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What is the summary of this judgment?
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Nanavati himself admitted that he saw a servant in the room, though he did not know him by name; he also saw Miss Mammie in the room. These small discrepancies, therefore, do not really affect their credibility. In effect any substance both saw Nanavati with a fire arm in his hand though one said pistol and the other gun going away from the room without explaining to Miss Mammie his conduct and even threatening Anjani. This could only be the conduct of a person who had committed a deliberate murder and not of one who had shot the deceased by accident. If the accused had shot the diseased by accident, he would have been in a depressed and apologetic mood and would have tried to explain his conduct to Miss Mammie or would have phoned for a doctor or asked her to send for one or at any rate he would not have been in a belligerent mood and threatened Anjani with his revolver. Learned counsel for the accused argues that in the circumstances in which the accused was placed soon after the accidental shooting he could not have convinced Miss Mammie with any amount of explanation and therefore there was no point in seeking to explain his conduct to her.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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But whether Miss Mammie would have been convinced by his explanation or not, if Nanavati had shot the deceased by accident, he would certainly have told her particularly when he knew her before and when she happened to be the sister of the man shot at. Assuming that the suddenness of the accidental shooting had so benumbed his senses that he failed to explain the circumstances of the shooting to her, the same cannot be said when he met others at the gate. After the accused had come out of the flat of Ahuja, 634 he got into his car and took a turn in the compound. He was stopped near the gate by Puransingh, P.W. 12, the watchman of the building. As Anjani had told him that the accused had killed Ahuja the watchman asked him why he had killed his master.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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The accused told him that he had a quarrel with Ahuja as the latter had "connections" with his wife and therefore he killed him. The watchman told the accused that he should not go away from the place before the police arrived, but the accused told him that he was going to the police and that if he wanted he could also come with him in the car. At that time Anjani was standing in front of the car and Deepak was a few feet away. Nanavati says in his evidence that it was not true that he told Puransingh that he had killed the deceased as the latter had "connection" with his wife and that the whole idea was quite absurd. Puransingh is not shaken in his cross examination. He is an independent witness; though he is a watchman of Jivan Jyot, he was not an employee of the deceased.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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After the accused left the place, this witness, at the instance of Miss Mammie, went to Gamdevi Police Station and reported the incident to the police officer Phansalkar, who was in charge of the police station at that time, at about 5 5 P.M. and came along with the said police officer in the jeep to Jivan Jyot at about 7 P.M. he went along with the police officer to the police station where his statement was recorded by Inspector Mokashi late in the night. It is suggested that this witness had conspired with Deepak and Anjani and that he was giving false evidence. We do not see any force in this contention. His statement was regarded on the night of the incident itself. It is impossible to conceive that Miss Mammie, who must have had a shock, would have been in a position to coach him up to give a false statement. Indeed, her evidence discloses that she was drugged to sleep that night.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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Can it be said that these two illiterate 635 witnesses, Anjani and Deepak, would have persuaded him to make a false statement that night. Though both of them were present when Puransingh questioned the accused, they deposed that they were at a distance and therefore they did not hear what the accused told Puransingh. If they had all colluded together and were prepared to speak to a false case, they could have easily supported Puransingh by stating that they also heard what the accused told Puransingh. We also do not think that the two witnesses are so intelligent as to visualize the possible defence and before hand coached Puransingh to make a false statement on the very night of the incident. Nor do we find any inherent improbability in his evidence if really Nanavati had committed the murder. Having shot Ahuja he was going to surrender himself to the police; he knew that he had committed a crime; he was not a hardened criminal and must have had a moral conviction that he was justified in doing what he did.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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It was quite natural, therefore, for him to confess his guilt and justify his act to the watchman who stopped him and asked him to wait there till the police came. In the mood in which Nanavati was soon after the shooting, artificial standards of status or position would not have weighed in his mind if he was going to confess and surrender to the police. We have gone through the evidence of Puransingh and we do not see any justification to reject his evidence. Leaving Jivan Jyot the accused drove his car and came to Raj Bhavan Gate. There he met a police constable and asked him for the location of the nearest police station. The direction given by the police constable were not clear and, therefore, the accused requested him to go along with him to the police station, but the constable told him that as he was on duty, he could not follow him.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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This 636 is a small incident in itself, but it only shows that the accused was anxious to surrender himself to the police. This would not have been the conduct of the accused, if he had shot another by accident, for in that event he would have approached a lawyer or a friend for advice before reporting the incident to the police. As the police constable was not able to give him clear directions in regard to the location of the nearest police station, the accused went to the house of Commander Samuel, the Naval Provost Marshal. What happened between the accused the Samuel is stated by Samuel in his evidence as P.W. 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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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. "
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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 ?
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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 section 342 of the Code of Criminal Procedure supports Samuel 's version.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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(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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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".
