K. M. Nanavati v. State of Maharashtra

Judgment

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 powers 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 inditlated 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 Tht State or .'t1uharosht1a Sub ha Rao .J. l\.N ,.N1211411ali Tf.e S;at1 of aharo.Jit1J 8u06o Roo J. 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 provisions 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 construction 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 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 verdict 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 Procedure 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 interpreted 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 Legislature 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 disagrees 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 J(. Al. NatWl'ati Tht lilate of Maharashtra Subba Rao J ''· Al .\" 0110L'Oli Tht ,f..-tOf8 of /IJ,.fillrc1$hlra ("ll/!ba Ruo J, 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 attribute 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 opinions 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 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 jurisdiction of the High Court. It appears to us that the Legislature designedly conferred a larger power on the High Court under s. 307(3) of the Code than that conferred under s. 418 thereof, as in the former case the Sessions Judge differs from the jury while in the latter he agrees with the jury. The decisions cited at the Bar do not in any way sustain in narrow construction 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 described the wide amplitude of the power of the High Court in the following terms : "The Court must consider the whole case and give due weight to the opinions of the Sessions Judge and jury, and 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. K. II. N a12vati The .}lat1 of· Maha~as~lr• S.'l~ba Rao ·'· K, .\l . .Nanavati 711. Stat1 of ~laluira.rhtra Subba Rao J. 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 circumstances under whichthe 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 Committee 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 interferin~ 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 interference 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 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• disposal 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 verdict 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 recorded his judgment of acquittal in respect of the latter charges in agreement with the jury and referred the case to the High Court only in ' respect of the former. This Court held that the said procedure violated sub-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 incompetent and that the High Court could not proceed 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. K. :\.I. NantJvtatr The Slo/t, oJ ~/ uharas~trs Subb1 ll.io J. I I ! I I K. Al . Nanavati I he S;ate of }.[aharashtra 592 SUPRE:IIE COURT REPORTS [1962) SUPP.

Court held that the reference was incompetent because 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~ . , . -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 provisions of sub-s. (2) of s. 307 of the Code and therefore the use of the wt•rd 'incompetent' may not be inappropriate. 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-directions. Das, .J ., observed :

"Where, however, there is misdirection, the principle embodied in s. 537 would apply and if the verdict is erroneous owing to the misdirection, it can have no weight on a reference un<ler s. 307 as on an appeal. It is not necessary to multiply decisions .. The foregoin~ 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.

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 thereunder. (4) Under sub-s. (3) of s. 307 of the Code, the High Court has to consider the entire evidence and, after giving due weight to the opinions of the Sessions ,Judge and the jury, acquit or convict the 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 unreasonable", "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, remanding the case, ordering a retrial, etc. We therefore, reject the first contention of learned counsel for the appellant.

The next question is whether the High Court was right in holding that there were misdirections in the charge to the jury. .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 Tiu State of Maharashtra Su6ha Rao J. 19~/ K. ,\f. Nuru.tOli Tiu S1ot4 •/ ,\lalwroslt.lro Su.'bo Ro• J. 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 recent 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 counsel for the appellant had taken each of the said alleged misdirections and attempted to demonstrate that they were either no misdirections at all, or even if they were, they did not in any way affect the correctneBS of the verdict. We shall now take the first and the third misdirections pointed out by Shelat, J., as they are intimately connected with each other. They are really omissions.

The first omission ·is that throughout the entire charge there is no reference to s. 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 omissions, it is necessary to read the relevant provisions. 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 following 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 .\faMra.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 circumstances a.s proved till they are disproved. An illustration 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 deceased 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 shooting was not by accident, and that the other circumstances bringing the ca.se within the exception did not exist; but this presumption ma.y be rebutted by the accused by adducing evidence to JI I support his plea of accident in the circumstances mentioned therein.

This presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by 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 protection given on the assumption of the proof of the said ingredients:

(see ss. 77, 78, 79,81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception if proved affecting the proof of all or some of the ingredients of 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 ingredients of the offence. An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of s. 300 of the Indian K. JI. /Jo11t••ti The Stolt of M shar,ul.'1a Subba Rao J. 1.-. l/.

