"Nothing herein    contained shall authorise the Court to alter or reverse the verdict of     a jury, unless it is of opinion that such    verdict is erroneous owing to     a misdirection by    the Judge, or to     a misunderstanding on the part of the jury of the law as laid down by him."

It may    be argued that, as an appellate court cannot alter or reverse the verdict of a jury unless such a verdict    is erroneous owing to     a misdirection by the Judge, or     to     a misunderstanding on the part of the jury of the law as     laid down by    him, the High    Court,    in exercise of its jurisdiction under s. 307 of the Code, likewise could not do so except for the said reasons. Sub-section (2) of s. 423 of the Code does not confer any power of    the High Court; it only restates     the    scope    of the limited jurisdiction conferred    on the    could under s. 418 of the     Code,     and that Could not     have any application to    the special jurisdiction conferred on the    High Court under s. 307. That     apart,     a perusal of the provisions of s. 423 (1) indicates that there are powers    conferred on an appellate court which cannot possibly be exercised by courts disposing of reference under s. 307 of the Code, namely, the power to order commitment etc. Further s. 423    (1) (a) and (b) speak of conviction, acquittal, finding and sentence, which are wholly inappropriate to verdict of a jury. Therefore, a reasonable construction     will be that the High Court can exercise-any of the powers conferred on an appellate court under s. 423 or under either sections of the Code which are appropriate to the disposal of a, reference under s. 307. The object is to prevent miscarriage of the justice by the jurors returning erroneous

or preverse verdict. The opposite construction defeats     this    purpose, for    it equates the jurisdiction conferred    under s. 307 with that of an appellate    court in a jury trial. That construction would enable the High     Court    to correct an erroneous verdict of a jury only in a case of     misdirection by the Judge but not in a case affair and good charge. This result effaces the distinction between the     two    types    of jurisdiction. Indeed,    learned     counsel for the appellant has taken a contrary position. He would say that the High Court under s. 307 (3) could not interfere with    the verdict of the jury on the ground that there were misdirections in the charge to the    jury. This argument is built     upon the hypothesis that under the    Code of criminal Procedure there     is a clear demarcation of the functions of the jury and the     Judge,     the jury dealing with facts and     the Judge with the and therefore the High Court could set aside a verdict on the    ground of misdirection only when an appeal comes to it under s. 418 and could only interfere with the verdict of the jury    for the ends    of justice, as interpreted by the Privy Council, when the matter comes to it under 8. 307 (3). If this interpretation     be accepted, we would    be attributing to    the Legislature     an intention    to introduce a circuitous method and confusion in the disposal of criminal     cases. The     following illustration will demonstrate the illogical result of the argument. The jury brings in a verdict of "guilty" on the basis    of a charge replete with misdirections;    the Judge disagrees    with that verdict and states the case to the High court; the High Court holds that    the said verdict is not erroneous on the basis     of the     charge, but is of the opinion that the verdict is erroneous because of the    misdirections in the charge; even so, it shall hold that the verdict of the jury is good and reject the reference thereafter, the Judge his to accept the verdict and acquit the accused; the prosecution then will have

588

to prefer an appeal under s.    417 of the Code on the ground that the verdict was induced by the misdirections in the charge. This could not have been the intention of    the Legislature. Take the converse case.    On similar facts, the jury brings in a verdict of guilty"; the Judge disagrees with the jury and makes a reference to the High Court; even though it finds misdirections in the charge to the    jury, the High Court cannot set aside the conviction but    must reject the reference; and after the conviction, the accused may     prefer an appeal to the High Court. This procedure will introduce confusion in jury    trials,     introduce multiplicity of proceedings, and     attribute ineptitude to the Legislature. What is more, this construction is not supported by the express provisions of s. 307 (3) of the Code. The said sub-section enables the High Court to consider the entire    evidence, to    give due weight to the opinions of the Sessions Judge and the jury, and to acquit or convict the accused. The key words in the sub-section     are "giving due weight to the opinions of the Sessions Judge and the jury". The High Court shall give weight to the verdict of the jury; but the weight to be given to    a verdict depends upon many circumstances-it may be one that no reasonable body of    persons could come to; it may be    a perverse verdict; it     may be     a divided verdict and may not carry the same weight as the united    one does; it     may    be vitiated    by misdirections or non-directions. How can a Judge give any weight to a verdict if it is induced and vitiated by grave misdirections in the charge ? That apart, the High Court has to give due weight to the    opinion of the Sessions Judge. The reasons for the opinion of     the Sessions    Judge are disclosed in the case submitted by him to the High Court. If the case stated by    the sessions Judge disclosed that    there must have been misdirections the charge, how. can the High Court ignore them in giving due weight to his

589

opinion ? What is more, the jurisdiction of the High Court is couched in very wide terms in sub-s. (3) of    s. 307    of the    Code: it can    acquit    or convict     an accused.     It shall take into consideration the entire evidence in the case; it shall give due weight to the opinions of the Judge and the     jury; it combines in itself the functions of the    Judge and jury; and it is entitled to come to its    independent opinion. The phraseology used does not admit of    an expressed or implied limitation on the jurisdiction of the High Court. It     appears to us that the Legislature designedly conferred a larger power on the High Court under s.     307(3)     of the code    than that conferred under     s. 418     thereof, as in the former case the Sessions Judge differs from     the jury while in the latter he agrees with the jury. The decisions cited at the Bar do not in any way sustain in narrow    construction sought to be placed by learned counsel on s. 307 of the code. In Ramanugrah Singh's case (1), which     have been referred to earlier,     the Judicial     Committee described the wide amplitude of the power of the High Court in the following terms:

"The Court must consider the whole case and give due weight to the opinions of the Sessions Judge and jury,    and than acquit or convict the accused."

The Judicial Committee took care to observe: ".... the test of reasonableness on the part of the jury may not     be conclusive    in every case. It is possible to suppose a case in which the verdict was justified on the evidence placed before the jury, but in the light of further evidence     placed before the High Court     the verdict is shown to be wrong. In such case the ends of justice would 590

require the verdict to be set aside though the jury had not acted unreasonably." This passage indicates that the Judicial Committee did not     purport to lay down     exhaustively the circumstances under which the    High Court could interfere under     the said sub-section     with the verdict of the     jury. This Court in     Akhlakali Hayatalli v. The State of Bombay accepted the view of the    Judicial Committee on the construction of s. 307    of the    Code of     Criminal Procedure, and applied it to the facts of that case. But the following passage of this Court indicates that it also does not consider the test of reasonableness as the    only guide in interfering with the verdict of the jury:

"The charge was not attacked before the High court     nor before us as containing any misdirections or non-directions to the jury such as to vitiate the verdict."

