an intention to kill or to inflict grie·
vous 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 Heldom
applies.''
Goddard, C. J., Duffy's case-(') defines provoca·
ti on. thus : ·
· "Provocation , is some act, or series of
acts, done by the dead man to. the accused
(I) L. R. ( 1945) A. C. 588, 598.
(2) L.R. (1942) A.C. 1, 9.
(3)! [1949] I All. E. R. 932.
(1) B.C.R. SUPRIEME COURT REPORTS 673
whioh w-0uld cause in any reasonable person,
and actually causes i11 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,. ..... circum
stances which induce a desire for revenge, or
a sudden pa88ion 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
thR.t would negative a.
sudden temporary loss of self.control which is
of the essence of provocation. Provocation
being,.
............ as I have defined it, there
.~re
two things, in considering it, to which the law
attaches great importance. 'fhe first or 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
provoca·
tion-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 (') extracted in Russell
on Crime,
11th ed., Vol. I at p. 593, may usefully
be q11oted:
(I)
(1897) 7 C, & P. 817,
1951
K. M. Nanauati.
••
Th• Stat1 of
Maharashtra
Subba Bao J.
'"'
x. 11. x.._,;
••
'.ll.S..Uof
MaM.OJlt#•
8.wH 11 .. 1.
174 SUPREME OOURT REPORTS [1962) SUPP.
"But the law requires two things : first
that there should ho that proTocation; and
secondly, th11t the fatal blow should be clearly
traced
to the infiuenoe of
passion arising from
that provocation."
The passages extracted above lay down the follow
ing principles: (l) Except in circumstanoes of most
extreme and exceptional character, a mere confes
sion of adulwry is not enough to reduce the offence
of murder
to manslaughter. (2) The act of
provoca
tion which reduced the offence of murder to man
slaughter must be such as to cause a sudden and
temporary loss of self-control; and it must be dis
tinguished 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
pa88ion to cool and for reason to regain domi
nion 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 bas 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 distin
ction. They ob!K'rved :
"It is an indisputable fact, that gro88 in·
1ults by word or gesture have as great
tendency to move many persons to ~ioleni
paBBion as dangerous or painful bodily in
juries ; nor does it appear to us that passio
excited by insult is entitled to less indual
gence than passion excited by pain. On the
contrary, the circumstance
that a man resents.
an insult more than
a wound is anythini; but
•
(1) S.C.R. SUPREME COURT REPORTS 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, ( l) 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 &b11sive language used would be
a provocation sufifoient 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
pr!'sent
case the abusive Linguage used was of the
foulest kind and
was addressed to man
al
ready 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 whc was already enraged by the con
duct of deceased's son. The same learned Judge
in a later decision in Boya Munigadu v. The
Queen (') upheld plea of grave and sudden provo
cation 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 tho paramour with a bill-hook. The learned
(.I) ( 1879) I. L. R. 2 Mad. 122, 123.
(2) (1881) I. L. R. 3 Mad. 33, 34-45.
l!Hil
JC M. Nanam1i
••
Tht Stat. af
M a/uJTashlr•
Su6ba Rao J,
191!1
K. JI. }fanaHfi
v.
TI>. Sui. •f
M aJia41Jilro
s~ia Ra• J,
678 SUPRE. E COURT REPORTS (1962) SUPP.
Judges held that the accusP-d h'id sufficient provo
cation to bring thf> rasc within the firAt excPption
to s. 300 of the Indian Penal Code. The learned
Judges observed :
" ........... If having witneBBed the set of
adultery, he conne~ted tliis suba~quent 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 oonoealment of their criminal rclationA a.nd
all regard for his feelingR were abandoned and
that they purposed continuing their c1mrsc of
misconduct in his house. This, we think,
amounted to provocation, grave enough and
sudden enough to deprive him of his a~lf
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 a.ct would be
a sufficient provocation to bring the
case within
the exception. Another division bench
of the Madras High Court in In re Murugian (
1
)
held
that, where the
deceased not onh' committed adul
tery but later on swore openly in the face of the
husband that she would persist in such adultery and
also abused the husband for remonRtrating againRt
such c0nduct, the case was covered by tho first
exception to s.