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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. F 2 and F 2a are the bullets found in the bath room.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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These two bullets are flattened and the copper jacket of one of the bullets, exhibit F 2a, has been turn off. The third bullet is marked as EX. 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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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(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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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(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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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(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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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".
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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 exhibit 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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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(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 exhibit 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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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 exhibit 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. "
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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. "
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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Bhanagay, P.W. 4, says that charring around the wound could occur with the weapon of the type exhibit 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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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 exhibit 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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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), 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. section (England) and has been practising as a medical surgeon since 1933.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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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 657 report of the injuries that the said injuries could have been caused in n struggle between the accused and the deceased. This witness has come to the Court to support his opinion based on scanty material. We are not required in this case to decide upon the cooperative qualification or merits of these two doctors of their relative competency as surgeons, but we must have that so far as the wounds on the legal body of the deceased are concerned, Dr. Jhala, who has made the post mortem examination, is in a better position to help us to ascertain whether shooting was by accident, or by intention than Dr. Baliga, who gave his opinion on the basis of the post mortem report.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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Now we shall take injury No.1. This injury is a punctured one of dimensions 1/4" x 1/4" chest cavity deep just below and inside the inner end of the right collar bone with an abrasion collar on the right side of tho wound. The internal examination showed that the bullet, after causing the punctured wound in the chest just below the inner end of the right collar bone, struck the sternum and after striking it, it slightly deflected in it course and came behind the shoulder bone. In the course of its journey the bullet entered the chest, impacted the soft tissues of the lung tho aorta and tho left lung, and ultimately damaged the left lung and got lodged behind the seapula. Dr. Jhala describes the wound as ellipsoid and oblique and says that the abrasion collar is missing on the left side. On tho injury there is neither charring nor carbonaceous tattooing.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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The prosecution version is that this wound was caused by intentional shooting, while the defence suggestion is that it was caused when accused and deceased were struggling for the possession of the revolver. Jhala, after describing injury No. 1, says that it could not has been received by the victim during a struggle in which both the victim and the assailant were us each othor 's grip. Ho gives reasons 658 for his opinion, namely, as there was no carbonaceous tattooing on the injury, it must have been f caused by the revolver being fired from a distance ra of over 18 inches from the tip of the mouth of the muzzle. We have earlier noticed that, on the basis of the authoritative text books and the evidence, there would not be carbonaceous tattooing if the target was beyond 18 inches from the mouth of the muzzle. It is suggested to him in the cross examination that the absence of tattooing may be due to the fact that the bullet might have first hit the fingers of the left palm causing all or any of injuries Nos.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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2, 4 and 5, presumably when the deceased placed his left palm against the line of the bullet causing carbonaceous tattooing on the said fingers and thereafter hitting the chest. Dr. Jhala does not admit the possibility of the suggestion. He rules out this possibility because if the bullet first had an impact on the fingers, it would get deflected, lose its direction and would not be able to cause later injury No. 1 with abrasion collar. He further explains that an impact with a solid substance like bones of fingers will make the bullet lose its gyratory movement and thereafter it could not cause any abrasion collar to the wound. He adds, "assuming that the bullet first hit and caused the injury to the web between the little finger and the ring finger, and further assuming that it had not lost its gyrating action, it would not have caused the injury No.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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1, i e, on the chest which is accompanied by internal damage and the depth to which it had gone." Now let us see what Dr. Baliga, D. W. 2 says about injury No. 1. The opinion expressed by Dr. Jhala is put to this witness, namely, that injury No. 1 on the chest could not have been caused during the course of a struggle when the victim and the assailant were in each other 's grip, and this witness does not agree with that opinion. He further ways that it is possible that even 659 if the bullet first caused injury in the web, that is injury No.