This passage    recognizes the     possibility    of interference by the High Court with the verdict of the jury under the said sub-section if the verdict is vitiated by misdirections or non-directions. So too the decision of this court in Ratan Rai v. State of Bihar assumes     that such an interference is permissible if the    verdict of the     jury was vitiated by misdirections. In that    case, the appellants were     charged under    ss. 435 and 436 of the Indian Penal Code    and were tried by a jury, who returned a majority verdict of "guilty". The Assistant Sessions Judge disagreed with the said verdict and made a reference to the High Court. At the hearing of the reference to counsel for the appellants contended that the    charge to the jury was defective,     and did not    place the entire evidence before     the Judges. The learned Judges of the High Court considered the objections as such and nothing more, and found the appellants guilty and convicted them. This Court, observing that it was incumbent on the High

591

Court to consider the    entire    evidence and the charge as framed and placed before the jury and to come to     its own conclusion whether the evidence was such that could properly support the verdict of guilty against the     appellants, allowed the appeal and remanded the matter to the High Court for disposal in accordance with the provisions of s. 307    of the    Code of     Criminal Procedure. This decision also assumes that a    High Court could under s. 307 (3) of the Code of Criminal Procedure interfere with    the verdict of the Jury, if there are misdirections in the charge and holds that in such a    case it is incumbent    on the     court    to consider the entire evidence and to come to its own conclusion,     after giving due weight to the opinions of the Sessions Judge, and the verdict of the jury. This Court again in Sashi Mohan Debnath v. The    State of West Bengal, held that where the Sessions Judge    disagreed with    the verdict of the jury and was of the opinion that the case should be submitted to the High Court, he should submit the whole case and not a part of it. There, the jury returned a verdict of "guilty" in respect of some charges and "not guilty" in respect    of others.     But the Sessions Judge recorded his judgment of acquittal in respect of the latter charges in agreement with the jury and referred the case to the High Court only in respect of the former. This Court held that the said procedure violated sub-s.     (2) of     s. 307     of the Code    of Criminal Procedure and also had the    effect    of preventing the    High Court from considering the entire evidence against the accused and exercising its jurisdiction under sub-s. (3) of s. 307 of the said Code. Imam, J., observed that the reference in that     case was incompetent and that the High Court could not proceed to exercise any of the powers conferred upon it under sub-s.     (3) of s. 307 of    the Code, because the    very foundation of the exercise of that     power    was lacking, the reference being incompetent. This

592

Court held that the reference was incompetent because the Sessions Judge contravened the express provisions of sub-s. (2) of s. 307 of the Code, for under that sub-section    whenever a Judge submits a case under that section, he shall not record judgment     of acquittal or of conviction on any of    the charges on which such accused has been tried, but he may either remand such accused to custody or admit him to bail. As in that case the reference was made in contravention of the express provisions of sub-s. (2) of s. 307 of the Code and therefore the use of the word 'incompetent' may not be    in appropriate. The decision of a division bench of the Patna High Court in Emperor    v. Ramadhar Kurmi    may usefully be referred to as it throws some light on the question whether the High Court can interfere with the verdict of the jury when it     is vitiated by serious misdirections and non-directions. Das, J., observed:

"Where, however, there is misdirection, the principle embodied in s. 537 would apply and if the verdict is erroneous owing to the misdirection, it can have     no weight on     a reference under s. 307 as on an appeal. It is not necessary to multiply decisions. The foregoing discussion may be summarized in the form of the    following propositions: (1) The competency of a reference made by a Sessions Judge depends upon the existence of two conditions, namely, (i) that he     disagrees with the verdict of the jurors, and (ii) that he is clearly of the opinion that the verdict is one which no reasonable body of men could have reached on the evidence, after reaching that opinion, in the case submitted by him    he shall record the grounds of his opinion. (2) If the case submitted shows that the conditions have not been complied with or that the reasons for the opinion are not recorded, the High    Court may reject the reference as incompetent : the 593

High Court can also reject it     if the Sessions Judge has contravened sub-s. (2) of s. 307. (3) If the case submitted shows that the Sessions Judge has disagreed with the     verdict of the jury and that he is clearly    of the     opinion that    no reasonable body     of men     could    have reached the conclusion arrived at by the jury, and    he discloses his reasons for the opinion, sub-s. (3) of s. 307 of    the Code comes into    play, and thereafter the    High Court has an obligation    to discharge its duty imposed thereunder. (4) Under sub-s. (3) of s. 307 of the Code, the High Court has to    consider the entire evidence and, after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict the accused. (5) The     High Court may deal with the reference in two ways, namely, (i)    if there are misdirections vitiating the verdict, it may, after    going into the entire evidence, disregard the verdict of the jury and come to its own conclusion, and (ii) even if there are no misdirections, the High court can interfere with the verdict of the jury if it finds the verdict "perverse     in the sense     of being unreasonable", "manifestly wrong", or "against the wight of evidence", or, in other words, if the verdict is such that no reasonable body of men could have reached on    the evidence. (6) In the disposal of the said reference, the High Court can exercise any of the procedural powers appropriate to the    occasion, such     as, issuing of notice, calling for records, remanding the case, ordering a retrial, etc. We therefore, reject    the first contention of learned counsel for the appellant. The next question is whether the High Court was right in holding that there were misdirections in the     charge     to the jury.     Misdirections    is something which     a judge in his charge tells the jury and is wrong or in a wrong manner tending to mislead them. Even an omission to mention matters which are essential to     the prosecution or the defence case in order to help the jury to come to a correct

594

verdict may also in certain circumstances amount to a misdirection. But, in either case, every misdirection or     non-direction is not    in itself sufficient to set aside a verdict, but it must be such that it has occasioned a failure of justice. In Mushtak     Hussein v. The State    of Bombay, this Court laid down:

"Unless therefore it is established in a case that     there     has    been a serious misdirection by the judge in charging the jury which has    occasioned a failure    of justice and has misled the jury in giving its verdict, the verdict of the jury     cannot be set aside."

This view has been restated by this Court in a recent decision, viz., Smt. Nagindra Bala Mitra v. Sunil Chandra Roy.

The High Court in its judgment referred to as many as     six misdirections in the charge to the jury which in its view vitiated the verdict, and it also stated that    there were many others. Learned counsel     for the appellant had taken each of the said alleged misdirections and attempted to demonstrate that they were either no misdirections at all,     or even if they were, they did not in any way affect the correctness of the verdict. We shall now take     the first and the third misdirections pointed out by Shelat, J., as they are intimately connected with each other. They are really omissions. The     first    omission is that throughout the entire charge there is no reference to s. 105 of the Evidence Act or to the statutory presumption laid down in that section. The second omission is that the Sessions     Judge    failed    to explain to the jury the legal ingredients of s. 80 of the    Indian Penal Code, and also    failed    to direct them that in law the said section was not applicable to the facts of the case. To appreciate the scope of the alleged

595

omissions, it is necessary to read the relevant provisions.

Section 80 of the Indian Penal Code. "Nothing is an offence which is done by accident or misfortune, and without any criminal intention     or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution." Evidence Act.

Section 103:    "The burden of proof as to any particular fact lies    on that person who wishes the Court to believe in its existence, unless it    is provided by any law that the proof of     that fact shall lie on any particular person."

Section 105:    "When a     person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any     of the     General Exceptions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained in any other part     of the     same Code, or in any law defining the offence, is    upon him, and the Court shall presume the     absence of such circumstances."

Section 3: "In this    Act the     following words and     expressions are used in the following senses, unless a contrary intention appears from the context:-

A fact is said to be disproved when, after considering    the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent    man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist." 596

Section 4: ....."Whenever it is directed by this Act that    the Court shall presume a fact, it shall regard such fact    as proved unless and until it is disproved."

