Judges: K. Subba Rao, Raghubar Dayal and S.K. Das

Facts:

The Appellant, K.M. Nanavati was an Indian Naval Officer. He was shifted to Bombay with his wife Sylvia and their children. The Family met the businessman named Prem Bhagwan Ahuja (deceased) and his sister in Mumbai. When Appellant was away from Bombay on his official duty, his wife fell in love with deceased and developed Illicit relations with him. When Appellant returned from his ship, the Appellant's wife confessed to him about her Illicit relationship with deceased. In the heat of agony, Appellant went to his ship to procure a loaded revolver from where he went to the office of deceased. On not finding him at the office, the Appellant drove to deceased's residence and shot him dead.

The Appellant was charged under Section 302 as well as under Section 304, Part I of Indian Penal Code (IPC). He was tried by the Sessions Judge with the aid of special jury. The jury has given the verdict of "not guilty" by 8 : 1 under both the sections. The Sessions Judge being unsatisfied with the verdict of the jury has submitted the case under Section 307 of the Code of Criminal Procedure, 1898 (Cr.PC) to the Bombay High Court. The said reference was heard by a division bench of High Court. The two learned Judges has given separate judgments, but agreed that the accused was guilty of the offence of murder under Section 302 of IPC and sentenced him to undergo rigorous imprisonment for life. Both the Judges agreed that no case had been made out to reduce the offence from murder to culpable homicide not amounting to murder. Hence, the present appeal has been preferred against the said conviction and sentence.

Issues:

(i) Whether under section 307 of Cr.PC, the HC has jurisdiction to consider the evidence and come to a conclusion that reference made to the HC is competent or not?

(ii) Whether the High Court was right in holding that there were misdirections in the charge to the jury?

(iii) Whether there is sufficient evidence to prove that Appellant intentionally shot the deceased and killed him?

(iv) Whether the deceased has given provocation to Appellant within the meaning of the exception to Section 300 of IPC and whether the provocation, if given by him, was grave and sudden?

Law:

Code of Criminal Procedure, 1898 - Section 307 - Procedure where Sessions Judge disagrees with verdict - (1) If in any such case the Judge disagrees with the verdict of the jurors, or of a majority of the jurors, on all or any of the charges on which the accused has been tried, and is clearly of opinion that it is necessary for the ends of justice to submit the case to the High Court, he shall submit the case accordingly, recording the grounds of his opinion, and, when the verdict is one of acquittal, stating the offence which he considers to have been committed; (2) Whenever the Judge submits a case under this section, he shall not record judgment of acquittal or of conviction on any of the charges on which the accused has been tried, but he may either remand the accused to custody or admit him to bail.; (3) In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict the accused of any offence of which the jury could have convicted him upon the charge framed and placed before it; and, if it convicts him, may pass such sentence as might have been passed by the Court of Session.

Contentions:

Appellant

(i) Under Section 307 of the Cr.PC, the High Court should decide whether a reference made by a Sessions Judge was competent only on a perusal of the order of reference made to it and it had no jurisdiction to consider the evidence and come to a conclusion whether the reference was competent or not.

(ii) Under Section 307 of the Cr.PC, the High Court had no power to set aside the verdict of a jury on the ground that there were misdirections in the charge made by the Sessions Judge.

(iii) There were no misdirections at all in the charge made by the Sessions Judge; and indeed his charge was fair to the prosecution as well to the accused.

(iv) The verdict of the jury was not perverse and it was such that a reasonable body of persons could arrive at it on the evidence placed before them.

(v) In any view, the accused shot at the deceased under grave and sudden provocation, and therefore, even if, he had committed an offence, it would not be murder but only culpable homicide not amounting to murder.

Analysis:

Jurisdiction of HC to consider evidence while deciding competence of reference

(i) The competency of a reference made by a Sessions Judge depends upon the existence of two conditions, namely, (i) that he disagrees with the verdict of the jurors, and (ii) that he is clearly of the opinion that the verdict is one which no reasonable body of men could have reached on the evidence, after reaching that opinion, in the case submitted by him he shall record the grounds of his opinion.

(ii) If the case submitted shows that the conditions have not been complied with or that the reasons for the opinion are not recorded, the High Court may reject the reference as incompetent. The High Court can also reject it if the Sessions Judge has contravened Section 307 of Cr.PC.

(iii) If the case submitted shows that the Sessions Judge has disagreed with the verdict of the jury and that he is clearly of the opinion that no reasonable body of men could have reached the conclusion arrived at by the jury, and he discloses his reasons for the opinion, Section 307(3) of Cr.PC comes into play, and thereafter the High Court has an obligation to discharge its duty imposed thereunder.