300 of the
In<iian Penal Code. The
judgement of the Andhra Pradesh High Court in
Jn re C. Narayan (
1
) 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 confes
sion of illicit intimacy with, and consequent preg
nancy by another, strangled his wife to death, and
(I) I.J,.R [19'7] Med. 805. (21 A.l.R. 1958 A.P. 23S.
1
(ll S.C.'ft. SUPREME COURT REPORTS 677
lleld that the case was covered by Exception 1 to
s. 300 of the Indian Penal Code. These two decisiom
indicate that the mental state created by an earlier
act may ba taken into consideration in ascertaining
whether a sub~eqnent act was sufficient to make the
assailant to Jose his self-control.
Where the deceased led an immoral life and
h3r husband, the accused, upbraided her and the
deceased inatead of being repentent 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 provo
cation 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 Pclnal Code. So
t<Jo, where a womau Wai leading a notorlou>ly
immoral life, and on the previous night mysterious
ly disapp0ared from the bedside of her husband
and the husband protested against her conduct, she
vulgarly abuded him, whereupon the husband lost
his self-control, pickAd up a rough stick, which
happened
to be close by and struck her resulting
in
_her death, the Lahore High Court, iu Jan Muham
mad v. Emperor('), held that the case was govern
ed by the said exception. The following observa
tions of the court were relied upon in the present
case :
"In the present ca.se my view is that,
in judging ,the conduct of th~ accused, one
must not confine himself
to the actual moment
when the blow, which ultimately 'proved
to
Le fatal was struck, that is to say, one must
not take into consideration only the event
which took
place immediately before the fatal
Llow was struck. We must take into consi
deration the previous conduct of the woman ...
. . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
As stated above, the whole unfortunate affair
·(I) LL.R. (1929] Lahore 861, 863.
INJ
K. M. NanavtJti
v.
Tiu State of
Maharashtra
Subba B .. J.
IHI
K. JI. N.,.,..1;
v.
Tiu 81.U of
M aAarosltl10
Sobl• Rao J.
678 SUPREME COURT REPORTS [1962) SUPP.
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 m
Emperor v. Rolku (') invoked the exception in
a case where the accused antl 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 an·
other room and having sexual intercourse with bis
(accused's) wife, and tho 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 cJiarpai 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 circums
tances we think that the provocation would
bo 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 compro
mising 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 betw1>en them. He had lulled himself
into a false security. This belief waa shattered
(I) 1.L.R. [1938] All. 789, ?93. (2) A.J.R. 1960 AU. 22S, 226.
'
•
I
I
i
(1) S.C.R. SUPREME OOUR'f REPORTS 6i9
when he found the deceased at hi.s hut when
he was absent. This could certitinly give him
a mental jolt and as this knowledgfl 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
inti
macy on an earlier occasion also will not alter
the nature of the provocation ancl. make it
any the less sudden."
All the said four decisions dealt with a case of a
husband killing his wife when his peace of mind
had already been disturbed by an earlier discovery
of the wife's infidelity
and the subsequent
ac1t of
her operated as a grave and sudden provocation on
his disturbed mind.
Ia 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 circum
stances depends upon the customs, manners, way
of life, traditional values etc. ; in short, the cul
tural, social and emotional background of the
society to which
an accused belongs. In our vast
country there a.re social groups ranging from the
lowest to the highest state
of civilization. It
ia
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 circum
stances. 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
mom
entarily or even temporarily when his wife confes
sed 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. deli
berately.
The Indian law, relevant
to the present
en
quiry, may be stated thus: (1) The test of "grave
JPOI
K.M.N......,;
••
The State q/
M&Jluita•htra
Sr<ibaR .. J.
11161
1,;, M. N anatali
v.
T/14 S1au of
M aharo.sAJra
Subba Rao J.