J\'anaz-·•ti Th, Stat' of .li c!1<11Qf.htra 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 mmtning 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 except 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 ingredients of the offence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredient.e of the offence. The English decisions relied upon by Mr. Pathak, learned counsel for the accused, may not be of much help in construing the provisions of s. 105 of the Indian Evidence Act. We would, therefore, prefer not to refer to them, except to one of the leading decisions on the subject, namely, Woolmington v. The Director of Public Prosecutions (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 unintentional or provoked. If the jtiry are either satiefied with his explapation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted." In the course of the judgment 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 innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence ......

Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt 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. K. M . .Nonav,ti The St11tt nf It! aharoshtra Suhha Rao J. JNJ K. Jf. No"®1ti Tiu S1a1, •! M ahaToshlro Subba Rao J. 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.1iity and in a case where there is a Htatutory exception 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 1895 in the Ceylon Code, which corresponds to s. 106 of the Indian Evidence Act, it was enacted that when any fact was especially within the knowledge of any person, the burden of proving that fact was 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 performed-was unconscious and what took place in that room that three-quarters of an hour that she was under chloroform is a fact specially within the knowledge of these two accused who were there.

The burden of proving that fact, the law says, is upon him, namely that no criminal operation took place but what took place was this and this speculum examination." The ,Judicial Committee pointed out: "It is not the law of Ceylon that the burden is cast upon an accused person of proving that no crime has been committed. The jury might well have thought from the passage just quoted that that was in fact a burden which the accused person had to discharge. The summing-up goes on to explain the presumption of innocence in favour of accused persons, but it again reiterates that the burden of proving that 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 accused a burden to prove that he had not committed any crime;. nor· did it deal with any exception similar to that provided under s. 80 of the Indian Penal Code.

It has no baa.ring on the construction of s. 105 of the Indian Evidence Act. T4e 19~J K. M. Nanavat i The State of M aharaJhlru Subia RaoJ. K. M, Nn1101:ati The 51011 of .'d aharashlra Sidib' Ra, ./. 602 SL"PREME COURT REPORTS (1962] SUPP. 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 throough has been only th:Lt the prosecution has failed In establi8h intentional killing on his part. Alternatively, 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. [1960] I. S.C.R. ~I. I 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 person 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 K. M. Nnnavati The S fate t!( Jll aharaJhtra Subha Rau J. K. Al, N aftatoati Tiu Slatt "/ Mo/rflroJhlta Suhba Bao J. 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 manner", "lawful means" and "with proper care nnrl caution" 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 cannot 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 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 learned Judge to decide as a question of law whether the sudden confession by the wife of the accused amounted to grave and sudden provocation as against the deceased Ahuja which on the authorities referred to hereinaliove 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 decisions and textbooks in support of his conclusion that the said question was one of law and that it was for the Judge to express his view thereon. Mr. Pathak contends that there is an essential difference between the law of England and that of India in the matter of the charge to the jury in respect of grave and sudden provocation. The House of Lords K. M. N11navati T!te Stat~ o}· },J aharaJIUra Subba Rao J. X. Jl! .. \'una11ali T~ St•te of lil aharwhlra S11bba Rao J, in Holmes v. Director of Public Prosecution (1) laid down the law in England thus :

"If there is no sufficient material, even on a view of the evidence most favourable to the accused, for a jury (which means a reasonable jury) to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self.control, to the degree and method and continuance of violence which produces the death it is the duty of the judge as 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 determine 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 affirmative, 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. 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 Tiit Sta11 of .Maharashtra Subba Rao J. I I I I J; ...ll. ~Yona;nfi Th6 State of :ftlaharcuhtra Subba Rao J. 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 circumstantial evidence because it is not always the case or generally the case that people who go out to commit crime will also take' witnesses with them. So that it. may be that in some cases the prosecution may have to rely on circumstantial evidence. Now. when you are dealing with circumstantial evidence you will bear in mind certain principles, namely, that the facts on which the prosecution relies must be fully established. They must be fully and firmly established.