The legal impact of the said    provisions on the question of burden of proof may be stated thus: In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilty of the accused; to put it    in other words, the accused is presumed to    be innocent until    his guilt is established by the prosecution. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, s. 105 of the Evidence Act raises a presumption against the accused and also throws    a burden on     him to rebut the said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved. An illustration     based on the facts of the present case may bring out the meaning of     the said provision. The     prosecution alleges     that the accused intentionally shot the     deceased; but the accused pleads    that, though the shots emanated from his revolver and hit the deceased, it was by accident, that is, the shots went off the revolver in the    course of a struggle in the circumstances mentioned in s. 80 of the Indian Penal Code and hit the deceased resulting in his death. The Court then shall presume the     absence of circumstances bringing the case within the provisions of s. 80 of the    Indian    Penal Code, that is,     it shall presume that the shooting was not by accident, and that the other circumstances bringing     the case within the exception did not     exist;     but this presumption may     be rebutted by the accused    by adducing evidence to

597

support his plea of accident in the circumstances mentioned therein. This presumption may also    be rebutted by admissions made     or circumstances elicited by the evidence led by the prosecution or by the    combined effect     of such circumstances and the evidence adduced by the    accused. But the section does not in any way affect the burden that lies on the    prosecution to prove     all the ingredients of    the offence with which the accused is charged: that burden never shifts. The alleged conflict between the general burden which lies on the prosecution     and the special burden imposed on the accused under s. 105 of the Evidence Act is more imaginary    than real. Indeed, there is    no conflict at all. There     may arise three different situations: (1)     A statute may throw the burden of proof of all or some of the ingredients of    an offence on the accused: (see ss. 4 and 5 of the Prevention of Corruption Act).     (2) The special burden    may not touch     the ingredients of the offence, but only the    protection given on the assumption of the proof of the said ingredients: (see ss. 77,78,79,81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception if proved affecting the proof of all or some of the ingredients of the offence: (see s. 80 of the    Indian Penal Code). In the first case the burden of proving the    ingredients or some of the ingredients of    the offence, as the case may be, lies on     the accused. In the    second    case, the burden of bringing the     case under the exception lies on the accused. In the third case, though the burden lies on the accused to bring     his case within the exception, the facts proved may not discharge the said burden, but may affect the proof of the ingredients of     the offence.    An illustration may bring out    the meaning. The prosecution has     to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of s. 300 of the Indian

598

Penal Code; the prosecution has to    prove the ingredients of    murder, and one of the ingredients of that     offence is that the accused intentionally shot the deceased; the accused pleads that he shot at the    deceased by accident without any intention or knowledge in the doing of    a lawful act in a lawful manner by lawful means with proper care and caution; the accused against whom a presumption is drawn under s. 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in s. 80 of the Indian Penal Code, may adduce evidence     to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of s. 80 of the Indian Penal Code, but may prove that the shooting was by accident    or inadvertence, i.e., it was    done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of s. 300, Indian Penal Code, or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder.     In that event though the accused failed    to bring his case within the terms of s. 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the     accused. In this view it     might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute    to the contrary, is always on the    prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The    failure on the part of the accused     to establish     all the circumstances bringing his case under the exception     does not absolve the prosecution to prove the ingredients of the     offence; indeed, the     evidence, though insufficient to     establish the    exception, may    be sufficient to     negative one     or more of the ingredients of the offence.

599

The English decisions relied upon by Mr. Pathak, learned     counsel for the accused, may not be of much help in construing the provisions of s. 105 of     the Indian    Evidence Act.    We would, therefore, prefer not to refer to them, except to one of    the leading decisions     on the subject, namely, Woolmington v.     The Director    of Public Prosecutions. The headnote in that decision gives its gist, and it read:

"In a     trial for murder the    Crown must prove death as the result of a voluntary act of the prisoner and malice of the prisoner. When evidence of death and malice has been given, the     prisoner is entitled to show by evidence    or by examination     of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of    all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner    is entitled to be acquitted."

In the    course of the judgment Viscount Sankey, L. C., speaking for the House, made the     following observations:

"But while the prosecution must prove the guilt    of the    prisoner, there is no such burden laid on the prisoner to    prove his innocence and it is sufficient for him    to raise a doubt as    to his    guilt; he is not bound to     satisfy the jury     of his innocence...... Throughout     the web of the English Criminal Law one golden    thread    is always to    be seen that it is the duty of the prosecution to prove the     prisoner's guilt subject to what I have already said as to the defence of     insanity and subject also to any statutory exception. If,

600

at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either    the prosecution or the prisoner, as    to whether the prisoner killed the deceased with a     malicious intention, the prosecution has not made out the case and the    prisoner is entitled to an acquittal."

These passages     are not in conflict     with the opinion expressed by us earlier. As in England so in India, the prosecution must prove the guilt of the accused, i.e., it     must establish all the ingredients of     the offence with which he    is charged. As in England     so also in India, the general burden    of proof is upon the prosecution; and if,     on the     basis of the evidence adduced by the prosecution     or by    the accused, there is     a reasonable doubt whether the accused committed the offence, he is entitled to the benefit of doubt. In India if an accused pleads an exemption within the meaning of s. 80 of the Indian Penal Code, there is a presumption against him and the burden to rebut that presumption lies on him. In England there is no provision    similar to s. 80 of the Indian Penal Code, but     Viscount Sankey, L. C., makes it clear that such a burden lies upon the accused if his defence is one of insanity and in a case where there is a statutory exception to the general rule of burden of proof. Such an exception we find     in s.    105 of    the Indian Evidence Act. Reliance is placed by    learned counsel for the accused on the decision of the Privy Council in Attygalle v. Emperor in support of the contention that notwithstanding s. 105 of the Evidence Act, the burden of establishing the absence of accident within the meaning of    s. 80 of the Indian Penal Code is     on the     prosecution. In that    case, two persons were prosecuted, one for performing    an illegal operation and the other for abetting him in that crime. Under s. 106 of the Ordinance 14 of 601

1895 in     the Ceylon Code, which corresponds to s. 106 of    the Indian Evidence Act, it was enacted that when any    fact was especially within the knowledge of any person, the burden of proving that fact was upon him. Relying upon that section, the Judge in his charge to the jury said: "Miss Maye-that is the person upon whom the operation was alleged to    have been performed-was unconscious and what took place in that room that     three-quarters of an hour that she was under chloroform is a fact specially within the knowledge of these two accused who were there. The burden of proving that fact,     the law says, is upon him, namely that no criminal operation took    place but what took place was this and this speculum examination."

The Judicial Committee pointed out:

"It is not the law of Ceylon that the burden is    cast upon an accused    person    of proving that no crime has been committed. The jury might well have thought from the passage just quoted that that was in fact a burden which the    accused person    had to    discharge. The summing-up goes on     to explain the presumption of innocence in favour of accused persons, but it again reiterates     that the burden of proving that no criminal operation took place     is on    the two     accused who were there."

The said observations do not support the contention of learned    counsel. Section 106    of Ordinance 14 of 1895 of the Ceylon Code did not cast upon the accused    a burden to prove that he had not committed any crime; nor did it deal with any exception similar to that provided under s. 80 of the Indian Penal Code. It has no hearing on the construction of     s.105 of the Indian Evidence Act. The

602

decisions of this Court in The State of Madras v. A. Vaidyanatha    Iyer (1), which deals with s. 4 of the Prevention of Corruption Act, 1947, and C.S.D. Swami v. The State(2),     which considers the scope of s. 5(3) of    the said Act, are examples of     a statute throwing the burden of proving and even of establishing the absence of some     of the ingredients of    the offence on the accused; and this Court held that notwithstanding the general burden on the prosecution to prove the offence, the burden of proving the     absence of the ingredients of the     offence under certain circumstances was on     the accused. Further citations are unnecessary as,    in our    view, the terms of s.105 of the Evidence Act are clear and unambiguous.