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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2, and thereafter caused injury No. 1 in the chest, there would be an abrasion collar such as seen in injury No. 1. Excepting this of this suggestion possibility, he has not controverted the reasons given by Dr. Jhala why inch an abrasion collar could not be caused if the bullet had hit the finger before hitting the chest. We will presently show in considering injuries Nos. 2, 4 and 5 that the said injuries were due to the hit by one bullet.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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If that be so, a bullet, which had caused the said three injuries and then took a turn through the little and the ring finger, could not have retained sufficient velocity to cause the abrasion collar in the chest. Nor has Dr. Baliga controverted the reasons given by Dr Jhala that even if after causing the injury in the web the bullet could cause injury No. ], it could not have caused the internal damage discovered in the post mortem examination. We have no hesitation, therefore, to accept the well reasoned view of Dr. Jhala in preference to the possibility envisaged by Dr. Baliga and hold that injury No. 1 could not have been caused when the accused and the deceased were in close trip, but only by a shot fired from a distance beyond 18 inches from the mouth of the muzzle. The third injury is a lacerated ellipsoid wound oblique in the left parietal region with dimensions and skull deep.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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Dr. Jhala in his evidence says that the skull had a gutter fracture of the outer table and a fracture of the inner table and the brain showed subarachnoid haemorrhage over the left parieto oocipital region accompanying the fracture of the vault of the skull. The injury was effect ed in a "glancing way", that is, at a tangent, and the injury went upward and to the front. He is of the opinion that the said injury to the head must have been caused by firing of a bullet from a 660 distance of over 18 inches from the mouth of the muzzle and must have been caused with the back of the head of the victim towards the assailant. When it was suggested to him that the said wound could have been caused by a ricocheted bullet, he answered that though a ricocheted bullet coming from the same line of direction could have caused the said injury, it could not have caused the intracranial haemorrhage and also could not have cause the fracture of tho inner table of the skull. He is definite that injury No. 3 could not have been inflicted from "front to back" as the slope of the gutter fracture was from the back to the front in the direction of the "grazing" of the bullet.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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He gives a further reasons on that as a rule the fracture wound be broader in the skull where the bullet has the first impact and narrower where it emerges out, whishes the case in respect of injury No 3. He also relies upon the depth of the fracture it the two points and its slope to indicate the direction in which the bullet grazed. He further says that it is common knowledge that the fracture of both the tables accompanied by haemorrhage in the skull requires great force and a ricocheted bullet cannot cause such an injury. He opinion that, though a ricocheted bullet emanating from a powerful fire arm from a close range can cause injury to a heavy bone, it cannot be caused by revolver of the type exhibit B. Another suggestion made to him is that the bullet might have hit the glass pane of the window in the bathroom first and then ricocheting causing the injury on the head. Dr. Jhala in his evidence says that if the bullet had hit glass pane,first,it would have caused a hole and fallen on the other side of the window, for ricocheting is not possible in the case of a bullet directly hitting the glass.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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But on the other hand, if the bullet first hit a hard substances and then the glass pane, it would act like a pebble and crack the glass and would 661 not go to the other side. In the present case, the bullet must have hit the skull first and then the glass pane after having lost its velocity, and fallen down like a pebble inside the bath room itself. If, as the defence suggests, the bullet had directly hit the glass pane, it would have passed through it to the other side, in which case four bullets must have been fired from the revolver exhibit B, which is nobody 's case. The evidence, of Dr. Jhala is corroborated by the evidence of the ballistics expert Bhanagay, P.W. 4, when he says that if a bullet hits a hard substance and gets flattened and damaged like the bullets Exs. F 2 and F 2a, it may not enter the body and that even if it enters the body, the penetration will be shallow and the injury caused thereby will be much less as compared to the injury caused by a direct hit of the bullet.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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Dr. Baliga, on the other hand, says that injury No. 3 could be caused both ways, that is, from "front backward" as well as from "back forward". He also contradicts Dr. Jhala and says "back that in the type of the gutter fracture caused in the present case the wound is likely to be narrower at the entry than at the exit. He further says that assuming that the gutter fracture wound was caused by a ricocheted bullet and assuming further that there was enough force left after rebound, a ricocheted bullet could cause a fracture of even the inner table and give rise to intra cranial haemorrhage. He asserts that a bullet that can cause a gutter fracture of the outer table is capable of fracturing the inner table also. In short, he contradicts every statement of Dr. Jhala; to quote his own words, "I do not agree that injury No.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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3, i.e., the gutter fracture, cannot be inflicted from front to back for the reason that the slope of the gutter fracture was behind forward direction of the grazing of the bullet; I also do not agree with the proposition that if it would have been from the front then the slope of the gutter wound would have been from the front backward; 662 I have not heard of such a rule and that at the near end of the impact of a bullet the gutter fracture is deeper than where it flies off; I do not agree that the depth of the fracture at two points is more important factor in arriving at the conclusion of the point of impact of the bullet. " He also contradicts the opinion of Dr. Jhala that injury No. 3 could not be caused in a struggle between the victim and the assailant. Dr. Baliga has been cross examined at great length. It is elicited from him that he is not a ballistics expert and that his experience in the matter of direction of bullet injuries is comparatively less than his experience in other fields. His opinion that the gutter fracture injury could be and was more likely to be caused from an injury glancing front backwards is based upon a comparison of the photograph of the skull shown to him with the figure 15 in the book "Recent Advances in Forensic Medicine " by Smith and Glaister, p. 21.