Grave And Sudden Provocation

I would like to express my heartfelt gratitude and thanks to the various authors whose books I have referred to while doing my project and also the various sources of information from where I have collected the data for my assignment. I am duly indebted to them. I am also indebted to the All India Reports of the Supreme Court and the judgments of various other Courts. Last but not the least; I would also like to thank my teacher, Dr. Rose Varghese, for providing us the opportunity to do such projects and also for helping us with her valuable suggestions.

INTRODUCTION:

The word ‘homicide’ has been derived from Latin terms homi (man) and cido (cut). Literally, the word ‘homicide’ means the killing of a human being by another human being. ‘Homicide’ is the generic term for the causing or accelerating the death of a human being by another human being.

However, every homicide is not unlawful or criminal. Death caused by a an innocent agent, like a child under the age of discretion or a person of unsound mind, or death of the assailant caused in the exercise of the right of private defence, for example, is not unlawful. In the former, the doer is ‘excused’, while in the latter the defendant’s act is ‘justified’. Homicides, therefore, are of two types:

1. Lawful homicides, and
2. Unlawful homicides.

Lawful homicides are those which are covered under the ‘Chapter IV: Of General Exceptions’ of the Indian Penal Code and which, therefore, are not punishable. The homicides that are made punishable under the Indian Penal Code obviously carry the label of unlawful homicides. Lawful homicides, relying on the nature of ‘general exception’ that envelopes the homicide, can further be classified into: (i) Excusable homicides, and

(ii) Justifiable homicides.

Thus, there are three forms of known to the Indian Penal Code. They are: (i) Excusable homicides,

(ii) Justifiable homicides
(iii) Unlawful or criminal homicides (i.e., homicides that are neither excused nor justified). Chapter XVI of the Indian Penal Code deals with “Offences Affecting The Human Body”. It incorporates in it four homicides offences. They are:

1. Culpable homicide not amounting to murder,
2. Culpable homicide amounting to murder,
3. Death by a rash or negligent act, and
4. Dowry death.

It also deals with suicide and thugs.

OFFENCES AFFECTING THE HUMAN BODY:-

The offences affecting the human body, are contained in Chapter 16 of the Indian Penal Code, 1860, commencing from Section 299 to Section 377.

Offences Affecting Life (Section 299 – Section 311):

1. Culpable Homicide (Section 299 & Section 304)
2. Murder (Section 300)

Exceptions to Murder:

• (a) Grave and Sudden Provocation (Exception 1 to Section 300)
• (b) Exceeding the Right of Private Defence (Exception 2 to Section 300)
• (c) Act of Public Servant (Exception 3 to Section 300)
• (d) Sudden Fight (Exception 4 to Section 300)
• (e) Death by Consent (Exception 5 to Section 300)

Section 299 of Indian Penal Code states that:

299. Culpable homicide –– whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Section 300 of the Indian Penal Code states that:

300. Murder –– Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or ––

1. Secondly –– If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or ––
2. Thirdly –– If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or ––
3. Fourthly –– If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception 1 to Section 300 of the Indian Penal Code states that:

Exception 1 –– When culpable homicide is not murder –– Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:

1. First –That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
2. Secondly – That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
3. Thirdly – That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation – Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

• Exception 2 to Section 300 of the Indian Penal Code states that:
• Exception 2 –– Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
• Exception 3 to Section 300 of the Indian Penal Code states that:
• Exception 3 – Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
• Exception 4 to Section 300 of the Indian Penal Code states that:
• Exception 4 –– Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.
• Explanation –– It is immaterial in such cases which party offers the provocation or commits the first assault.
• Exception 5 to Section 300 of the Indian Penal Code states that:
• Exception 5 –– Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

WHEN CULPABLE HOMICIDE IS NOT MURDER:

Clauses 1 to 4 of Section 300 of the Indian Penal Code provide the essential ingredients wherein culpable homicide amounts to murder. The section also provides five exceptional situations, the existence of which will remove a case from the purview of Section 300. In other words, even if a case falls within any of the four clauses of Section 300, it also falls within any of the five exceptions provided thereunder, then it will cease to be murder. It will merely be culpable homicide not amounting to murder. The exceptions provided for under Section 300 are: (a) grave and sudden provocation; (b) private defence; (c) acts of public servants; (d) sudden fight, and (e) consent.