Mr. Pathak     contends that the accused did not rely upon any exception within the meaning of s.80 of the    Indian Penal Code and    that his plea all through has been only    that the prosecution has failed to establish intentional killing on his part. Alternatively, he argues that as the entire evidence has been adduced both by the prosecution and by    the accused, the burden of proof became only academic and the    jury was in a position to come to     one conclusion     or other on the evidence irrespective of     the burden of proof.    Before the Sessions Judge    the accused certainly relied upon s. 80 of the Indian Penal Code, and the Sessions Judge dealt with the defence case in the charge to the jury. In paragraph 6 of     the charge, the learned Sessions Judge stated:

"Before I proceed further I have    to point out    another section     which is section

80. You know by now that the defence of the accused is     that the firing of the revolver was a matter of accident during    a struggle for possession of the revolver. A struggle or a fight by itself     does not exempt a person. It is the accident which exempts     a person from criminal liability

603

because there may be a fight, there may be a struggle and in the fight and in the struggle the assailant may over-power the victim and kill the deceased so that a struggle or     a fight by itself does not exempt an assailant. It is only an accident, whether    it is    in struggle or a fight or otherwise     which can exempt an    assailant. It is only an accident, whether it     is in    a struggle or a fight or otherwise which can exempt a prisoner from criminal liability. I shall draw your attention to section 80 which says:........ (section 80 read). You know that     there are several provisions     which are to be satisfied before the     benefit of this exception can be claimed by an accused person and it should be that the act itself must be an accident or misfortune, there     should be no criminal intention or knowledge in the doing of that act, that act itself must be done in a lawful manner and     it must be done by lawful means and further in the doing of it, you must do it with proper care and    caution. In this connection, therefore, even while considering the case    of accident, you will have    to consider all the factors, which might emerge from the evident before you, whether it was proper care and caution to take     a loaded revolver without     a safety catch to the residence of the person with whom you were going to talk and     it you do not get    an honourable answer    you was repaired to thrash him. You have also to consider this further circumstance whether it is an act with proper care and caution    to keep that loaded revolver in the hand and thereafter put it aside, whether that is taking proper care and caution. This is again a question of fact and you have to determine as     Judges     of fact, whether the act of the accused in this case can be said to be an act which was lawfully 604

done in a lawful manner and with proper care and caution. If it is so, then and only then can you call it accident or misfortune. This is a section which you will bear in mind when you consider the evidence in this case." In this paragraph the learned Sessions Judge mixed up the    ingredients of    the offence with those of the exception.    He did    not place before the jury the distinction     in the     matter of burden of proof between the ingredients of the offence and those of the    exception. He did not    tell the jury that where the accused relied upon the     exception embodied in s. 80 of the Indian Penal Code, there was a statutory presumption against him and the burden    of proof was     on him to rebut that presumption. What is more, he told the jury that it was    for them to decide whether the act of the accused in the case could be    said to     be an act which was lawfully done in a    lawful manner with proper    care and caution. This was    in effect abdicating his    funtions in favour of the jury. He should have explained to them the implications of the terms "lawful act", "lawful manner", "lawful means" and "with proper care    and caution" and pointed out to them the application of the said legal terminology to the facts of the case.    On such a    charge as in the present case, it was not possible for the jury,     who were laymen, to know the exact scope of the defence and     also the circumstances under which the plea under s. 80 of the Indian Penal Code was made out. They would not have also known that if s. 80 of the Indian Penal Code applied, there was a presumption against the accused and the burden     of proof to    rebut the presumption was     on him. In such circumstances, we cannot predicate that    the jury understood the legal implications of s. 80 of the Indian Penal Code and the scope of the burden of proof under s. 105 of    the Evidence Act, and    gave their verdict correctly. Nor can we say that the jury understood the distinction     between the ingredients of the offence

605

and the     circumstances that attract s.     80 of the Indian Penal Code and    the impact of the proof of some of the said circumstances on the proof of the ingredients of    the offence. The said     omissions therefore are very grave omissions which certainly vitiated the verdict of the jury.

The next misdirection relates to the question of grave and sudden provocation. On this question, Shelat, J., made the following remarks: "Thus the question whether a confession of adultery by the wife of accused to him amounts to     grave and sudden provocation    or not was a question of law. In my view, the learned Session Judge was in error in telling the jury that the entire question was one of fact for them to    decide.     It was for the learned Judge to decide as a question of law whether the sudden confession by the wife of the accused amounted to    grave and sudden provocation as against the deceased Ahuja which on     the authorities referred    to hereinabove it was not. He was therefore in error in placing this alternative case to the jury for     their    determination instead    of deciding it himself."

The misdirection according to    the learned Judge was that the Sessions Judge in his charge did not tell the jury that the sudden     confession of the wife to     the accused did not in law    amount    to sudden and grave provocation by the deceased, and instead he left the entire question to be decided by the jury. The learned judge relied upon certain English decisions and textbooks in support of his conclusion that     the said question was one of law and that it was for the Judge to express his view thereon. Mr. Pathak contends that there is    an essential difference between the law of England and that of India in the matter of the charge to the jury in    respect     of grave and sudden provocation. The House of Lords

606

in Holmes v. Director    of Public Prosecution (1) laid down the law in England thus:

"If there is     no sufficient     material, even on    a view     of the evidence most favourable to the accused, for a jury (which means a reasonable jury)    to form     the view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces the death it is the duty of the judge as matter of law to direct    the jury that the evidence does not support a verdict of manslaughter. If, on the other    hand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject to     passion or loss of control as to be     led to use    the violence with fatal results, and (b) that the accused was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict."

Viscount Simon brought out the distinction between the respective    duties of the judge and the jury succinctly by formulating the following questions: "The distinction, therefore, is between asking 'Could the evidence support the view that the provocation was sufficient to lead a reasonable person to do what the accused did ?' (which    is for    the judge to rule), and, assuming that the judge's ruling is in affirmative, asking the     jury:     'Do you consider that, on the facts as you find them from the evidence, the provocation was    in fact enough to lead a reasonable person to do what the

607

accused did ?' and, if so, 'Did the accused act under the stress of such provocation' ?" So far as England is concerned the judgment of the House of Lords is the last word on the subject till it     is statutorily changed or modified by the House of Lords. It is not, therefore, necessary to consider the opinions of learned authors on the subject cited before us to show that     the said observations did not receive their approval. But Mr. Pathak contends that whatever might be the law in England, in India we are governed by the statutory    provisions, and that    under the explanation to Exception I to s. 300 of the Indian Penal Code, the question "whether the provocation was grave and sudden enough to prevent the offence from amounting    to murder is one of fact", and therefore, unlike in England,    in India both the aforesaid questions fall entirely within the scope of the    jury and they are for them to decide. To put it in other words, whether a reasonable person in the     circumstances     of a particular case committed the offence under provocation which was grave and sudden is a question of fact for the jury to     decide. There    is force in this argument, but it    is not    necessary to express    our final opinion thereon, as the learned Attorney-General has conceded that there was no misdirection in regard to this matter.

10. According to his evidence, on April 27, 1959, at about 4.45 P.M., he was standing at the window of his    study in his flat on the ground floor at New Queen's Road. His window     opens out on the road near the band stand. The accused came up to the window and he was in a dazed condition. The witness asked him what had happened, and the accused     told him "I    do not     quite    know what happened, but I think    I have    shot a    man." The witness asked him how it happened, and the accused told him that the man had seduced his wife and he would not stand it. When the witness asked him to come     inside and explain everything calmly, the accused said "No, thank you, I must go", "please tell me     where I should go and report". Though he asked him again to come in, the accused did not go inside and, therefore, this witness instructed him to go to the C.I.D. Office and report to the Deputy Commissioner Lobo. The accused asked him to phone to Lobo and he telephoned to Lobo and told him that an officer by name Commander Nanavati was involved in an affair    and that he was on the way to report to     him. Nanavati     in his evidence practically corroborates the evidence    of Samuel. Nanavati's version in regard to this incident is as follows:

"I told him that something terrible had happened, that I did not know quite what 637

had happened but I thought I had shot a man. He asked me where     this had happened. I told him at Nepean Sea Road. He asked me Why I had been there. I told him I went there because a fellow there had seduced my wife and I would not stand    for it.     He asked me many times to go inside    his room. But I was not willing to do so, I was anxious to    go to the police station. I     told Commander Samuel that there had been a fight    over a revolver. Commander Samuel asked to report to Deputy Commissioner Lobo."