(iv) Under Section 307(3) of Cr.PC, the High Court has to consider the entire evidence and, after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict the accused.

(v) The High Court may deal with the reference in two ways, namely, (i) if there are misdirections vitiating the verdict, it may, after going into the entire evidence, disregard the verdict of the jury and come to its own conclusion, and (ii) even if there are no misdirections, the High Court can interfere with the verdict of the jury if it finds the verdict "perverse in the sense of being unreasonable", "manifestly wrong", or "against the weight of evidence", or, in other words, if the verdict is such that no reasonable body of men could have reached on the evidence.

(vi) 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. and thus, it can consider the evidences.

Misdirections in the charge

(i) Misdirection is something which a judge in his charge tells the jury and is wrong or in a wrong manner tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to misdirection.

(ii) So far as first omission related to no reference being made to Section 105 of the Evidence Act in the charge and failure of Session Judge in explaining the legal ingredients of Section 80 of IPC to Jury is concerned, it could be said that due to these omission being the laymen, failed to understood the legal implications of Section 80 of IPC and the scope of the burden of proof under Section 105 of the Evidence Act, and gave their verdict correctly. It could also be said that jury failed to understand the distinction between the ingredients of the offence and the circumstances that attract Section 80 of IPC and the impact of the proof of some of the said circumstances on the proof of the ingredients of the offence. The said omissions therefore are very grave omissions and certainly vitiated the verdict of the jury.

(iii) Another misdirection is that the Sessions Judge told the jury that the prosecution relied on the circumstantial evidence and asked them to apply the stringent rule of burden of proof applicable to such cases, whereas in fact there was direct evidence available in the shape of extra-judicial confession. The court observed that there is no dispute that the extra-judicial confession is direct piece of evidence and that the stringent rule of approach to circumstantial evidence does not apply to it. If that confession was true, it cannot be disputed that the approach of the jury to the evidence would be different from that if that was excluded. It is not possible to predicate that the jury did not accept that confession and therefore applied the rule of circumstantial evidence. It may well have been that the jury accepted it and still were guided by the rule of circumstantial evidence as pointed out by the learned Sessions Judge. In these circumstances, this misdirection must be considered as a grave misdirection affecting the correctness of the verdict.

Evidence to prove intention to kill

(i) It has been established that the deceased seduced the Appellant's wife. She had confessed to Appellant of her illicit intimacy with the deceased. The Appellant 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 deceased, entered his bed-room unceremoniously with a loaded revolver in hand and in about a few seconds thereafter came out with the revolver in his hand. The deceased was found dead in his bathroom with bullet injuries on his body. It is not disputed that the bullets that caused injuries to deceased emanated from the revolver that was in the hand of the Appellant. After the shooting, till his trial in the Sessions Court, he did not tell anybody that he shot the deceased by accident. Indeed, he confessed his guilt and practically admitted the same to his colleague. His description of the struggle in the bathroom is highly artificial and is devoid of all necessary particulars. The injuries found on the body of the deceased are consistent with the intentional shooting and the main injuries are wholly inconsistent with accidental shooting when the victim and the assailant were in close grips. The other circumstances brought out in the evidence also establish that there could not have been any fight or struggle between the accused and the deceased.

(ii) Therefore, the prosecution has proved beyond any reasonable doubt that the accused has intentionally shot the deceased and killed him.

Provocation - Whether sufficient or not

(i) No abstract standard of reasonableness can be laid down for the application of the doctrine of "grave and sudden" provocation. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.

(ii) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control.

In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of IPC.

(iii) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.

(iv) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.

(v) In present case, when the Appellant's wife confessed to him that she had illicit intimacy with deceased, the latter was not present. In such situation, it can be assumed that the Appellant had momentarily lost his self-control. The circumstances and statements of Appellant itself show that the he had not only regained his self-control, but also planning for the future. Between the time when Appellant left his house, and when the murder took place, three hours had elapsed. Therefore, there was sufficient time for the Appellant to regain his self-control, even if he had not regained it earlier. On the other hand, the Appellant's conduct clearly shows that the murder was a deliberate and calculated one. 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. Therefore, the facts of the case do not attract the provisions of Exception 1 to Section 300 of IPC.

Conclusion:

(i) Conviction of the accused under Section 302 of IPC and sentence of imprisonment for life passed on him by the High Court are correct. There are absolutely no grounds for interference. The appeal thus dismissed.