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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The said figure is marked as exhibit Z in the case. The witness says that the figure shows that the narrower part of the gutter is on the rear and the wider part is in front. In the cross examination he further says that the widest part of the gutter in figure exhibit Z is neither at the front and nor at the rear end, but the rear end is pointed and tailed. It is put to this witness that figure exhibit Z does not support his evidence and that he deliberately refused to see at it correctly, but he denies it. The learned Judges of the High Court, after seeing the photograph exhibit Z with a magnifying glass, expressed the view that what Dr. Baliga called the pointed and tailed part of the gutter was a crack in the skull and not a part of the gutter. This observation has not been shown to us to be wrong.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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When asked on what scientific principle he would support his opinion, Dr. Baliga could not give any such principle, but only said that it was likely he puts emphasis on the word "likely" that the striking end was likely to be 663 narrower and little broader at the far end. He agrees that when a conical bullet hits a hard bone it means that the hard bone is protruding in the path of the projectile and also agrees that after the initial impact the bullet adjusts itself in the new direction of flight and that the damage caused at the initial point of the impact would be more than at any subsequent point. Having agreed so far, he would not agree on the admitted hypothesis that at the initial point of contract the wound should be wider than at the exit. But he admits that he has no authority to support his submission. Finally, he admits that generally the breadth and the depth of the gutter wound would indicate the extensive nature of the damage. On this aspect of the case, therefore, the witness has broken down and his assertion is not based on any principle or on sufficient data.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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The next statement he makes is that he does not agree that the fracture of the inner table shows that the initial impact was from behind; but he admits that the fracture of the inner table is exactly below the backside of the gutter, though he adds that there is a more extensive crack in front of the anterior end of the gutter. He admits that in the case of a gutter on the skull the bone material which dissociates from the rest of the skull is carried in the direction in which the bullet flies but says that he was not furnished with any information in that regard when he gave his opinion. Coming to the question of the ricocheting, he says that a ricocheting bullet can produce depressed fracture of the skull. But when asked whether in his experience he has come across any bullet hitting a hard object like a wall and rebounding and causing a fracture of a hard bone or whether he has any text book to support his statement, he says that he cannot quote any instance nor 664 an authority. But he says that it is so mentioned in several books. Then he gives curious definitions of the expressions "likely to cause death", "necessarily fatal " etc.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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He would go to the extent of saying that in the case of injury No. 3, the chance of recovery is up to 80 per cent. ; but finally he modifies that statement by saying that he made the statement on the assumption that the haemorrhage in the subarachnoid region is localised, but if the haemorrhage is extensive his answer does not hold good. Though he asserts that at a range of about 12 inches the wound does not show as a rule evidence of powder mark, he admits that he has no practical experience that beyond a distance of 12 inches no powder mark can be discovered as a rule. Though text books and authorities are cited to the contrary, he still sticks to his opinion; but finally he admits that he is not a ballistics expert and has no experience in that line. When he is asked if after injury No.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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3, the victim could have continued the struggle, he says that he could have, though he adds that it was unlikely after the victim had received both injuries Nos. 1 and 3. He admits that the said injury can be caused both ways, that is, by a bullet hitting either on the front of the head or at the back of the head. But his reasons for saying that the bullet might have hit the victim on the front of the head are neither supported by principle nor by the nature of the gutter wound found in the skull. exhibit Z relied upon by him does not support him. His theory of a ricocheted bullet hitting the skull is highly imaginary and cannot be sustained on the material available to us: firstly, there is no mark found in the bath room wall or elsewhere indicating that the bullet struck a hard substance before ricocheting and hitting the skull, and secondly, it does not appear to be likely that such a ricocheted bullet ejected from exhibit B could have caused such an extensive injury to the head of the deceased as found in this case.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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665 Mr. Pathak finally argues that the bullet exhibit F 2a has a "process", i.e., a projection which exactly fits in the denture found in the skull and, therefore, the projection could have been caused only by the bullet coming into contact with some hard substance before it hit the head of the deceased. This suggestion was not made to any of the experts. It is not possible for us to speculate as to the manner in which the said projection was caused. We, therefore, accept, the evidence of the ballistics expert, P. W. 4, and that of Dr. Jhala, P. W. 18, in preference to that of Dr. Baliga. Now coming to injuries Nos 2, 4 and 5, injury No. 4 is found on the first joint of the crease of the index finger on the back side of the left palm and injury No.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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5 at the joint level of the left middle finger dorsal aspect, and injury No. 2 is a punctured wound in the web between the ring finger and the little finger of the left hand communicating with a punctured wound on the palmer aspect of the left knukle level between the left little and the ring finger. Dr. Jhala says that all the said injuries are on the back of the left palm and all have corbonaceous tattooing and that the injuries should have been caused when his left hand was between 6 and 18 inches from the muzzle of the revolver. He further says that all the three injuries could have been caused by one bullet, for, as the postmortem discloses, the three injuries are in a straight line and therefore it can clearly be inferred that they were caused by one bullet which passed through the wound on the palmar aspect. His theory is that one bullet, after causing injuries Nos. 4 and 5 passed between the little and ring finger and caused the punctured wound on the palmar aspect of the left hand.