However, it becomes necessary to take note of two significant propositions about the nature and operation of these exceptions to Section 300. First, these are the ‘special exceptions’ to murder only. In this sense, they are distinct from ‘General Exceptions’ enumerated in Chapter IV (Section 76 to Section 106) of the Indian Penal Code. The latter, unlike the former, by virtue of Section 6 read with Section 40 of the Indian Penal Code, are applicable to offences created under the Indian Penal Code as well as under other special or local laws in force in India. Secondly, the ‘special exceptions’ merely cover ‘murder’ to ‘culpable homicide’ not amounting to murder’ and thereby reduce the criminal liability of its perpetrator. These exceptions to Section 300, unlike the ‘general exceptions’, do not exonerate the wrong doer. They only operate as mitigation factors.

Now I will focus in detail on my Topic, Exception 1 to Section 300, i.e., Grave and Sudden Provocation; with reference to the case of K.M. Nanavati versus State of Maharashtra.

GRAVE AND SUDDEN PROVOCATION (Exception 1 to Section 300 of Indian Penal Code):

Culpable homicide will not be murder, if, the offender, on account of grave and sudden provocation, is deprived of his power of self-control and causes the death of a person. The person, whose is caused, may be the person who gave the provocation or any other person by mistake or accident.

The exception is itself subject to three exceptions:

(a) The provocation should not have been sought for voluntarily by the offender, as an excuse for killing or doing any harm to any person. (b) The provocation is not as a result of an act done in obedience of law or by the act of a public servant in the lawful exercise of his powers. (c) The provocation is not a result of anything done in the exercise of this right of private defence.

In order that this exception should apply, the provocation should be both grave and sudden. If the provocation is sudden but not grave, or grave but not sudden, then the offender cannot avail of the benefit of this exception. Further, it should also be shown that the provocation was of such a nature that the offender was deprived of the power of self-control. In K.M. Nanavati versus State of Maharashtra, AIR 1962 SC 605; the question before the Supreme Court was whether the act of the accused could be said to fall within Exception 1 of Section 300 of the Indian Penal Code. The Supreme Court laid down the following postulates relating to grave and sudden provocation:

(1) 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.

(2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused, so as to bring his act within the first exception to Section 300 of the Indian Penal Code.

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

(4) The fatal blow should be clearly traced to the influence or 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.

The Explanation to Exception 1 of Section 300 states that whether the provocation was grave and sudden is a question of fact. In Hansa Singh versus State of Punjab, AIR 1977 SC 1801, (1977) Cr LJ 1448 (SC); the accused saw the deceased committing an act sodomy on his son, which enraged him and he killed the deceased. It was held that it amounted to a grave and sudden provocation. The conviction under Section 302 was set aside. He was convicted under Section 304 of the Indian Penal Code. In Dattu Genu Gaikwad versus State of Maharashtra, AIR 1974 SC 387, (1974) Cr LJ 446 (SC); the reason given by the accused for killing the deceased was the fact that he attempted to outrage the modestly of his wife a month back.

In view of the long time interval, it was held that the plea of ‘sudden and grave’ provocation was not available. In Mannam Balaswamy versus State of Andhra Pradesh, AIR 1980 SC 448; the accused had a quarrel with his father. The deceased tried to intervene and pacify. The accused then went into the house, brought out a knife and stabbed the deceased. The plea of grave and sudden provocation was rejected, holding that there was no provocation and the accused merely tried to use the quarrel as an excuse to kill the deceased. In Bhura Ram versus State of Rajasthan, (2003) 9 SCC 205; the accused, accompanied with others, entered into the hut of the deceased. Apprehending danger to his life, the deceased fired at one of the companions of the accused and thereby caused his death. The accused then attacked the deceased with an axe on his head and killed him.

During trial, he pleaded that the death of his companion caused grave and sudden provocation to him. The Supreme Court refused to accept the plea as the accused solicited the provocation to him. A killing under provocation sought by the accused cannot be covered by the exception. It may be pointed out that even in cases where the court may not accept the plea of ‘sudden and grave’ provocation, the background facts of earlier incidents, which may cause a grave provocation but are not sudden, may be considered by courts as factors that mitigate the sentence.

In Francis alias Pannan versus State of Kerela, AIR 1974 SC 2282, (1974) Cr LJ 1310 (SC); the deceased had on two previous occasions attacked the accused’s brother and brother-in-law. The accused was in constant fear of menace from the deceased to the lives and safety of the near and dear of the accused. So, even though the earlier incidents of attack on family members did not constitute ‘sudden and grave’ provocation, his sentence was reduced to life imprisonment.