These facts must lead to one conclusion and one only namely the guilt of the accused and lastly it must exclude all reasonable hypothesis consistent with the innocence of the accused, all reasonable hypothesis consistent with the innocence of the accused should be excluded. In other words you must come to the conclusion by · all the human probability, it must ·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 circumstantial 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 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 separately and told the jury that if his evidenee wa8 believed, 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 untenable. 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 established 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 reasonable hypothesis consistent with the innocence of the accused regard being had to all the circumstances in the case and the conclusion that you have to come to should be of this nature and by all human pl"9bability it must be the accused and the accused alone who ·must have committed this crime". H. M. i'w'•nawfi Tl~ Stat' .t M aharalhtr• Subba Bao J, 11161 K, ;,_,. N atlOiliU"i 'Tiu Stolt of Maha,0Jld1a Subha Rao J, 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 innocence 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 beingha.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 Puransinj: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 verdict 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 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 circumstantial 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 learned Sessions Judge. In these circumstances we must hold, agreeing with the High Court, that this is a grave misdirection affecting the correctness of the verdict.

The next misdirection relied upon by 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 The State of M aharashlra .. "ubba Rao J. j ' I I i I I 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. Nanavati'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 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.ying that it might not. have been more satisfactory if the judge had referred to the evidence of the two witnesses, seeing that he did not think it necessary to refer to some of the statements made by the accused after the occurrence. No doubt it would have been more satisfactory from the point of view of the accused. All we are saying is that we are satisfied that there was no misdirection in law on the part of judge in omitting those statements, and it was within his discretion." This passage does 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 convicted the appellant. The court held that, "although 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 complicated one. This decision does not help us in deciding the point raised. Whether a particular omission by a judge to place before the jury certain evidence amounts to a. misdirection or not falls to be decided on the facts of 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 impression 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 predicate 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 Nanavati 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. 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 themselves for in a jury trial, especially where innumerable documents are filed, it is difficult for a lay jury, unless properly directed, to realise the relative importance of specified documents in the context of different aspects of a case. That is why the Code of Criminal Procedure, under s. 297 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 respective versions. That fact in itself cannot absolve the Judge from his clear duty to put the contents of the· letters before the jury from the correct perspective. We are in agreement with the High Court that this was a clear misdirection which might have affected the verdict of the jury. The next defect pointed out by the High Court is that the Sessions Judge allowed the counsel for the accused to elicit from the police officer, Phansalkar, what Puransingh is alleged to have stated to him orally, in order to contradict the l'vidence of Puransingh in the court, and the Judge also dealt with the evidence so elicited in paragraph 18 of his charge to the jury. This contention cannot be fully appreciated unless some relevant facts are stated.

Puransingh was exa.mined for the prosecution as P. W. 12. He w~ q. IHl E.M. N.,,,,.ati n. Btai1 of Malurrahtra Subia llao J. K. M. N anizioati Tht S1a11 of M ah4rtZJlu1a Subbo Roa J. 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, Phanealkar 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 Phansalkar 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 : "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 deceased 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 coming back he was with Sub-Inspector Phansalkar and Sub-Inspector Phansalkar in his own statement to Mr. Mokashi has referred to the conversation which he had between him and this witness Puransingh and that had been brought on record as a contradiction." The learned Sessions Judge then proceeded to state other circumstances and observed, "Consider whether you will accept the evidence of Puransingh or not." It is manifest from the summing-up that the learned 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 contradiction on the mind of the jury and whether they had not rejected the evidence of Puransingh K. M. N anavati The Slate o.f Afah.arashtra Subba Rao J. Ji. M. ;Var.QfJati 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 admissible. 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 statement 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, contends 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 investigation under this Chapter shall, if reduced into writing be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was ma.de : (1) S,C.R. "Provided that when any witnPss is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict 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-examination 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 investigation, the admissibility of such statement would not be governed by s. 162 of the Code. The question, therefore, is whether Puransingh made the statement to Phansalkar in the course of investigation.

Section 154 of the Code says that every information relating to the commission of. a cognizable offence if given orally to an officer in ch<trge 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 within 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 K, M .. Vanauati The State of Maharashtra Subba Rao J, K • .lvf. Nanava.ti 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 sections.

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 information given by Puransitlgh was not recorded by Police Officer Phansalkar'" as he should do under s. 15! of tho Code of Criminal Procedure, no investigati01; 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 information 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 reduced into 'vriting, any part of his statement, if duly proved, may be used by the accused to contradict such witness.

The proviso cannot be invoked to bring in the statement made by Phansalkar to Inspector 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. statement made by Puransingh to Phansalkar, for the said sta temPnt of Puransii1gh has not br'm reduced 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 argument.''