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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He is also definitely of the view that these wounds could not have been received by the victim during a struggle in which both of them were in each other 's grip. It 666 is not disputed that injury No. 1 and injury No. 3 should have been caused by different bullets. If injuries Nos. 2, 4 and 5 were caused by different bullets, there should have been more than three bullets fired, which is not the case of either the prosecution or the defence.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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In the circumstances, the said wounds must have been caused only by one bullet, and there is noting improbable in a bullet touching three fingers on the back of the palm and taking a turn and passing through the web between the little and ring finger. Dr. Baliga contradicts Dr. Jhala even in regard to these wounds. He says that these injuries, along with the others, indicate the probability of a struggle between the victim and the assailant over the weapon; but he does not give any reasons for his opinion. He asserts that one single bullet cannot cause injuries Nos. 2, 4 and 5 on the left hand fingers, as it is a circuitous course for a bullet to take and it cannot do so without meeting with some severe resistance. He suggests that a bullet which had grazed and caused injuries Nos.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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4 and 5 could then have inflicted injury No. 3 without causing carbonaceous tattooing on the head injury. We have already pointed out that the head injury was caused from the back, and we do not see any scope for one bullet hitting the fingers and thereafter causing the head injury. If the two theories, namely, that either injury No. 1 or injury No. 3 could have been caused by the same bullets that might have caused injury No.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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2 and injuries Nos. 4 and 5 were to be rejected, for the aforesaid reasons, Dr. Baliga 's view that injuries Nos. 2,4 and 5 must have been caused by different bullets should also be rejected, for to accept it, we would require more than three bullets emanating from the revolver, whereas it is the common case that more than three bullets were not fired from the revolver. That apart in the cross examination this witness accepts 667 that the injury on the first phalangeal joint of the index finger and the injury in the knuckle of the middle finger and the injury in the web between the little and the ring finger, but not taking into account the injury on the palmar aspect would be in a straight line. The witness admits that there can be a deflection even against a soft tissue, but adds that the soft tissue being not of much thickness between the said two fingers, the amount of deflection is negligible. But he concludes by saying that he is not saying this as an expert in ballistics.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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If so, the bullet could have deflected after striking the web between the little and the ring finger. We, therefore, accept the evidence of Dr. Jhala that one bullet must have caused these three injuries. Strong reliance is placed upon the nature of injury No. 6 found on the back of the deceased viz, a vertical abrasion in the right shoulder blade of dimensions 3"x1" just outside the spine, and it is said that the injury must have been caused when the accused pushed the deceased towards the door of the bath room. Nanavati in his evidence says that he "banged" him towards the door of the bath room, and after some struggle he again pushed the deceased into the bath room. It is suggested that when the accused "banged" the deceased towards the door of the bath room or when he pushed him again into the bath room, this injury might have been caused by his back having come into contact with the frame of the door.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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It is suggested to Dr. Jhala that injury No. 6 could be caused by the man 's back brushing against a hard substance like the edge of the door, and he admits that it could be so. But the suggestion of the prosecution case is that the injury must have been caused when Ahuja fell down in the bath room in front of the commode and, when falling, his back may have caught the edge of the commode or the bath tub or the edge of the door of the bath room 668 which opens inside the bath room to the left of the bath tub. Shelat, J., says in his judgment: "If the abrasion was caused when the deceased was said to have been banged against the bath room door or its frame, it would seem that the injury would be more likely to be caused, as the deceased would be in a standing position, on the shoulder blade and not inside the right shoulder. It is thus more probable that the injury was caused when the deceased 's back came into contact either with the edge of the door or the edge of the bathtub or the commode when he slumped. " It is not possible to say definitely how this injury was caused, but it could have been caused when the deceased fell down in the bath room.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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The injuries found on the dead body of Ahuja are certainly consistent with the accused intentionally shooting him after entering the bed room of the deceased; but injuries Nos. 1 and 3 are wholly inconsistent with the accused accidentally shooting him in the course of their struggle for the revolver. From the consideration of the entire evidence the following 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 a loaded revolver in hand and in about a few seconds thereafter came out with the revolver in his hand.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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The deceased was found dead in his bath room with bullet injuries on his body. It is not disputed that the bullets that caused injuries to Ahuja emanated from the revolver that was in the hand of the accused. After the shooting, till his 669 trial in the Sessions Court, he did not tell anybody that he shot the deceased by accident. Indeed, he confessed his guilt to the Chowkidar Puransingh and practically admitted the same to his colleague Samuel. His description of the struggle in the bath room is highly artificial and is devoid of all necessary particulars. The injuries found on the body of the deceased are consistent with the intentional shooting and the main injuries are wholly inconsistent with accidental shooting when the victim and the assailant were in close grips.