K.M. Nanavati versus State of Maharashtra:––

• Equivalent Citations: 1962 AIR SC 605, 1962 SCR Supl. (1) 567 Petitioner: Kawas Manekshaw Nanavati
• Respondent: State of Maharashtra
• Date of Judgment: 24th November, 1961
• Court Bench:
• Headed by: K Subbarao
• Members: S.K. Das and Raghubar Dayal.

People Involved in the Case:

• (a) Kawas Manekshaw Nanavati
• (b) Slyvia Nanavati
• (c) Prem Bhagwandas Ahuja

Advocates:

1. Appellants – Mr. G.S. Pathak
2. Respondents – Mr. M.C. Setalvad (Attorney General)

Laws Applied:––

1. Code of Criminal Procedure (Act 5 of 1898):-

a) Section 307: Procedure where Sessions Judge disagrees with verdict ––

It states that: (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 Sessions which [any accused person] has been tried, and is clearly of opinion that it is necessary for the ends of justice to submit the case [in respect of such accused person] to the High Court, he shall submit the case accordingly, recording the grounds of his opinion, and, when the verdict is one of acquittal, stating the offence which he considers to have been committed, [and in such case, if the accused is further charged under ,the provisions of Section 310, shall proceed to try him on such charge as if
such verdict had been one of conviction].

(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 [such accused] has been tried, but he may either remand [such 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 [such accused] of any offence of which the jury could have convicted him upon the charge framed and placed before it; and, if it convicts him, may pass such sentence as might have been passed by the Court of Session.

b) Section 410: Appeal from sentence of Court of Session ––

It states that: Any person convicted on a trial held by a Sessions Judge, or an Additional Sessions Judge, may appeal to the High Court.

c) Section 417: Appeal on behalf of Government in case of acquittal ––

It states that: The [Provincial Government] may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.

d) Section 418 (1): Appeal on what matters admissible ––

It states that: An appeal may lie on a matter of fact as well as a matter of law, except where the trial was by jury, in which case the appeal shall lie on a matter of law only.

e) Section 423(2): Powers of Appellate Court in disposing of appeal ––

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

f) Section 297: Charge to jury ––

It states that: In cases tried by jury, when the case for the defence and the prosecutor’s reply (if any) are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided.

g) Section 155 (1): Information in non-cognizable cases. Investigation into non-cognizable cases ––

It states that: When information is given to an officer in charge of a police-station of the commission within the limits of such station of a non- cognizable offence, he shall enter in a book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate.

h) Section 162: Statements to police not to be signed; use of such statements in evidence ––

It states that: No statement made by any person to a police-officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a policy-diary or otherwise, or any such part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872, When any part of such
statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. Provided, further that, if the Court is of opinion that any part of any such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, it shall record such opinion (but not the reasons therefor) and shall exclude such part from the copy of the statement furnished to the accused.

2. Indian Penal Code, 1860 (Act 45 of 1860):-
a) Section 300 and the Exceptions to Murder have been written above on Pages 6 to 8.

b) Section 302: Punishment for murder –– Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.

3. Indian Evidence Act, 1872 (Act 1 of 1872):-

a) Section 105: Burden of proving that case of accused comes within exceptions –– 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, (45 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.

Final Judgment: Kawas Manekshaw Nanavati was sentenced to life imprisonment for culpable homicide amounting to murder.

Summary/Facts of the Case:

K.M. Nanavati versus State of Maharashtra was a landmark criminal case in the history of India. It also marked the abolition of jury trials in our
country. It was a very famous case and this case is referred to by every inspiring law students and lawyers during the course of their study and career. It is also a very interesting case for the general public. During the proceedings of this case, all the citizens of our country kept track of it and also organized many campaigns both in favour and against.

Accused (appellant) Kawas Manekshaw Nanavati was a Commander in Indian Naval Ship “Mysore”. He married Sylvia in 1949 in the registry office at Portsmouth, England. They had three children by the marriage, a boy aged 9½ years, a girl aged 5 ½ years and another boy aged 3 years. Since marriage, they were living at different places as to regard to exigencies of services of Nanavati. Finally, they shifted to Bombay. Prem Ahuja had a business in automobiles in Bombay and was residing, along with his sister, in a building called “jivan Jyot” in Setalvad Road. In the year 1956, Agniks, who were common friends of Nanavatis and Ahujas, introduced Ahuja and his sister to Nanavati’s.