The difference    between the two versions lies in the fact that while Nanavati said that he told Samuel    that something terrible had     happened, Samuel did not say that; while Nanavati said that he told     Samuel that there had been a fight over a revolver, Samuel did not     say that. But substantially both of them say that though Samuel asked Nanavati    more than once to get inside the house and explain to him everything calmly, Nanavati did not do so; both of them also deposed that the accused told Samuel, "I do not quite know what happened but I think I have shot a man." It may be mentioned that Samuel is a Provost Marshal of the    Indian navy, and he and the accused are of the same rank though the accused is    senior    to Samuel as Commander. As Provost Marshal, Samuel discharges police duties in    the navy. Is    it probable that     if the deceased was shot    by accident, the accused would not have stated that fact to     this witness?    Is it likely that he would not have stepped into his house, particularly when he requested him more    than once to come in and explain to him how the accident had taken place ? Would he not have taken his advice as a colleague before he proceeded to the police station    to surrender himself ? The only explanation for this unusual conduct on the     part of the accused    is that, having committed the murder, he     wanted to surrender himself to

638

the police and to    make a     clean    breast    of everything. What is more, when he    was asked directly that had happened he told him "I do not quite know what happened but I think I have shot a man". When he was further asked how it happened, that is, how he shot the man he said that the man had seduced his wife and that he would not stand for it.     In the     context, two    answers read along with the questions put to him by Samuel only mean that, as the deceased    had seduced his wife, the accused shot him as he would not stand for it. If really the accused shot the deceased by accident, why did he not     say that fact to his colleague, particularly when it     would    not only be his defence, if prosecuted, but     it would put     a different complexion to his act in the eyes of his colleague. But    strong reliance     is Placed on what this Witness stated in the cross-examination viz., "I heard the word fight from    the accused",    "I heard some other words     from the accused but     I could not make out a sense out of these words". Learned counsel for the accused contends that this statement shows     that the accused mentioned    to Samuel that the shooting of tho deceased was in a fight. It is not possible to build    upon such slender foundation that the accused explained to Samuel that he shot the deceased by accident in a struggle. The statement in the cross-examination appears to us to be an attempt on the part of this witness to help his colleague by saying something which may fit in the scheme of his defence, though at the     same time he     is not willing to lie deliberately in     the witness-box, for he clearly says that he could not make out the sense of the words spoken along with the word "fight". This vague    statement of     this    witness, without particulars, cannot detract    from the clear evidence given by him in the examination-in-chief. What Nanavati said to the question put by the Sessions Judge     under    s. 342     of the Code    of Criminal Procedure supports Samuel's version. The 639

following question was put to him by the learned Sessions Judge :

Q.-It     is alleged against     you that thereafter as aforesaid you went to Commander Samuel at    about 4-45 P.M. and told him that, something terrible     had happened and that you did not quite know but you thought that you shot a man as he had seduced your wife which you could not stand and that on the advice of Commander Samuel you then went    to Deputy Commissioner Lobo at    the Head Crime Investigation Department office. Do you wish to say anything about this?

A.-This is correct.

Here Nanavati admits that he told Commander Samuel that he     shot the man as he had seduced his wife. Learned counsel     for the accused contends that the question framed was     rather involved and, therefore, Nanavati might not have understood its implication. But it appears from the     statement that, after the question were answered, Nanavati read his answers and    admitted that    they were correctly recorded. The answer is also consistent with what Samuel said    in his evidence as to what Nanavati told him. This corroborates the evidence of Samuel that Nanavati told him that, as the man had seduced his wife, he thought that he had shot him. Anyhow, the accused did not tell the Court that he told Samuel that he shot the deceased in a fight.

Then the accused, leaving Samuel, went to the office of the Deputy Commissioner Lobo. There, he made a     statement to     Lobo.     At that time, Superintendent Korde and Inspector Mokashi were also present. On the information given by him, Lobo directed     Inspector Mokashi to     take the accused into custody and to take charges of the articles and to

investigate the case.

640

Lobo says in his evidence that he received     a telephone call from Commander Samuel to the effect that he had    directed Commander Nanavati    to surrender himself to him as he had stated that J he had shot a, man. This evidence obviously cannot be used     to corroborate what Nanavati told Samuel, but it    would only be     a corroboration of the evidence of Samuel that he telephoned to Lobo to that effect. It is not denied that the accused set up the    defence of accident for the first time in the Sessions Court. This conduct of the accused from the time of the shooting     of Ahuja to the moment he surrendered himself    to the    police    is inconsistent with the defence    that the deceased was shot by accident. Though tho accused had many opportunities to explain himself, he did not do so; and     he exhibited the attitude of a man who wreaked out his vengeance in the manner planned by him and was only anxious to make a clean breast of everything to the police.

Now we will consider what had happened in the bed-room and bath-room     of the deceased. But before considering the evidence on this question, we shall try to describe the scene of the incident and other relevant particulars regarding the things found therein.

The building "Jivan Jyot" is situate    in Setalvad Road,    Bombay.     Ahuja was staying on the first floor of that building. As one goes up the stairs, there is a door leading into the hall; as one enters the hall and walks a few feet towards the north he reaches a door leading into bed-room of Ahuja. In the bed-room, abutting the southern wall there is a radiogram; just    after the radiogram there     is a door on    the southern wall leading to the bath-room, on the eastern side of the door abutting the    wall there is a cupboard with a    mirror thereon; in the bath-room, which is of the    dimensions 9 feet x 6 feet, there is     a commode in the front along the

641

wall, above the commode there is a window with glass panes overlooking the chowk, on the east of the commode there is a bath-tub, on the western side of     the bathroom there is a door leading into the hall; on the southern side of the said door there is a wash-basin adjacent to the wall. After the incident the corpse of     Ahuja was found in the bath-room; the head of the deceased was towards the bed-room and his legs were towards the commode. He was lying with his head on his right hand. This is the evidence of Miss Mammie, and she     has not been cross-examined on it. It is also not contradicted by any    witness. The top glass pane of the window in the bath-room was broken. Pieces of glass were found on the floor of the bath-room between the commode and     the wash- basin. Between the bath-tub and the commode a pair of spectacles was lying on the floor and there were also two spent bullets. One chappal was found between the commode and the wash basin, and the other was found in the bedroom. A towel was found wrapped around    the waist of the deceased. The floor of the bath room was blood stained. There was white handkerchief and bath towel, which was blood stained lying on the floor. The western wall was found to be blood stained and drops of blood were trickling     down.    The handle of     the door leading to the bath-room from the bed-room and a portion of the door adjacent to the handle were bloodstained from the inner side. The blood on the wall was little a over three feet from the floor. On the    floor of the bed-room    there was an empty brown envelope with the words "Lt. Commander K. M. Nanavati" written on it. There was no mark showing that the bullets had hit any    surface. (See the evidence of Rashmikant, P.W. 16)

On the dead-body the following injuries were found :

(1) A     punctured wound 1/4"    X 1/4"     X chest cavity deep just below and inside the inner

642

end of the right collar bone with an abrasion collar on the right side of the wound. (2) A     lacerated punctured wound in the web between the ring finger and    the little finger of     the left hand 1/4" X 1/4" communicating with     a punctured wound 1/4     X 1/4" on the palmer aspect of the left hand at knuckle level between the left little and the ring finger. Both the wounds were communicating.