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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The other circumstances brought out in the evidence also establish that there could not have been any fight or struggle between the accused and the deceased. We, therefore, unhesitatingly hold. 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. In this view it is not necessary to consider the question whether the accused had discharged the burden laid on him under section 80 of the Indian Penal Code, especially as learned counsel appearing for the accused here and in the High Court did not rely upon the defence based upon that section. That apart, we agree with the High Court that, on the evidence adduced in this case, no reasonable body of persons could have come to the conclusion which the jury reached in this case. For that reason also the verdict of the jury cannot stand.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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Even so, it is contended by Mr. Pathak that the accused shot the deceased while deprived of the power of self control by sudden and grave provocation and, therefore, the offence would 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 670 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) The deceased must have given provocation to the accused. (2) The provocation must be grave. (3) The provocation must be sudden.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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(4) The offender, by reason of the said provocation, shall have been deprived of his power of self control. (5) He should have killed the deceased during the continuance of the deprivation of the power of self control. (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 first question raised is whether Ahuja gave provocation to Nanawati within the meaning of the exception and whether the provocation, if given by him, was grave and sudden. Learned Attorney General argues, that though a confession of adultery by a wife may in certain circumstances be provocation by the paramour himself, under different circumstances it has to be considered from the standpoint of the person who conveys it rather than from the standpoint of the person who gives it. He further contends that even if the provocation was deemed to have been given by Ahuja, and though the said provocation might have been grave, it could not be sudden, for the provocation given by Ahuja was only in the past.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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On the other hand, Mr. Pathak contends that the act of Ahuja, namely, the seduction of Sylvia, gave provocation though the fact of seduction was communicated to the accused by Sylvia and that for the ascertainment of the suddenness 671 of the provocation it is not the mind of the person who provokes that matters but that of the person provoked that is decisive. It is not necessary to express our opinion on the said question, for we are satisfied that, for other reasons, the case is not covered by Exception 1 to section 300 of the Indian Penal Code. The question that the Court has to consider is 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. In Mancini vs Director of Public Prosecutions (1), Viscount Simon, L. C., states the scope of the doctrine of provocation thus: "It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self control as the result of which he commits the unlawful act which causes death.. The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex vs Lesbini, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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In applying the text, it is of particular importance to (a) consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, 672 the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter." Viscount Simon again in Holmes vs Director of Public Prosecutions elaborates further on this theme. There, the appellant had entertained some suspicions of his wife 's conduct with regard to other men in the village. On a Saturday night there was a quarrel between them when she said, "Well, if it will ease your mind, I have been untrue to you", and she went on, "I know I have done wrong, but I have no proof that you haven 't at Mrs. X. 's".
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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With this appellant lost his temper and picked up the hammerhead and struck her with the same on the side of the head. As he did not like to see her lie there and suffer, he just put both hands round her neck until she stopped breathing. The question arose in that case whether there was such provocation as to reduce the offence of murder to manslaughter. Viscount Simon, after referring to Mancini 's case(2), proceeded to state thus : "The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill (such as Holmes admitted in the present case), or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. " Goddard, C. J., Duffy 's case defines provocation thus "Provocation is some act, or series of acts, done by the dead man to the accused 673 which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.. What matters is whether this girl (the accused) had the time to say : `Whatever I have suffered, whatever I have endured, I know that Thou shall not kill. '
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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That is what matters. Similarly,...circumstances which induce a desire for revenge, or a sudden passion of anger, are not enough. Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that the person has had time to think, to reflect, and that would negative a sudden temporary loss of self control which is of the essence of provocation. Provocation being,,...as I have defined it, there are two things, in considering it, to which the law attaches great importance. The first of them is, whether there was what is sometimes called time for cooling, that is, for passion to cool and for reason to regain dominion over the mind... Secondly in considering whether provocation has or has not been made out, you must consider the retaliation in provocation that is to say, whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been given." A passage from the address of Baron Parke to the jury in R. vs Thomas (1) extracted in Russell on Crime, 11th ed., Vol.