The learned Attorney-General points out that the learned Sessions Judge was wrong in saying that (I) [1959) Supp. (2) S.C.R. 875. K. M. Nonauati 1'/ic Stoic of ft1ah11rasl1lra S11bba Rao J. K. ll. Nonauafi 1·1u Statt of ~·.t aharaJlura Subba Rao J, no one challenged the marksmanship of the accused, 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 misdirections in this case, affecting the verdict of the jury, and the High Court was certainly within its rights to consider the evidence and come to its own couclusion 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 misdirection, this Court should not, in cxerci&e of its discretionary jurisdiction under Art. 13G of the Constitutions 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 evidence 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 incident, (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 accused wherein he gives the circumstances under which he came to know of the illicit intimacy of his wife Sylvia with the deceased Ahuja, and the reasons for which he went to the flat of Ahuja in the evening of April 27, 1959. After his brother and his brother's wife, who stayed with him for a few days, had left, he found his wife behaving strangely and without affection towards him. Though on that ground he was unhappy and worried, he did not I (l) S.C.R. SUPI'tEME COURT REPORTS suspect of her unfaithfulness to him. On the morning 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 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 somebody 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 K. Al. Nanavat1 The Stolt oj Al aharashtr a Suhba Rao J. I J.:. ~\J. ,,Yanai·ati 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 misunderstand her. The circumstances under which the confession of unfaithfulness is alleged to have been made do not appear to be natural. This inference is also reinforced by the fact that soon after the confession, which is alleged to have upset him so much, he is said to have driven his wife and children to 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 thocinoma.

Nanavati then proceeds to say in _his evidence : on his wife admitting her illicit intimacy with Ahuja, he was absolutely stunned; he then got up and said that he must go and settle the matter . with the 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 lattersuddenly got up rather excitedly and said that he wanted to go 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 circumstances, differently.