Ahuja was unmarried and was about 34 years of age at the time of his death. Nanavati, as a Naval Officer, was frequently going away from Bombay in his ship, leaving his wife and children in Bombay. Gradually, friendship developed between Ahuja and Sylvia, which culminated in illicit intimacy between them. On April 27, 1959, Sylvia confessed to Nanavati of her illicit intimacy with Ahuja. Enraged at the conduct of Ahuja, Nanavati went to his ship, took from the stores of the ship a semi-automatic revolver and six cartridges on a false pretext, loaded the same, went to the flat of Ahuja and entered his bedroom and shot him dead. Thereafter, the accused Nanavati, surrendered himself to the Police. He was put under arrest and in due course he was committed to the Sessions for facing a charge under Section 302 of the Indian Penal Code.

Appellant Nanavati, was put up on trial under Section 302 and Section 304, Part I of the Indian Penal Code for the alleged murder of his wife’s paramour. The prosecution case in substance was that on the day of occurrence his wife Sylvia confessed to him of her illicit intimacy with Ahuja and the accused went to his ship, took from its stores a revolver and cartridges on a false pretext, loaded the same, went to Ahuja’s flat, entered his bed room and shot him dead. The defence, inter alia, was that as his wife did not tell him if Ahuja would marry her and take charge of their children, he decided to go and settle the matter with him. He drove his wife and children to a cinema where he dropped them promising to pick them up when the show ended at 6 p.m., drove to the ship and took the revolver and the cartridges on a false pretext intending to shoot himself.

Then he drove his car to Ahuja’s office and not finding him there, drove to his flat. After an altercation, a struggle ensued between the two and in course of that struggle two shots went off accidentally and hit Ahuja. Evidence, oral and documentary, was adduced in the case including three letters written by Sylvia to Ahuja. Evidence was also given of an extra-judicial confession made by the accused to the watchman of Ahuja’s residence who deposed that the accused when leaving the place of occurrence told him that he had a quarrel with Ahuja as the latter had ‘connections’ with his wife and therefore he killed him. The accused then went to the Police Station and surrendered himself.

The jury of the Sessions Court returned a verdict of ‘not guilty’ of charges to Nanavati by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court of Bombay under Section 307 of the Code of Criminal Procedure. The two Judges of the Division Bench who heard the matter agreed in holding that the appellant was guilty under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. There was no sudden and grave provocation to Nanavati which led to Ahuja’s murder; which is an exception in the Indian Penal Code, hence Nanavati pleaded guilty. He also appealed in Supreme Court of India where his appeal was dismissed.

Trials of the Case:

The case underwent trials, under three Courts, viz., Sessions Court, High Court of Bombay and the Supreme Court.

1) K.M. Nanavati versus State of Bombay, 1961 AIR 112, 1961 SCR (1) 497; 2) K.M. Nanavati versus State of Maharashtra, 1962 AIR SC 605, 1962 SCR Supl. (1) 567.

Proceedings of the Trials:-

The trial first took place under the Sessions Judge, in the Sessions court of Greater Bombay. The petitioner (K.M. Nanavati) was Second in Command of 1. N. S. Mysore, a naval ship, who came to Bombay in the beginning of March, 1959. Soon thereafter he was arrested on a charge of murder under Section 302 of the Indian Penal Code and was placed, and continued to remain, in naval custody all along during his trial. In due course he was placed on trial by a jury before the Sessions Judge, Greater Bombay, in which the jury returned a verdict of not guilty by a majority; but the Sessions judge disagreeing with the verdict of the jury made a reference to the High Court which convicted the petitioner under Section 302 of the Indian Penal Code and sentenced him to imprisonment for life. On the same day when the High Court pronounced its judgment the Governor of Bombay passed an order under Article 161 of the Constitution of India suspending the sentence passed by the High Court of Bombay on the Petitioner until the appeal intended to be filed by him in the Supreme Court against his conviction and sentence was disposed of and subject meanwhile to the condition that he shall be detained in the Naval Jail custody.

A warrant for the arrest of the petitioner which was issued in pursuance of the judgment of the High Court was returned unserved with the report that it could not be served in view of the order of the Governor suspending the sentence passed upon the petitioner. In course of the hearing of an application for leave to appeal to the Supreme Court filed by the petitioner in the High Court the matter of the unexecuted warrant was placed before it and a Special Bench of the High Court after examining the validity of the action taken by the Governor came to the conclusion that the order passed by the Governor was not invalid, that the order for detention of the petitioner in naval custody was not unconstitutional and that the sentence passed on the petitioner having been suspended, the provisions of 0. XXI, r. 5, of the Supreme Court Rules did not apply and it was not necessary for the petitioner to surrender to his sentence.