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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I at p. 593, may usefully be quoted : 674 "But the law requires two things : first that there should be that provocation; and secondly, that the fatal blow should be clearly traced to the influence of passion arising from that provocation." The passages extracted above lay down the following principles: (1) Except in circumstances of most extreme and exceptional character, a mere confession of adultery is not enough to reduce the offence of murder to manslaughter. (2) The act of provocation which reduced the offence of murder to manslaughter must be such as to cause a sudden and temporary loss of self control; and it must be distinguished from a provocation which inspires an actual intention to kill. (3) The act should have been done during the continuance of that state of mind, that is, before there was time for passion to cool and for reason to regain dominion over the mind. (4) The fatal blow should be clearly traced to the influence of passion arising from the provocation. On the other hand, in India, the first principle has never been followed.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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That principle has had its origin in the English doctrine that mere words and gestures would not be in point of law sufficient to reduce murder to manslaughter. But the authors of the Indian Penal Code did not accept the distinction. They observed : "It is an indisputable fact, that gross insults by word or gesture have as great tendency to move many persons to violent passion as dangerous or painful bodily in juries ; nor does it appear to us that passion excited by insult is entitled to less indulgence than passion excited by pain. On the contrary, the circumstance that a man resents an insult more than a wound is anything but 675 a proof that he is a man of peculiarly bad heart." Indian courts have not maintained the distinction between words and acts in the application of the doctrine of provocation in a given case. The Indian law on the subject may be considered from two aspects, namely, (1) whether words or gestures unaccompanied by acts can amount to provocation and (2) what is the effect of the time lag between the act of provocation and the commission of the offence.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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In Empress vs Khogayi, a division bench of the Madras High Court held, in the circumstances of that case, that abusive language used would be a provocation sufficient to deprive the accused of self control. The learned Judges observed : "What is required is that it should be of a character to deprive the offender of his self control. In determining whether it was so, it is admissible to take into account the condition of mind in which the offender was at the time of the provocation. In the present case the abusive language used was of the foulest kind and was addressed to man already enraged by the conduct of deceased 's son. " It will be seen in this case that abusive language of the foulest kind was held to be sufficient in the case of man who was already enraged by the conduct of deceased 's son. The same learned Judge in a later decision in Boya Munigadu vs The Queen upheld plea of grave and sudden provocation in the following circumstances: The accused saw the deceased when she had cohabitation with his bitter enemy; that night he had no meals; next morning he went to the ryots to get his wages from them, and at that time he saw his wife eating food along with her paramour; he killed the paramour with a bill hook.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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The learned 676 Judges held that the accused had sufficient provocation to bring the case within the first exception to section 300 of the Indian Penal Code. The learned Judges observed : ".. If having witnessed the act of adultery, he connected this subsequent conduct as he could not fail to connect it, with that act, it would be conduct of a character highly exasperating to him, implying as it must, that all concealment of their criminal relations and all regard for his feelings were abandoned and that they purposed continuing their course of misconduct in his house. This, we think, amounted to provocation, grave enough and sudden enough to deprive him of his self control, and reduced the offence from murder to culpable homicide not amounting to murder. " The case illustrates that the state of mind of the accused, having regard to the earlier conduct of the deceased, may be taken into consideration in considering whether the subsequent act would be a sufficient provocation to bring the case within the exception. Another division bench of the Madras High Court in In re Murugian held that, where the deceased not only committed adultery but later on swore openly in the face of the husband that she would persist in such adultery and also abused the husband for remonstrating against such conduct, the case was covered by the first exception to section 300 of the Indian Penal Code.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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The judgement of the Andhra Pradesh High Court in In re C. Narayan adopted the same reasoning in a case where the accused, a young man, who had a lurking suspicion of the conduct of his wife, who newly joined him, was confronted with the confession of illicit intimacy with, and consequent pregnancy by another, strangled his wife to death, and 677 held that the case was covered by Exception 1 to section 300 of the Indian Penal Code. These two decisions indicate that the mental state created by an earlier act may be taken into consideration in ascertaining whether a subsequent act was sufficient to make the assailant to lose his self control. Where the deceased led an immoral life and her husband, the accused, upbraided her and the deceased instead of being repentant said that she would again do such acts, and the accused, being enraged struck her and, when she struggled and beat him, killed her, the Court held the immediate provocation coming on top of all that had gone before was sufficient to bring the case within the first exception to section 300 of the Indian Penal Code. So too, where a woman was leading a notoriously immoral life, and on the previous night mysteriously disappeared from the bedside of her husband and the husband protested against her conduct, she vulgarly abused him, whereupon the husband lost his self control, picked up a rough stick, which happened to be close by and struck her resulting in her death, the Lahore High Court, in Jan Muhammad vs Emperor, held that the case was governed by the said exception. The following observations of the court were relied upon in the present case : "In the present case my view is that, in judging the conduct of the accused, one must not confine himself to the actual moment when the blow, which ultimately proved to be fatal was struck, that is to say, one must not take into consideration only the event which took place immediately before the fatal blow was struck. We must take into consideration the previous conduct of the woman............. As stated above, the whole unfortunate affair 678 should be looked at as one prolonged agony on the part of the husband which must have been preying upon his mind and led to the assault upon the woman, resulting in her death."