A husband to whom his wife confessed of infidelity may kill his wife, another may kill his wife as well as her paramour, the third, who is more sentimental. may commit suicide, and the more sophisticated one may give divorce to her and marry another. But it is most improbable, even impossible, that a husband who has been deceived by his wife would voluntarily go to the house of his wife's paramour to ascertain his intentions, '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 prepared 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 K. M. Narwoat1' The State of Maharashtra Bubba Rao J. Ilal f(,M, N- 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 between Sylvia and Ahuja to marry. It may well have been that Ahuja was telling Sylvia about his intentions to marry another girl to make her 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 (1) C.S.R. 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 crossexamination 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 quPstion 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 Nanavati 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 chivalry 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. E.. M. N anaoati Tiu St•'• •f Jld..-ulttra Su/Jba lie• J. t I t I I f I l K. M .-}ltz11.avati Thi sw .. f }.fo/iarashlra Subba Bao J. -..Jtl;·~ 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 medicine 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 animals. This statement, therefore, is not true and he did not go to the ship for getting medicine for his dog but for some other purpose, and that purpose is clear from his 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; immediately loaded the revolver with all the six rounds and put the revolver inside an envelope which was lying in his cabin. It is not the case of the accused that he really wanted to go to Ahmednagar and he wanted the revolver for his safety. Then why did he take the revolver? According to him, he - wanted to shoot himself after driving far away . from 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 loading it with six cartridges indicate the intention on his part to shoot somebody with it . . , Then the accused proceeded to state that he put the envelope containing the revolver in his car and found himself driving to 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 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 statement that he kept '•he revolver in the car when he entered Abuja's office. On the basis of this statement, 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 shutting the door behind him. Thi~ conduct is only consistent 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 The Sla;e of MJ/iarlllhtra S.Ub<I Hao J, IHI ¥,JI, N-ti 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 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 witnesses are natural witnesses and they have been examined by the police on the same day and nothing has been elicited against them to discredit their evidence. The 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 K.M. N_.; Tiie Blafl t Mdarultlr• Subb<R .. J. 19~1 K'. M. ;Vanau1ti I Ju Statt of Atoluzrasli11a Mbo Rao J. 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 ascertain the conduct of the accused from the time he was found in the bed room of Ahuja. till he surrenclcn·d himself to the polic('. Immediately after the shooting, Anjani and Miss 1\fammio 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 accused 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 contradictions 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 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. Assuming 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, It. 11!. A1 onovati Tht Stat1 of bf oharashtra Subba Rao J. K. M. N onaraJi 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 independent 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 policestation 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 witnesses, Anjani and Deepak, would have persuaded him to make a false statement that night. Though both of them were present when Puransingh questioned the accused, they deposed that they were at a distance and therefore they did not hear what the accused told Puransingh. If they 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 conviction that he was justified in doing what he did. It was quite natural, therefore, for . him to confess his guilt and justify his act to the watchman who stopped him and asked him to wait there till the police came. In the mood in which Nanavati was soon after the shooting, artificial standards of status or position would not have weighed in his mind if he was going to confess and surrender to the police. We have gone through the evidence of Puransingh and we do not see any justification to reject his evidence. Leaving Jivan Jyot the accused drove his 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 K. M. Nanav•ti Thi Slate of Mahartuhtra Subba Rao J. 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 happened, 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 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 deceased 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 himself ? The only explanation for this unusual conduct on the part of the 9.Ccused is that, having committed the murder, he wanted to surrender himself to K, Jr!. N anauati 'l'ht Seate of Maharas/Ura Suhha Rao J. 1961. r. J,l. Nan~v~ti · ~ v.: Tn. State of M ahartUhtra ---r-,-.,,--,·---~-,,--- ~.---r-..- . .-..- 638 SUPREJ\ru 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\f 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 question~ 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;· 0Btit'strong teljanci~ iii placed ori'what' this witness'. stated in'. the''. cross-exariiina'- tiob.'.ci:iz:: "rJ:i~rird'.the;·:word : fight'. from the' ·accused", :'"I heard some other words from the'. accused but·r cciiild not niakeout 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 givenby 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 following question was nut to him by the learned Sessions J tldge : Q.-It is alleged against you that thereafter as aforesaid you went to Commander Samuel at about 4-45 P.M. and told him that something terrible had happened and that you did not quite know but you thought that vou shot a man as he had' seduced 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, Superintendent Korde and Inspector Mokashi were also present. On the information given by him, Lobo directed Inspector Mokashi to take the accused into custody and to take charge of the articles and to investigate the case. K. lJL. Nanaaa1i Thi S1at1 of MalusraJhlra Subia Rao J. K . .!I. N onarati Tf.e Stale of jfaharashtra · Subba RaQ J. 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 cannot be used to corroborate what Nanavati told Samuel, but it would only be a corroboration of the evidence of Samuel that he telephoned to Lobo to that effect. It is not denied that the accused set up the defence of accident for the first time in the Sessions Court. This conduct of the accused from the time of tho shooting of Ahuja to the moment he surrendered himself to the police is inconsistent 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 Setalvad 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. 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 commode 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 bloodstained. There was white handkerchief and bathtowel, 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 between 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 carbonaceous 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 carbonaoeous 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 dimeneions ( x i" and at the back of the bone there was a lacerated wound accompanied by irregular 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 in the middle compartment upper and front part surrounding the laceration impregnated pieces of fractured bone. There was extensive echymosis and contusion around the root of the right lung in the diameter of 2 " involving also the inner surface of the upper lobe. There were extensive clots of blood around the aorta.

The left lung was markedly pale and showed a through and through wound in the lower lobe beginning at the inner surface just above the root opening out in the lacerated 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 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 working. 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 repeated each time it is fired. As it is not an automatic revolver, each time it is fired, the trigger has to be pulled and released. If the trigger is pulled but not released, the second round will not come in its position of firing. Pulling of the trigger has a double action--one is the rotating of tho chamber and oocking, and the other, releasing of the hammer. Because of this double action, the pull must be fairly strong. A pressure of about 20 pounds is required for pulling the trigger.

There is controversy on the question of pressure, and we shall deal with this at the appropriate place. Of the three bullets fired from the said revolver, two bullets were found in the bath-room, and the third was extracted from the back of the left shoulder blade. EX8. F-2 and F-2a are the bullets found in the bath-room. These two bullets are flattened and the copper jacket of one of the bullets, Ex. F-2a, has been turn off. The third bullet is marked as Ex. 1<'-3. With this background let us now consider the I evidence to ascertain whether the shooting was intentional, &8 the prosecution &Vere, or only n l (I) S.C.R. accidental, as the defence suggests. Excepting Nanavati, 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 became 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 accused 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 prevented 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 desperately 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. Dt1ring 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 K. M. Naruuiati The Blatt of Ma/Jarasht1a SuHa Rao J, X.M. NOMoaJi n. Sto11oj MtWv.,/Wa Subl>a Rao J. hanging on to the hand of the accused, but suddenly he let go his hand and slumped down.