680 SUPREME COURT REPORTS [1962) SUPP. ·
and sudden" provocation is whether a reasonable
man, belonging to the s»mo class of society as the
accused, placed in the situation in which the acc
used was placed would be so provoked as to lose
his self-control. (2) In India., words and gestures
may
a.Jso, under certain
oircum;;tunces, ca.use grave
a.nd sudden provocation to an a.ccused so a.s to
bring bis act within the first Exception to s. 300
of the Indian Pena.I Code. (3) The mental back
ground created by the previous act of the victim
ma.y be ta.ken into consideration in a.scertaining
whether the subsequent
a.ct caused grave and
sudden provocation for committing the offence.
(4) Tho
fatal blow should be clearly traced to the
influence
of passion arising from that provocation
and not
after the passion had cooled down by Japso
of time, or otherwise giving room and scope for
prcmedita.tion and calculation.
Bea.ring these principles in mind, let us look
at the facts of this case. When Sy! via confessed
to her husband that she bad illicit intimacy with
Ahuja., the la.tt,er was not present. Wo will assume
that he had momentarily lost bis self-control. But
if his version is true-for the purpose of this argu
ment we shdl accept that what hti has said is true-it
showd that ho was only thinking of the future of his
wife and ohildron a.nd also of asking for an explana
tion from Ahuja for his conduct. This a.ttit,ude of the
aocuaod clearly indicates that ho had not only
regained bis self-oontrol, but on the other hand,
was planning (or the future. Then he drove his
wife and children to a. oinoma., left them there,
went
to his ship,
took a. revolver on a. fa)s3 pretext,
loaded it with six rounds, did some official busi
ness there, and drove his oar to the office of Ahuja
and then to his flat, went stra.igbt to the bed-room
of Ahuja and shot him dead. Between 1-30 P. M.,
when ho left his house, and 4-20 P.M., when the
murder took place, throe hours had elapsed, and
therefore there was sufficient. time for him to
,
1) S.C.R. SUPREME OOURT REPORTS 68L
regain his self-control, even if he had not regained
it earlier. On tho other hand, his conduct clearly
shows that the murder was a. deliberate and
calculated one. Even if any oonvers'.ltion took
place between the accused and the deceased
in the manner described by the
accused
though we do not believe that-it does. not a:tfect
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
deceas
ed 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
I
to s.
300 of the Indian Penal Code.
In the result, conviction of the accused under
s. 302 of the Indian Pena.I Code and senten,JC
of imprisonment for life passed on him by the High
Court are correct, and there are absolutely no
grounds for interference. The appeal stands dis
missed.
Appeal dismissed.
--
BIRAJMOHAN DAS GUPTA
v.
THE STATE OF ORISSA AND OTHERS
(P. B. GAJENDBAGADKAR, A. K. SARX.lR, K. N.
WANOJIOO, K. C. DAS Gu.PTA and N. RAJAGOPALA
AYYANGAR, JJ.)
Boad Tranal!".rl-Slale TraMpOrt Urnlertaking-Schemo
Ap~ro...Z by _Min,.ler-Biaa o/ M~ni81er-Validity of schem<
Jliottce for adiourned dale of heanng-1/ necesaary-.()miasion
u/ date of operation of route in final acheme-Tranaport Oontrol
lu-Authority to pubU.h acheme-Ori&a Bu!u frame;J und<r
Oh. IV A of Motor Vehit:les-Act, .,,, ~ (.,;), 8-Molor Velliclu Act,
19&9 (4 of 1939), as. 680, 68D (9).
The validity of a schemlt' oi road .. Vanlport service appro.
ved
by the Government
af 01U... IW!cr a·. 68D (2) of the
J91Jl
K. -M. Nanavali
v.
., he se'Jte of
/11ah6rashtra
Subba BJo J.
1961
· elllfflbcr 21
The Supreme Court's ruling in K.M. Nanavati v. State of Maharashtra stands as a monumental decision in Indian legal history, marking a pivotal moment in criminal jurisprudence. This landmark judgment on jury trials and provocation, available in its entirety on CaseOn, not only captured the nation's attention due to its sensational facts but also led to the eventual abolition of the jury trial system in India. The case meticulously examines the scope of judicial review over a jury's verdict, the nuances of the burden of proof, and the legal test for the defense of “grave and sudden provocation.”