Thereafter the petitioner filed an application for special leave in the Supreme Court and also another application praying for exemption from compliance with the aforesaid rule and for the hearing of his application for special leave without surrendering to his sentence. His plea at first was that as he was not a free man it was not possible for him to comply with the requirements of 0. XXI, r. 5, of the Supreme Court Rules; but he subsequently amended it to the effect that the aforesaid Rule did not apply to his case in view of the Governor’s order. On a reference of this matter by a Division Bench of this Court to the Constitution-Bench for hearing, held, that the Governor had no power to grant the suspension of sentence for the period during which the matter was sub-judice in this Court.

The Governor’s order suspending the sentence could only operate until the matter became sub-judice in this Court on the filing of the petition for special leave to appeal whereupon this Court being in seisin of the matter would consider whether 0. XXI, r. 5 should be applied or the petitioner should be exempted from the operation thereof as prayed for. It would then be for this Court to pass such orders as it thought fit as to whether bail should be granted to the petitioner or he should surrender to his sentence or to pass such other order as the court deemed fit in the circumstances of the case. On the principle of harmonious construction and to avoid a possible conflict between the powers given under Article 161 to the Governor and under Article 142 to the Supreme Court, both of which are absolute and unfettered in their respective fields of operation, it must be held that. Article 161 does not deal with the suspension of sentence during the time that Article 142 is in operation and the matter is sub-judice in the Supreme Court. Justice K. Subbarao after going through the conflicts arising out of Article 161 and 142 finally granted exemption prayed for to the petitioner and would proceed to hear the special leave on merits. 1 Retrial Under The High Court of Bombay––

Hon’ble Mr. Justice Ratilal Bhaichand Mehta (the Sessions Judge) considered the acquittal of the jury as perverse and referred the case to the High Court of Bombay. Appellant Nanavati, a Naval Officer, was put up on trial under Section 302 and 304 Part I of the Indian Penal Code for the alleged murder of his wife’s paramour. The prosecution case in substance was that on the day of occurrence his wife Sylvia confessed to him of her illicit intimacy with Ahuja and the accused went to his ship, took from its stores a revolver and cartridges on a false pretext, loaded the same, went to Ahuja’s flat, entered his bed room and shot him dead.

The Defence’s Version:

The defence version, as disclosed in the statement made by the accused before the Sessions Court under Section 342 of the Code of Criminal Procedure and his deposition in the said Court, may be briefly stated: The accused was away with his ship from 6th April, 1959 to 18th April, 1959. Immediately after returning to Bombay, he and his wife went to Ahmednagar for about three days in the company of his younger brother and his wife. Thereafter, they returned to Bombay and after a few days his brother and his wife left them. After they had left, the accused noticed that his wife was behaving strangely and was not responsive or affectionate to him. When questioned, she used to evade the issue. At noon on April 27, 1959, when they were sitting in the sitting-room for the lunch to be served, the accused put his arm round his wife affectionately, when she seemed to go tense and unresponsive. After lunch, when he questioned her about her fidelity, she shook her head to indicate that she was unfaithful to him.

He guessed that her paramour was Ahuja. As she did not even indicate clearly whether Ahuja would marry her and look after the children, he decided to settle the matter with him. Sylvia pleaded with him not to go to Ahuja’s house as he might shoot him. Thereafter, he drove his wife, two of his children and a neighbour’s child in his car to a cinema, dropped them there and promised to come and pick them up at 6 p.m. when the show ended. He then drove to his ship, as he wanted to get medicine for his sick dog; he represented to the authorities in the ship that he wanted to draw a revolver and six rounds from the stores of the ship as he was going to drive alone to Ahmednagar by night, though the real purpose was to shoot himself. On receiving the revolver and six cartridges he put it inside a brown envelope. Then he drove his car to Ahuja’s office, and not finding him there, he drove to Ahuja’s flat, rang the doorbell, and when it was opened by a servant, walked to Ahuja’s bedroom, went into the bed-room and shut the door behind him.