When the deceased slumped down, the accused immediately came out of the bath-room and walked down to report to the police. By this description the accused seeks to raise the image that he and the deceased were face to face struggling for the possession of tho revolver, the accused trying to keep it and the deceased trying to snl\tch 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 unhelpful 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 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 bedroom of the deceased unceremoniously with a fully loaded revolver; within half a minute he came out of the room leaving Ahuja dead with bullet wounds. The story of his keeping the revolver on the cabinet is very unnatural. Even if he had kept it there, how did Ahuja come to know that it was a revolver for admittedly it was put in an envelope. Assuming that Ahuja had suspected that it might be a revolver, how could he have caught the wrist of Nanavati who had by that time the revolver in his hand with his finger on the trigger ?

Even if he was able to do so, how did Nanavati 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. Though 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 bathroom 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 further 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 sufficient to cause the victim to slump down. It is, therefore, impossible that after either of the said two injurios was inflicted, the deceased could have still kept on struggling with the accused. Indeed, Nanavati says in his evidence that at the first shot the deceased just kept on hanging to his hand, but suddenly he let go his grip and slumped down. The only circumstance that could he relied upon to indicate a struggle is that one of the chappa.ls of the deceased Wll8 found in the bed-room while the other was in the bath-room. But that is consistent with both intentional and accidental shooting, _for in his anxiety to escape from the line of 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. intentional 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 instead of their being intaet by the side of the deadbotly. The condition of the bed-room as well as of the bath-room, as described by Rashmikant, the police-officer who made the inquiry, does not show any indication of struggle or fight in that place. The version of the accused, therefore, is brimming with improbabilities and is not such that any court can reasonably accept it. It is said that if the accused went to the bedroom of Ahuja to shoot him he would not have addressed him by his first 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 towards him~·but only an involuntary and habitual expression. It is argued that Nanavati is a good shot- Nanda., D. W. 6, a Commodore in the Indian Navy, certifies that he is a. good shot in regard to both moving and stationary 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 deceased must have made to escape. The first shot might have been fired and aimed at the chest as f(. Ms N GfUJVtJJi The State of MoluJraslttra ~ubha Rtie J, /~6l K. JI, ./li•UHli T~ ~'"'' •f MM.rashtr• 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 Commissioner of Polioe, Bombay, through Inapector Ra.ngnekar sent to him the re.,-olver, three empty cartridge cases, three bullets and three live rounds for his inspection. He has examined the revolv 0er 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 trigger has to be pulled and for another shot to be fired it must be released and pulled again.

He also says that the charring around the wound could occur with the wea.pon of the type we are now concerned within about 2 to 3 inches of the muzzle of the weapon and the blackening around the wound described 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!\tion 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 provided 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 1\rings and tha (1) S.C.R. SUPREME OOURT REPORTS even if th3 struggle continues he would not expect three rounds to go off, but he qu llifies his statement by adding that this may happen if the person holding the revolver "co-operates so far a.a the reflex of his finger is concerned", to pull the trigger. He further elaborates the same idea by saying that a. certain kind of reflex co-operation is required for pulling the trigger and that this reflex pull could be either conscious or unconscious. This answer ia strongly relied upon by learned counsel for the ace· used in support of his contention of accidental firing. 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 possibility of three rounds going off by three separate reflexes of the finger of the person holding the trigger is only a. theoretical possibility, and that too only on the assumption of a fairly long struggle. Such unconscious reflex pull of the finger by the accused three times within a space of a few seconds during the ~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 Commissioner'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 revolver Ex. B. (2) The revolver ca.n be fired only by K. JL. Naavati T/r, St•t• of Malraras/"1• Suhha Rs1 J. 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 person 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 person 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 disputed-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 accidentally 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 examined 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 competitions 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 2UPREM:lll COURT REPORTS 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-• TlllSW. of Mahtlrashlr• K.M. No- Th• SIU. •f M alwuhlr• 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 crossexamination 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 · 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 caused by the rifling of the barrel.