(3) A     lacerated ellipsoid wound oblique in the left parietal region with dimensions 1 1/3" X 1/4" X skull deep.

(4)    A lacerated     abrasion with carbonaceous tatooing 1/4" X 1/6" at the distal end     of the     proximal interphalangeal joint of the left index finger dorsal aspect. That means     at the     first joint of the crease of the index finger on its dorsal aspect, i.e., back aspect.

(5)    A lacerated     abrasion with carbonaceous tatooing 1/4" X 1/6" at the joint level of the left middle finger dorsal aspect.

(6) Vertical    abrasion inside     the right shoulder blade 3"     X 1"    just outside the spine.

On internal examination the following wounds were found by Dr. Jhala, who performed the autopsy on the dead-body. Under the first injury there was: "A small ellipsoid wound oblique in the front of the piece of     the breast bone (Sternum) upper portion right side centre with dimensions 1/4" x 1/3" and at the back of the bone there was a lacerated wound accompanied by irregular chip     fracture corresponding to external injury    No. 1,    i, e., the punctured wound chest cavity deep. Same wound continued in the contusion in area 3" x 1 1/4" in the right lung upper lobe front border middle portion front and back. Extensive clots were seen

643

in the middle compartment     upper    and front part surrounding the laceration impregnated pieces of fractured bone. There was extensive echymosis and contusion around the root    of the right     lung    in the diameter of    2" involving also the inner surface of the upper lobe. There were extensive clots     of blood around the     aorta. The left lung was markedly pale and showed a     through and through wound in the lower lobe     beginning at    the inner surface just above the root opening out in the lacerated ground in the back region outer aspect at    the level between 6th and 7th ribs left side    not injuring the rib and injuring the space    between the 6th and 7th rib left side 2" outside the junction of    the spine obliquely downward     and outward. Bullet was recovered    from tissues    behind     the left shoulder blade. The wound     was lacerated    in the whole     tract     and was Surrounded    by contusion of softer tissues."

The doctor says that the bullet, after entering "the inner end, went backward, downward and then to the left" and therefore he described the ground an ellipsoid and oblique". Ho also points out that the abrasion collar was missing on the left side. Corresponding to the external    injury No. 3, the doctor found on internal examination     that the skull showed a haematoma under the scalp, i.e., on the left parietal region ; the dimension was 2" X 2". The     skull cap showed a gutter fracture of the outer table and a fracture of the inner table. The brain showed sub-arachnoid haemorrhage     over the left parieto-occipital     region     accompanying the fracture of the vault of the skull.

A description of    the revolver with which Ahuja was shot and the manner of its working would be necessary to appreciate the relevant evidence in that regard. Bhanagay, the Government 644

Criminologist,    who was examined as P.W.    4, describes the revolver     and the manner of its working. The revolver is a semi-automatic one and it is six-chambered. To load the revolver one has to release the chamber; when the chamber    is released, it comes out     on the left    side. Six cartridges can be inserted in the holes of tho chamber and then the chamber is pressed to the revolver. After     the revolver is thus loaded, for the purpose of firing one has to pull the trigger of the    revolver; when    the trigger is pulled the cartridge gets cocked and the revolver being semi- automatic the hammer strikes the percussion cap of the cartridge and the    cartridge explodes and the bullet goes off. For firing the second shot, the trigger has to     be pulled again and     the same process will have to be repeated each time it is fired. As it is not an automatic revolver, each time it is fired, the trigger has to be pulled and released. If    the trigger is pulled but not released, the second round will not come in its position of firing. Pulling of the trigger has a double action-one is the rotating of the chamber and cocking, and the    other,    releasing of the hammer. Because     of this double action, the pull must be fairly strong.     A pressure of     about    20 pounds is required for pulling the trigger. There is controversy on the question of pressure, and we shall deal with this at the appropriate place. Of the three bullets fired from     the said revolver, two bullets were found in the bath-room, and the     third was extracted from the back of the left shoulder blade. Exs. F-2 and F-2a are the bullets found in the bath-room. These two bullets are flattened and the copper jacket of one of the bullets, Ex. F-2a, has     been turn off. The third bullet is marked as EX. F-3.

With this    background let US now consider the evidence to ascertain whether    the shooting was intentional, as the prosecution avers, or only 645

accidental, as    the defence suggests.     Excepting Nanavati, the accused, and Ahuja, the deceased, no other person was present in the letter's bed-room when the shooting took place. Hence     the only person who can speak to the said incident is the accused Nanavati. The    version     of Nanavati,    as given in his evidence    may be     stated     thus:    He walked into Ahuja's bed-room,    shutting the door behind him. Ahuja was    standing in front of the dressing-table. The accused walked towards Ahuja and said, "You are a filthy swine", and asked him, "Are you going to marry Sylvia and look after the kids?" Ahuja became enraged and said    in a nasty manner, "Do I have to marry every woman that I sleep with ?" Then the deceased said, "Get the hell out of here, otherwise,    I will     have you thrown out." The accused became angry, but the packet containing the revolver     down on a cabinet which was near him and told him, "By     God I    am going to thrash you for this." The accused had his hands up to fight the deceased, but the latter made a    sudden grab towards the packet containing the revolver. The accused grappled the revolver himself and prevented the deceases from getting it. He then whipped out the revolver and told the deceased to get back. The deceased was very close to him and suddenly caught with his right hand the right hand of the accused at the wrist and tried to twist it and take the revolver off it. The accused "banged" the deceased towards the door of the bath-room,    but Ahuja would not let go of his grip and tried to kick the accused with his knee in the groin. The accused pushed Ahuja again into the bath-room, trying at the same time desperately to free     his hand from the grip of the accused by jerking it around. The deceased had a very strong grip and he did not let go the grip. During the struggle, the accused thought that two shots went off: one went first and within a few seconds another. At the first shot the deceased just kept 646

hanging     on to     the hand of    the accused, but suddenly he let go his hand and slumped down. When the deceased slumped down, the accused immediately came out of the bath-room and walked down to report to the police.

By this description the    accused     seeks    to raise the image that he and the deceased were face to face struggling for the possession of the revolver, the accused trying to keep    it and the deceased trying to snatch    it, the deceased catching hold of the wrist of     the right hand of the accused and twisting it, and the accused desperately trying to free his hand from his grip; and in     the struggle     two    shots went off accidentally-he does not know     about    the third shot-and hit the deceased and caused    his death. But in    the cross-examination    he gave negative answers to most of the relevant questions put to him to    test the truthfulness of his version. The following answers illustrate his helpful attitude in the court:

(1) I do not remember whether the deceased had the towel on him till I left the place.

(2) I     had no     idea where the shots went because we were shuffling during the struggle in the tiny bath-room.

(3) I     have no impression from where and how the shots were fired.

(4) I     do not     know anything    about the rebound of shots or how the shots went off. (5) I     do not even know whether the spectacles of the deceased fell off. (6) I     do not     know whether I heard the third shot. My impression is that I heard two shots.

(7) I do not remember the details of the struggle.

(8) I     do not     give any thought whether the shooting was an accident or not, because 647

I wished to go to the police and report to the police.

(9) I     gave no thought to this matter. I thought that something serious had happened. (10) I cannot say how close we were to each other, we might be very close and    we might be at arm's length during the struggle. (11) I cannot say how the deceased bad his grip on my wrist.

(12) I do not remember feeling any blows from the deceased by his free hand during the struggle; but be may have hit me.