He also carried with him the envelope containing the revolver. The accused saw the deceased inside the bed-room, called him a filthy swine and asked him whether he would marry Sylvia and look after the children. The deceased retorted, “Am I to marry every woman I sleep with?” The accused became enraged, put the envelope containing the revolver on a cabinet nearby, and threatened to thrash the deceased. The deceased made a sudden move to grasp at the envelope, when the accused whipped out his revolver and told him to get back. A struggle ensued between the two and during that the struggle two shots went off accidentally and hit Ahuja resulting in his death. After the shooting the accused went back to his car and drove it to the police station where he surrendered himself. This is broadly, omitting the details, the case of the defence.

The Prosecution’s Version:

The case of the prosecution may be stated thus: The accused, at the time of the alleged murder, was second in command of the Indian Naval Ship “Mysore”. He married Sylvia in 1949 in the registry office at Portsmouth, England. They have three children by the marriage, a boy aged 9½ years, a girl aged 5½ years and another boy aged 3 years. Since the time of marriage, the couple were living at different places having regard to the exigencies of service of Nanavati. Finally, they shifted to Bombay. In the same city the deceased Ahuja was doing business in automobiles and was residing, along with his sister, in a building called “Shrevas” till 1957 and thereafter in another building called “Jivan Jyot” on Setalvad Road.

In the year 1956, Agniks, who were common friends of Nanavatis and Ahujas, introduced Ahuja and his sister to Nanavatis. Ahuja was unmarried and was about 34 years of age at the time of his death. Nanavati, as a Naval Officer, was frequently going away from Bombay in his ship, leaving his wife and children in Bombay. Gradually, friendship developed between Ahuja and Sylvia, which culminated in illicit intimacy between them. On April 27, 1959, Sylvia confessed to Nanavati of her illicit intimacy with Ahuja. Enraged at the conduct of Ahuja, Nanavati went to his ship, took from the stores of the ship a semi-automatic revolver and six cartridges on a false pretext, loaded the same, went to the flat of Ahuja, entered his bed-room and shot him dead. Thereafter, the accused surrendered himself to the police. He was put under arrest and in due course he was committed to the sessions for facing a charge under Section 302 of the Indian Penal Code.

The prosecution’s version of the story and their counter-points against the defence’s version was based on replies by witnesses and backed by evidence. The towel that Ahuja was wearing was intact on his body and had neither loosened nor fallen off. In the case of a scuffle, it is highly improbable that the towel would have stayed intact. After Sylvia’s confession, a calm and collected Nanavati dropped his family to the theatre, drove to his naval base and according to the Navy log, had acquired a gun and rounds, under a false pretext. This indicated that the provocation was neither grave nor sudden and that Nanavati had the murder planned. Ahuja’s servant Anjani testified that three shots were fired in quick succession and the entire incident took under a minute to occur, thus ruling out a scuffle. Nanavati walked out of Ahuja’s residence, without explaining to his sister Mamie that it was an accident. He then unloaded the gun, went to the Provost Marshall and again went to the police to confess his crime, thus ruling out that he was dazed. The deputy commissioner of police testified that Nanavati confessed that he had shot dead Ahuja and even corrected the misspelling of his name in the police record.

The High Court of Bombay agreed with the prosecution’s argument that the murder was premeditated and sentenced Nanavati to undergo rigorous imprisonment for life for culpable homicide amounting to murder.

Appeal in the Supreme Court:
K.M. Nanvati had appealed in The Supreme Court of India against the judgment of the High Court of Bombay. His appeal was dismissed by the Supreme Court. On 24th November, 1961, the Supreme Court of India upheld the conviction. 2

Advocate’s Plea in the Supreme Court

Mr. G.S. Pathak, learned counsel for the accused, raised before the Supreme Court the following points:

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

(2) Under Section 307, clause 3 of the said Code, the High Court had no power to set aside the verdict of a jury on the ground that there were misdirection’s in the charge made by the Sessions Judge.

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

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

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

Judgment of the Supreme Court:

The Supreme Court observed that from the consideration of the entire evidence the following facts emerge: The deceased seduced the wife of the accused. She had confessed to him of her illicit intimacy with the deceased. It was natural that the accused was enraged at the conduct of the deceased and had, therefore, sufficient motive to do away with the deceased. He deliberately secured the revolver on a false pretext from the ship, drove to the flat of Ahuja, entered his bed-room unceremoniously with the loaded revolver in hand and in about a few seconds thereafter came out with the revolver in his hand.