If a bullet hits the body perpendicularly, the wound would be circular and the abrasion collar would be all around. But if the hit is not perpendioular, the abrasion collar will not be around the entire wound (See the evidenoe of Dr. Jhala and Dr. Baliga). As regards the injuries found on the deadbody, 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 qualifications 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 qualifications 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.,.,..,; T"6 S1.i1 of M"""'..Atr• .IWh a.. .J. 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 murder 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 injuries 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 postmortems 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 injuries; 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 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 examination, 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 examination 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 caused 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 assailant were in each other's grip.

He gives reasons 1'61 K', M. Nuntwati The State ·of A-faharashlra S1d1ba Rao 1. K. M. Naruzvoli T/i, Siat. of Mall.,,,.htra S.Jiba Rao J. 13UPREME COURT REPORTS [1962] SUPP. for his opinion, namely, as there was no carbonaceous 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 suggestion.

He rules out this possibility because if the bullet first had an impact on the fingers, it would get deflected, lose its direction and would not be able to cause later injury No. 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 thereafter 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 assuming 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 J 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 abrasion 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 hitting the chest. We will presently show in considering injuries Nos. 2, 4 and 5 that the said injuries were due to the hit by one bullet. If that be so, a bullet, which had caused the said three injuries and then took a turn through the little and the ring finger, could not have retained sufficient velocity to cause the abrasion collar in the chest. Nor has Dr. Baliga controverted the reasons given by Dr. 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 examination.

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 fracture of the vault of the skull. The injury was effected 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. K. M. N ana.Pati 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 intracranial 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. fracture 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 direction in which the bullet . grazed. Hefurther. 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 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 nobody'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 1k Stute : .• ~ MaltaraJLh·~ Sutho Ras .. '.!. lffl X.M.N-i TJ.,Sl.u of JlollatoshlTa BubO. R•J. 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 arriving at the conclusion of the point of impact of the bullet." He also contradicts the opinion of Dr. Jhala that injury No. 3 could not be 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 Forensic 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 narrower 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 gutter. This observation bas not been shown to us to be wrong. When asked on what scientific principle he would support his opinion, Dr. Baliga could not give any such 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. narrower and little broader at the far end. He agrees that when a conical bullet hits a hard bone it means that the hard bone is protruding in the path of the projectile and also agrees that after the initial impact the bullet adjusts itself in the new direction of flight and that the damage caused at the initial point of the impact would be more than at any subsequent point.

Having agreed so far, he would not agree on the admitted hypothesis that at the initial point of contract the wound should be wider than at the exit. But he admits that he has no authority to support his submission. Finally, he admits that generally the breadth and the depth of the gutter wound would indicate the extensive nature of the damage. On this aspect of the case, therefore, the witness has broken down and his assertion is not based on any principle or on sufficient data. The next statement he makes is that he does not agree that the fracture of the inner table shows that the initial impact was from behind ; but he admits that the fracture of the inner table is exactly below the backside of the gutter, 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 material 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 rebounding and causing a fracture of a hard bone or whether he has any text-book to support his statement, he says that he cannot quote any instance nor K. M. Nanavali Tiu Stau of M aharashlra SubboRao J. r I i ' ' G. " • I r, • r K. JI. Nawn;ati Thi State of M aharashtr1:1. Suhha Rao J.·. an authority. But he says that it is so mentioned in several books. Then he gives curious definitions of the expressions " likely to cause death ,, ' "necessarily fatal " etc. He would go to the extent of saying that in the case of injury No. 3, the chance of recovery is up to 80 per cent. ; but finally he 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 experience in that line. When he is asked if after injury No. 3, the victim could have continued the struggle, he says that he could have, though he adds that it _ was unlikely after the victim had received both injuries Nos. 1 and 3 .. He admits that the said injury can be caused both ways, that is, by a bullet hitting either on 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 nature 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 imaginary 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 :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 definitely of the view that these wounds could ·not have been received by the victim during a struggle ·in which both of them were in each other's grip. It l~·iJ K, M. NanatMti Thi State of Maharashlra IHI K.M.Norto"'°li 71t1 S11111 of ,\f.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.rbonaoeous 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 causing 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 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 thickness between the said two fingers, the amount of deflection is negligible. But he concludes by saying that he is not saying this as an expert in ballistics. If so, the bullet could 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 towards 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 suggested 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- T/t,$141,t ef Maluzriuldfa Sobba Bu J. K. M. Nana~tJtj 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 deceased. · · . It was natural ·.· that . the accused was enraged ··at: the conduct · · of the· deceased and had, therefore, •sufficient· motive to do· away with.the :deceased. ;He ·deliberately· secured the revolver-on a false pretext from the-'ship, ;drove to the' flat of·Ahuja,.entered ·his bed-room 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 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 intentional 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 Th' 5tat< of Maha"uh.t.~• S1ibbQ Rt1.o J. lHI ~. hf. NOM..ti Tlw s- •f s.o.a.. ·'· self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident". Homicide is the killing of a human being by another. Under this exception, culpable homicide is not murder if tho following conditions are complied 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 deprivatic.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 seduction was comm:unicated to the accused by Sylvia and that for the ascertainment of the ~uddennt>sa 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. Provocation, to h11.ve that result, must be suoh as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act which causes death .................. The test to be applied is that of the 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 . 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 neckuntil 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 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,. ..... circumstances 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, 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 following principles: (l)