He gives only a vague     outline of the alleged struggle between him and the    deceased. Broadly looked at, the version given by the accused appears to be highly improbable. Admittedly he bad entered the     bedroom of     the     deceased unceremoniously     with a fully     loaded     revolver; within half a minute he came    out of     the room leaving Ahuja dead with bullet wounds. The story of his keeping the revolver on the cabinet is very unnatural. Even     if he    had kept it there, how did Ahuja come to know that it was a revolver for admittedly it was put    in an envelope. Assuming that Ahuja had     suspected that it might be     a revolver, how could he     have caught the wrist of Nanavati who had by that time the revolver in his hand with his finger on the trigger? Even if he was able to do     so, how did Nanavati accidental pull the trigger three times and release it three times when already Ahuja was holding his wrist and when he     was jerking his hand    to release it from the grip of Ahuja ? It also appears to be rather curious that both the combatants did not use their left hands in the struggle. If, as he has said, there was a struggle between them and he pushed Ahuja into the bath-room, how was it     that the towel wrapped around the waist of Ahuja was intact ? So too, if there was a struggle, why there was no bruise on the body of the accused     ? Though Nanavati says that

648

there were some "roughings" on his wrist, he had not mentioned that fact till he gave his evidence in the     court,     nor is there     any evidence    to indicate such "roughings". It    is not     suggested that the Clothes worn by the accused were torn or even soiled. Though there was blood up to three feet on the wall of the bath-room, there was not a drop of     blood on the    clothes     of the accused. Another improbability     in the version of the accused is, while he says that in the struggle two shots went off, we find three spent bullets-two of them were found in the bathroom and the other in the body of the deceased. What is more, how could Ahuja have continued to struggle after he had received either     the chest injury or     the head injury, for both of them were serious ones. After the deceased received either the first or the third injury there was     no possibility of further struggling or pulling of the trigger    by reflex action. Dr. Jhala says that the injury on the head of the    victim was such that the victim could not have been able to keep standing and would have dropped unconscious immediately and that injury No. 1 was also so serious that he could not stand for more than one or two minutes. Even Dr. Baliga admits that the deceased would have slumped down after the infliction of injury No. 1 or injury No. 3 and that either of them individually would be sufficient to cause the victim to slump down. It is, therefore, impossible that after either of the said two injuries was     inflicted, the deceased could have still kept     on struggling     with the accused. Indeed, Nanavati says     in his evidence that at     the first shot the deceased just kept on hanging to his hand, but suddenly he let go his grip and slumped down.

The only circumstance that could be relied upon to     indicate a struggle is that one of the chappals of the deceased was found in the bed-room while the other was in the bath-room. But that is consistent with     both intentional and    accidental shooting, for in his anxiety to escape from, the line of

649

firing the deceased might have in hurry left his one chappal in the bed-room and fled     with the other to the bath-room. The    situation of the spectacles near     the commode is more    consistent with intentional shooting than with    accidental shootings, for if there had been a struggle it was more likely that the spectacles would have fallen off and     broken instead     of their being intact by the side of the dead-body. The condition of the bed-room as well as of the bath-room, as described by Rashmikant,    the police-officer who     made the inquiry, does not show any indication of struggle or fight in that place. The version of the accused, therefore,     is     brimming with improbabilities and is not such that any court can reasonably accept it.

It is said that if the accused went to the bedroom of Ahuja to shoot him     he would not have addressed him by his first names "Prem" as deposed by Deepak. But Nanavati says in his evidence that he would be the last person to address the deceased as Prem. This must have     been    an embellishment on the part of Deepak. Assuming he said it, it does not indicate     and sentiment    of affection or    goodwill towards the     deceased- admittedly he had none     towards him-but only    an involuntary and habitual expression. It is argued that     Nanavati is a good shot- Nanda, D.W. 6, a Commodore in     the Indian Navy, certifies that he is a good shot in regard to both moving and stationary targets-and therefore if he had intended to shoot    Ahuja, he would have shot him perpendiculary hitting the chest and not in a haphazard way as the injuries indicate. Assuming that accused is a good shot, this argument ignores that he     was not shooting at an inanimate target for practice but was shooting to commit murder; and it    also ignores the desperate attempts the deceased must have made to escape. The first shot might have been fired and aimed at the chest as 650

soon as     the accused entered the room, and the other two presumably when the deceased was trying to escape to or through the bathroom. Now on the question whether three shots would have gone off the revolver accidentally, there is the evidence of Bhanagay, P.W. 4,    who is     a Government Criminologist. The Deputy Commissioner of Police, Bombay, through Inspector     Rangnekar sent to him the revolver, three empty cartridge cases, three bullets and three live rounds for his inspection. He    has examined the revolver and the bullets which are marked as Exs. F-2, F-2a and F-

3. He is of the opinion that the said three empties were fired from the said revolver.    He speaks to the fact that for pulling the trigger a pressure of 28 pounds    is required and that for each shot the trigger    has to    be pulled and for another shot to be fired it must be released and pulled again. He also says that the charring around the wound could     occur with the weapon of the type we are now concerned within about 2 to 3 inches    of the     muzzle     of the weapon and the blackening around the wound described    as carbonaceous tattooing could be caused from such a revolver up to about 6 to 8 inches     from the muzzle. In the cross examination he says that the flattening of the two    damaged bullets, Exs. F-2 and F-2a, could have been caused by their hitting a flat    hard surface, and that the tearing of the copper jacket of one of the bullets could have been caused by a heavy impact, such as hitting against a hard surface; it may have    also been caused, according to him, by    a human bone    of sufficient strength provided the bullet hits the bone tangently    and passes of without obstruction. These answers,    if accepted-we     do not see any reason why we should not accept them-prove that the bullets, Exs. F-2    and F-2a, could have been damaged by their coming into contact    with some hard substance    such as     a bone     He says in the cross-examination that    one     'struggling' will not cause three automatic firings and tha 651

even if the struggle continues he would not expect three rounds to go off, but    he qualifies his statement by adding that this may happen if the person holding the revolver "co-operates so far as the reflex of his finger is concerned", to pull the trigger. He further elaborates the same idea by saying that     a certain kind of reflex co- operation is required for pulling the trigger and that this reflex pull could be either conscious or unconscious. This answer is strongly relied upon by learned counsel for     the accused in support of his contention    of accidental firing.    He argues that by unconscious reflex pull of the trigger three times by the accuses three shots could have gone off the revolver.     But the possibility    of three rounds going off by three separate reflexes of the finger of the person holding the trigger is only a    theoretical possibility, and that too only on the    assumption of a fairly long struggle. Such unconscious reflex pull of the finger by the accused three times within a space    of a few seconds during    the struggle as described by the accused is highly improbable,    if not impossible. We shall consider the evidence of this witness on the question of ricocheting of bullets when    we deal with individual injuries found on the body of the deceased.