The injuries found on the body of the deceased were consistent with the intentional shooting and the main injuries were wholly inconsistent with accidental shooting when the victim and the assailant were in close grips. The other circumstances brought out in the evidence also established that there could not have been any fight or struggle between the accused and the deceased.

The Court therefore, held agreeing with the High Court, that the prosecution has proved beyond any reasonable doubt that the accused has intentionally shot the deceased and killed him. The Court opined that it was not necessary to consider the question whether the accused has discharged the burden laid on him under Section 80 of the Indian Penal Code, especially as learned counsel appearing for the accused in the Supreme Court and in the High Court did not rely upon the defence based upon that Section.

The Court agreed with the High Court that, on the evidence adduced in this case, no reasonable body of persons could have come to the conclusion which
the jury reached in this case. For that reason also the verdict of the jury could not stand. Even so, it was contended by Mr. Pathak that the accused shot the deceased while deprived of the power of self-control by sudden and grave provocation and, therefore, the offence would fall under Exception 1 to Section 300 of the Indian Penal Code. The said Exception reads:

Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Homicide is the killing of a human being by another. Under this exception, culpable homicide is not murder if the following conditions are complied with:

1. (1) The deceased must have given provocation to the accused.
2. (2) The provocation must be grave.
3. (3) The provocation must be sudden.
4. (4) The offender, by reason of the said provocation, shall have been deprived of his power of self-control.
5. (5) He should have killed the deceased during the continuance of the deprivation of the power of self-control.
6. (6) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident.

The Supreme Court agreeing with the High Court held that the prosecution has proved beyond any reasonable doubt that the accused has intentionally shot the deceased and killed him. The question that the Court had to consider was whether a reasonable person placed in the same position as the accused was, would have reacted to the confession of adultery by his wife in the manner in which the accused did? The Court expressed that 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 the Indian Penal Code.

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. The fatal blow should be clearly traced to the influence of passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation. Bearing these principles in mind, the Court looked at the facts of this case and observed that when Sylvia confessed to her husband that she had illicit intimacy with Ahuja, the latter was not present. It could be assumed that he had momentarily lost his self-control.

But if his version was true, for the purpose of this argument it was accepted that what he said was true, it showed that he was only thinking of the future of his wife and children and also of asking for an explanation from Ahuja for his conduct. This attitude of the accused clearly indicates that he had not only regained his self-control, but on the other hand, was planning for the future. Then he drove his wife and children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there and drove his car to the office of Ahuja and then to his flat, went straight to the bedroom of Ahuja and shot him dead. Between 1:30 PM, when he left his house, and 4:20 PM, when the murder took place, three hours had elapsed, and therefore there was sufficient time for him to regain his self0control, even if he had not regained it earlier. On the other hand, his conduct clearly showed that the murder was a deliberate and calculated one. Even if any conversation took place between the accused and the deceased in the manner described by the accused, though the Court did not believe that, it did not affect the question, for the accused entered the bedroom of the deceased to shoot him. The mere fact that before shooting, the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivable be a provocation for the murder. The Court, therefore, held that the facts of the case did not attract the provisions of Exception 1 to Section 300 of the Indian Penal Code. In the result, the Court held that the conviction of the accused under Section 302 of the Indian Penal Code and sentence of imprisonment for life passed on him by the High Court were correct, and there was absolutely no grounds for interference and dismissed the appeal.

FINAL JUDGMENT: Kawas Manekshaw Nanavati was sentenced to life imprisonment for culpable homicide amounting to murder.

CONCLUSION:

Nanavati’s Release:

Nanavati had moved in the same circles as the Nehru-Gandhi family for many years. He had previously worked as Defence Attaché to V. K. Krishna Menon, while the latter was high commissioner to the United Kingdom, and had grown close to the Nehrus during that time. During the time of his trial and sentencing, Jawaharlal Nehru was Prime Minister of India and his sister, Vijayalakshmi Pandit, was governor of Maharashtra state.

All of these advantages may in other circumstances have availed Nanavati nothing, for a pardon might have been seen by the press and public at other times as a blatant misuse of power to help a crony of an influential political family. However, public opinion was decidedly in favour of Nanavati, seen an upright naval officer with middle class values and a strong sense of honour. While Public opinion thought the sentence was too harsh and supported a proposal, mooted by the Blitz, to grant a pardon to the cuckolded naval officer. The Blitz magazine played a significant part in raising public opinion in favour of Nanavati and keeping the issue alive for over three years until the pardon was granted. Nanavati spent 3 years in prison; it was feared that a pardon for him could elicit an angry reaction from the Sindhi community to which the Ahuja family belonged.