Except in circumstanoes of most extreme and exceptional character, a mere confession of adulwry is not enough to reduce the offence of murder to manslaughter. (2) The act of provocation which reduced the offence of murder to manslaughter must be such as to cause a sudden and temporary loss of self-control; and it must be distinguished from a provocation which inspires an actual intention to kill. (3) The act should have been done during the continuance of that state of mind, that is. before there was time for pa88ion to cool and for reason to regain dominion over the mind. (4) The fatal blow should be clearly traced to the influence of passion arising from the provocation. On the other hand, in India, the first principle has never been followed. That principle 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 distinction.

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 passioexcited 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 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 already enraged by the conduct of deceased's son." It will be seen in this case that abusive languageof the foulest kind was held to be sufficient in the case of man whc was already enraged by the conduct of deceased's son. The same learned Judge in a later decision in Boya Munigadu v. The Queen (') upheld plea of grave and sudden provocation in the following circumstances:

The accused saw the deceased when she had cohabitation with his bitter enemy; that night he had no meals; next morning he went to the ryots to get his wages from them, and at that time he saw his wife eating food along with her paramour; he killed 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 TI>. Sui. •f M aJia41Jilro s~ia Ra• J, 678 SUPRE.\fE COURT REPORTS (1962) SUPP. Judges held that the accusP-d h'id sufficient provocation 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 adultery but later on swore openly in the face of the husband that she would persist in such adultery and also abused the husband for 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 confession of illicit intimacy with, and consequent pregnancy 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. 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 provocation coming on top of all that had gone before was sufficient to bring the case within the first exception to s. 300 of the Indian Pclnal Code.

So t<Jo, where a womau Wai leading a notorlou>ly immoral life, and on the previous night mysteriously 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 Muhammad v. Emperor('), held that the case was governed by the said exception. The following observations of the court were relied upon in the present case : "In the present 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 consideration the previous conduct of the woman ... As stated above, the whole unfortunate affair ·(I) LL.R. (1929]

Lahore 861, 863. INJ K. M. NanavtJti Tiu State of Maharashtra Subba B .. J. IHI K. JI. N.,.,..1; Tiu 81.U of M aAarosltl10 Sobl• Rao J. 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 circumstances 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 compromising position with the deceased killed the latter subsequently when the deceased came, in his absence, to his house in another village to which he had moved. The learned Judges observed : "The appellant when he came to reside in the Government House Orchard felt that he had removed his wife from the influence of the deceased and there was no more any contact 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 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 intimacy 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 circumstances depends upon the customs, manners, way of life, traditional values etc. ; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there 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 circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja. deliberately. The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of "grave JPOI K.M.N......,;

The State q/ M&Jluita•htra Sr<ibaR .. J. 11161 1,;, M. N anatali T/14 S1au of M aharo.sAJra Subba Rao J. 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 accused 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 background 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 argument 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 explanation 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 business 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. 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 accusedthough 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 deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception 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 dismissed. Appeal dismissed.

BIRAJMOHAN DAS GUPTA 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 Oontrollu-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 ., he se'Jte of /11ah6rashtra Subba BJo J. · elllfflbcr 21