The case revolves around Commander Kawas Manekshaw Nanavati, a decorated naval officer. The prosecution's case was as follows:
Nanavati’s defense presented a different narrative. He claimed that after the confession, he intended to confront Ahuja and ask if he would marry Sylvia and care for their children. He took the revolver with the intention of shooting himself, not Ahuja. According to the defense, upon his arrival at Ahuja's flat, a struggle ensued when Ahuja lunged for the envelope containing the gun, and two shots went off accidentally, killing Ahuja.
The case was tried by a Sessions Court with the aid of a special jury. The jury returned a verdict of “not guilty” by an 8:1 majority. However, the Sessions Judge disagreed with the verdict, believing it to be perverse and one that no reasonable body of men could have reached on the evidence. He referred the case to the Bombay High Court under Section 307 of the Code of Criminal Procedure (CrPC).
The High Court reviewed the evidence, set aside the jury's verdict, and found Nanavati guilty of murder under Section 302 of the Indian Penal Code (IPC), sentencing him to life imprisonment. Nanavati then appealed this decision to the Supreme Court by special leave.
The Supreme Court was tasked with deciding on several critical legal questions:
The Supreme Court conducted a thorough analysis of each issue, delivering a judgment that clarified several complex areas of criminal law.
The Court held that the jurisdiction conferred on the High Court by Section 307 CrPC is unique and fundamentally different from its appellate jurisdiction. While an appeal against a jury verdict is limited to matters of law, a reference under Section 307 empowers the High Court to act as the ultimate judge of both fact and law. The High Court is required to consider the entire evidence, give due weight to the opinions of both the Sessions Judge and the jury, and arrive at its own independent conclusion. It can set aside a jury's verdict not only if it is perverse but also if it is vitiated by misdirections in the judge's charge.
The Supreme Court identified several serious misdirections by the Sessions Judge that had likely misled the jury:
Analyzing rulings with such detailed critiques of judicial procedure can be time-consuming. For legal professionals on the go, CaseOn.in offers 2-minute audio briefs that summarize the core arguments and holdings of complex judgments like K.M. Nanavati, making it easier to grasp the key takeaways efficiently.
This was the most pivotal part of the analysis. The defense argued that Sylvia's confession constituted grave and sudden provocation, causing Nanavati to lose his self-control. The Court laid down the definitive test for this defense:
Applying this test, the Court concluded that Nanavati's actions were not the result of a sudden and uncontrollable rage. The time lapse of about three hours between the confession and the murder was significant. During this period, Nanavati's actions—calmly dropping his family at the cinema, obtaining a weapon on a false pretext, and then driving to Ahuja's office and flat—demonstrated calculation and premeditation. The Court held that he had sufficient time to regain his self-control, and the murder was a deliberate and calculated act of revenge, not an act committed while deprived of self-control. Therefore, the defense of grave and sudden provocation was not available to him.
The Supreme Court held that the jury's verdict of “not guilty” was vitiated by the grave misdirections in the Sessions Judge's charge. Upon an independent and comprehensive review of the entire evidence on record, the Court found that the prosecution had proved its case beyond a reasonable doubt. Nanavati's defense of an accidental shooting was found to be completely implausible, and the legal requirements for the defense of grave and sudden provocation were not met. Consequently, the Supreme Court dismissed the appeal and upheld the conviction and sentence of life imprisonment passed by the High Court.
The K.M. Nanavati case is a detailed exposition on criminal law principles. The Supreme Court affirmed the High Court’s power to overturn a jury's verdict in a reference case, especially when flawed by judicial misdirection. It clarified that while the prosecution bears the ultimate burden of proof, an accused pleading an exception must prove it. Most importantly, it established that the defense of provocation requires the act of killing to be a direct result of a sudden loss of self-control, without a cooling-off period that allows for premeditation.
Disclaimer: This article is for informational and educational purposes only and does not constitute legal advice. For specific legal issues, please consult with a qualified legal professional.
Legal Notes
Add a Note....