At around this time, the government received an application for pardon from Bhai Pratap, a Sindhi trader who had been a participant in the Indian independence movement, and had been convicted for misusing an import license. Given his freedom fighter background, and the relative smallness of his offence, the government was inclined to pardon Bhai Pratap. Finally, since Nanavati had spent over three years in prison and given the circumstances of the case, Prem’s sister Mamie Ahuja was persuaded to forgive Nanavati. She gave her assent for his pardon in writing. Vijayalakshmi Pandit, then governor of Maharashtra, pardoned Bhai Pratap and Kawas Manekshaw Nanavati on the same day. After his release, Nanavati, his wife Sylvia and their 3 children immigrated to Canada and settled in Toronto. Kawas Manekshaw Nanavati died in 2003.

Public Opinion & Publicity:

K.M. Nanavati’s incident received immense media coverage throughout the country and it still continues to do so. K.M. Nanavati’s case has inspired many a novels, books, movies, dramas, plays, etc. The incident both shocked and riveted the entire country. Such a crime of passion, as it was termed, was unusual, especially in the upper echelons of the society and that too by a highly decorated officer. People also found the unfolding relationships intriguing. For instance, Nanavati had known Ahuja for many years and Sylvia stood by her husband after Ahuja’s murder. The weekly tabloid Blitz, run by R. K. Karanjia, a Parsi himself, publicised the story, ran exclusive cover stories and openly supported Nanavati, portraying him as a wronged husband and an upright officer, betrayed by a close friend. Blitz painted Nanavati’s image, as that of a man representing the ideal middle class values as against Ahuja’s playboy image that symbolized the corruption and sleaze of the bourgeois. A copy of Blitz during the trial sold for Rs.2/- per copy, up from the normal rate of 25 Paise or 0.25 rupee. Peddlers on the street sold Ahuja Towels and toy Nanavati Revolvers.

Influential Parsis held regular rallies in Mumbai, with the largest being an event held at Cowasji Jehangir Hall, to support the Governor’s decree that suspended Nanavati’s life sentence and put him under naval custody, until his appeal was heard by the Supreme Court. At that rally, 3,500 people filled the hall and around 5000 stood outside. Nanavati also received backing from the Indian Navy and the Parsi Panchayat, while the Sindhi community backed Mamie Ahuja. Even among the jurists, Ram Jethmalani, a Sindhi, conducted the prosecution, while Karl Khandavala, a Parsi, represented Nanavati. “Achanak”, a 1973 crime drama, written and directed by Gulzar, starring Vinod Khanna, Lily Chakravarty, and Om Shivpuri, was inspired by the case and was a box-office hit. In the film, Vinod Khanna, who plays an upright army officer, receives a death sentence but its execution remains inconclusive. A Hindi book titled “Nanavati ka Mukadama” (Nanavati’s trial) is based on Nanavati’s case. Anglo-Indian novelist Indra Sinha’s “The Death of Mr. Love” are fictional accounts based on the murder.

The book, spanning four decades between the 1950s and 1990s, tells the story of Mrs. S, the second woman besides Sylvia, with whom Prem had a physical relationship. In the title, Love is the literal translation of Prem, Ahuja’s first name. The reverberations from the notorious Nanavati’s society murder in 1950s Bombay – the fatal consequence of an
affair between an Indian playboy and his married English lover – were so great that they reached the offices of Prime Minister Nehru and irrevocably changed the face of the Indian justice system. A fictionalized account of the case also appears in Salman Rushdie’s “Midnight’s Children”, where the case of Commander Sabarmati (in the chapter titled “Commander Sabarmati’s Baton”) is a fictionalized account of the Nanavati case. The Neeraj Grover case of 2008 is very similar to Nanavati’s case.

During Neeraj Grover’s case proceedings, (again against a Naval Officer); Nanavati’s case once again came into the limelight. Recently, KBC’s (Kaun Banega Crorepati) host, Amitabh Bachchan, asked an ignorant young lawyer on 13th October 2012 as to what was abolished following the case, K.M. Nanavati versus State of Maharashtra. Another reason for the wide publicity of this case was because it marked the end of jury trials in India forever. Due to biased opinions and verdicts of the jury often mislead by the public and media, jury trials were abolished in India when they pronounced Nanavati as not guilty. It is a really interesting case and I would suggest everyone to read it and it will help us too during our course of study and our career.