This witness is not a doctor but has received training Forensic Ballistic Identification of Fire Arms) amongst other things in London and possesses certificates of     competency from his    tutors    in London duly endorsed by the covering letter from the Education     Department, high commissioner's office, and he is a Government Criminologist and has been doing this work for the last 22 years; he says that he     has also gained experience    by conducting experiments    by firing on mutton legs. He stood the test of cross-examination exceedingly well and there is no reason to reject his evidence. He makes the following points: (1) Three used bullets, Ers. F-2, F-2a and F-3, were shot from the revolver Ex.    B. (2) The revolver can be fired only by

652

Pulling the trigger; and for shooting     thrice, a person Shooting     will have to give a deep pull to the trigger thrice and     release it thrice. (3) A pressure of 28 pounds    is required to     pull the trigger. (4) one "struggling" will not cause three automatic firings. (5) If the struggle continues and if    the person who pulls     the trigger co- operates by pulling the trigger three times, three shots may go off. (6) The bullet may be damaged by hitting a hard surface     or a bone. As we have pointed out the fifth point is only a theoretical possibility based upon two hypothesis, namely, (i) the struggle continues for a considerable time, and (ii) the    person    holding     the trigger Go- operates by pulling it     thrice by reflex action. This evidence,    therefore, establishes     that the bullets went off the    revolver brought by the accused-indeed this is not disputed and that in the course of the struggle of     a few    seconds as described by the accused, it is not possible that the trigger could have     been accidentally pulled three times in quick succession so as to discharge three bullets.

As regards     the pressure required to pull the trigger of Ex. B, Trilok singh who is the Matter Armorer in the Army, deposing     as D.W. 11, does not accept the figure given by the Bhanagay and he would put it at 11     to 14 pounds. we does not know the science of ballistics and he is only a mechanic who     repairs the arms. He has not examined the revolver in question. He admits that a double-action revolver requires more pressure on the trigger than single-action     one. While major Burrard in his book on Identification of Fires and Forensic Ballistics says that    the normal trigger pull in double-action revolvers is     about    20 pounds, this witness reduces    it to    11 to    14 pounds; while Major Brrard says in his book that in all    competitions no     test other than a dead weight is accepted, this witness does     not agree with him. His opinion is based on the experiments performed

653

with spring balance. We would prefer to accept the opinion of Bhanagay to that of this witness. But, on the    basis of the opinion of Major Burrard, we shall assume for the purpose of this case that about 20 pounds of pressure would be required`to pull the trigger of the revolver Ex. B. Before considering the injuries in detail, it may be    convenient to ascertain from the relevant text-books some     of the     indications that will be found in the case of injuries caused by shooting. The following passage     from authoritative text books may be consulted:

Snyder's Homicide Investigation, P. 117: "Beyond the distance of about 18 inches or 24 at the most evidence of smudging and tattooing are seldom present."

Merkeley on Investigation of Death, P. 82: "At a distance of approximately over 18" the powder grains are no longer carried forward and therefore the only effect produced on the skin surface is that of the bullet."

Legal Medicine     Pathology and Toxicology    by Gonzales, 2nd Fdn., 1956:

"The powder grains may travel 18 to 24 inches or    more depending    on the    length    of barrel, calibre and type    of weapon and the type of ammunition."

Smith and Glaister, 1939 Edn., P. 17: "In general with all types of smokeless powder some traces of blackening are to be been but     it is     not always possible    to recognize unburnt    grains of powder even at ranges of one and a half feet."

Glaister in his book on Medical Jurisprudence and Toxicology, 1957 Edn.J makes a statement that at 8 range of about 12 inches and over as a rule there will not be marks of carbonaceous tattooing or 654

powder marks. But the    same author in an earlier book from which we have already quoted puts it at 18 inches. In the book "Recent Advances    in Forensic Medicine" 2nd Edn., p. 11, it is stated: "At range beyond 2 to 3 feet little or no trace of the powder can be observed." Dr. Taylor's book, Vol. 1, 11th edn., p. 373, contains the following statement:

"In revolver and automatic pistol wounds nothing but the grace ring is likely to be found beyond about two feet."

Bhanagay, P.W.    4, says     that charring    around the wound could occur with the weapon of the type Ex.B within about 2 to 3 inches from the muzzle of the weapon, and the blackening round about the wound could be caused from such a weapon up to about 6 to 8 inches from the muzzle. Dr. Jhala, P.W. 18, ways that carbonaceous tattooing would not appear if the body was beyond 18 inches from the mouth of the muzzle.

Dr. Baliga, D.W. 2, accepts the correctness of the     statement formed in     Glaister's book, namely, when the range     reaches about     6 inches there is usually an absence of burning although there will probably be     some evidence of bruising and of    powder mark, at a range of about 12 inches and over the skin around the wound does not as a rule show evidence of powder marks." In the cross- examinations witness says that he does not see any conflict in the authorities cited, and tries to reconcile the various authorities by stating that all the     authorities show that there would not be powder marks beyond the range of 12 to 18 inches. He also     ways that in the matter of    tattooing, there is no difference     between that    caused    by smokeless powder used in the cartridge    in question, and black powder used in other bullets, though in the case of the former there may    be greater difficulty to find

655

out whether tho marks    are present are not in a, wound.

Having regard to    the aforesaid    impressive array of authorities on Medical Jurisprudence, we hold, agreeing    with Dr. Jhala, that carbonaceous tattooing would     not be     found beyond range of 18 inches from the mouth of the muzzle of the weapon. We also     hold that charring around the wound would occur when it is caused by a revoler     like Ex. within about 2 or 3 inches from the muzzle of the revolver.

The presence and     nature     of the abrasion collar around the injury indicates the direction and also the velocity    of the     bullet. Abrasion collar is formed by the gyration of the bullet caused by the rifling    of the barrel. If a bullet hits the body perpendicularly, the wound would be circular and the abrasion collar would be all around. But if the hit is not perpendicular, the abrasion collar     will not be around the entire wound(See the    evidence of Dr. Jhala and Dr. Baliga).

As regards     the injuries found on     the dead body, two doctors were examined, Dr. Jhala, P. W. 18, on the side of the prosecution, and Dr. Baliga, D. W. 2, on the side of the defence. Dr. Jhala is the Polio Surgeon, Bombay, for the last three years. Prior to that he was a Police Surgeon in Ahmedabad for six years. Ee is M.     R. C.    P. (Edin.), D.T. M. and H. (Lond.). He conducted the postmortem on the dead body of Ahuja and examined both external and internal injuries on the body. He is therefore, competent to speak with authority on the    wounds found on the dead-body not only by his qualifications and     experience but also    by reason of having performed the autopsy on the dead-body. Dr.    Baliga is an F. R. C. S. (England) and has been practising as a medical surgeon since 1933. His qualifications and antecedents show that he is not only     on experience surgeon but abo has been taking

656

interest in extra-surgical activities, social, political and educational. He says that he has studied medical literature    regarding bullet injuries and that he is familiar with medico-legal aspect of wound including bullet wounds. He was a Causality J. Medical officer in the    K. E.    M. Hospital in 1928. The had seen bullet injuries both as     Causality Medical officer and later on as a surgeon. In the cross-examination he says: "I have never fired a revolver, nor any other fire-arm. I have not given evidence in a single case of    bullet injuries     prior    to this occasion though I have treated and I am familiar with bullet injuries. The last that I gave evidence in Medico-legal case in     a murder case was in 1949 or 1950     or there about. Prior to    that I     must have given evidence in a medical-legal case     in about 1939. I cannot off hand tell how many cases of bullet    injuries I have treated till now, must have    been over a dozen. I     have not treated any bullet injuries case for the last 7 or 8 years. It was over 8 or 9 years ago that I have treated bullet injuries on the chest and    the head. Out    of all     these 12 bullet injuries cases which I have treated up to now there might be 4    or 5 which were bullet injuries on the head. Out of these 4 or 5 cases probably there were three cases in which there were injuries     both on the chest as well as on the head....... I must have performed about half a dozen postmortems in all my career."

He further says that he was consulted about a week before he gave evidence by Mr. Khandalawala and Mr. Rajani Patel on behalf of the accused and was shown the post-mortem report of the injuries; that he did    not have before him either the bullets or the skull; that he gave his opinion in about 20 minutes on the basis of the post-mortem