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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A division bench of the Allahabad High Court in Emperor vs Balku invoked the exception in a case where the accused and the deceased, who was his wife 's sister 's husband, were sleeping on the same cot, and in the night the accused saw the deceased getting up from the cot, and going to another room and having sexual intercourse with his (accused 's) wife, and the accused allowed the deceased to return to the cot, but after the deceased fell asleep, he stabbed him to death. The learned Judges held : "When Budhu (the deceased) came into intimate contact with the accused by lying beside him on the charpai this must have worked further on the mind of the accused and he must have reflected that `this man now lying beside me had been dishonouring me a few minutes ago '. Under these circumstances we think that the provocation would be both grave and sudden. " The Allahabad High Court in a recent decision, viz., Babu Lal vs State applied the exception to a case where the husband who saw his wife in a compromising position with the deceased killed the latter subsequently when the deceased came, in his absence, to his house in another village to which he had moved. The learned Judges observed : "The appellant when he came to reside in the Government House Orchard felt that he had removed his wife from the influence of the deceased and there was no more any contact between them. He had lulled himself into a false security.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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This belief was shattered 679 when he found the deceased at his hut when he was absent. This could certainly give him a mental jolt and as this knowledge will come all of a sudden it should be deemed to have given him a grave and sudden provocation. The fact that he had suspected this illicit intimacy on an earlier occasion also will not alter the nature of the provocation and make it any the less sudden. " All the said four decisions dealt with a case of a husband killing his wife when his peace of mind had already been disturbed by an earlier discovery of the wife 's infidelity and the subsequent act of her operated as a grave and sudden provocation on his disturbed mind. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation ? No abstract standard of reasonableness can be laid down.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc. ; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision : it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self control and killed Ahuja deliberately. The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of "grave 680 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.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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(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 of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation. Bearing these principles in mind, let us look at the facts of this case. When Sylvia confessed to her husband that she had illicit intimacy with Ahuja, the latter was not present. We will assume that he had momentarily lost his self control.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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But if his version is true for the purpose of this argument we shall accept that what he has said is true it shows 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 bed room of Ahuja and shot him dead. Between 1 30 P.M., when he left his house, and 4 20 P.M., when the murder took place, three hours had elapsed, and therefore there was sufficient time for him to 681 regain his self control, even if he had not regained it earlier. On the other hand, his conduct clearly shows 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 we do not believe that it does not affect the question, for the accused entered the bed room of the deceased to shoot him.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception 1 to section 300 of the Indian Penal Code. In the result, 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 are correct, and there are absolutely no grounds for interference. The appeal stands dismissed. Appeal dismissed.
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Appellant Nanavati, a Naval Officer, was put up on trial under sections 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, 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 568 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 prosecution witness 12 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. This witness also deposed that he told P. W. 13, Duty Officer at the Police Station, what the accused had told him. This statement was not recorded by P. W. 13 and was denied by him in his cross examination. In his statement to the investigation officer it was also not recorded. The jury returned a verdict of 'not guilty ' on both the charges by a majority of 8: 1. The Sessions Judge disagreed with that verdict, as in his view, no reasonable body of men could bring that verdict on the evidence and referred the matter to the High Court 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. One of them held that there were misdirections in the Sessions Judge 's charge to the jury and on a review of the evidence came to the conclusion that the accused was guilty of murder and the verdict of the jury was perverse. The other Judge based his conclusion on the ground that no reasonable body of persons could come to the conclusion that jury had arrived at. On appeal to this Court by special leave it was contended on behalf of the appellant that under section 307 of the Code of Criminal Procedure it was incumbent on the High Court to decide the competency of the reference on a perusal of the order of reference itself since it had no jurisdiction to go into the evidence for that purpose, that the High Court was not empowered by section 307(3) of the Code to set aside the verdict of the jury on the ground that there were misdirections in the charge, that there were no misdirections in the charge nor was the verdict perverse and that since there was grave and sudden provocation the offence committed if any, was not murder but culpable homicide not amounting to murder. ^ Held, that the connections were without substance and the appeal must fail. Judged by its historical background and properly construed, section 307 of the Code of Criminal Procedure was meant to confer wider powers of interference on the High Court than 569 in an appeal to safeguard against an erroneous verdict of the jury. This special jurisdiction conferred on the High Court by section 307 of the Code is essentially different from its appellate jurisdiction under sections 410 and 417 of the code, section 423(2) conferring no powers but only saving the limitation under section 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law. The words "for the ends of justice" in section 307(1) of the Code, which indicate that the Judge disagreeing with the verdict, must be of the opinion that the verdict was one which no reasonable body of men could reach on the evidence, coupled with the words 'clearly of the opinion ' gave the Judge a wide and comprehensive discretion to suit different situations. Where. therefore, the Judge disagreed with the verdict and recorded the grounds of his opinion, the reference was competent, irrespective of the question whether the Judge was right in so differing from the jury or forming such an opinion as to the verdict. There is nothing in section 307(1) of the Code that lends support to the contention that though the Judge had complied with the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge. Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinions of the Sessions Judge and the jury, virtually conferred the functions both of the jury and the Judge on it. Where, therefore, misdirections vitiated the verdict of the jury, the High Court had as much the power to go into the entire evidence in disregard of the verdict of the jury as it had when there were no misdirections and interfere with it if it was such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by section 423 or any other sections of the Code. Ramanugarh Singh vs King Emperor, (1946) L.R. 73 I. A. 174, Akhlakali Hayatalli vs State of Bombay, ;, Ratan Rai vs State of Bihar,, Sashi Mohan Debnath vs State of West Bengal, and Emperor vs Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to. A misdirection is something which the judge in his charge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omission to mention matters which are essential to the prosecution or the defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection. But in either case, every misdirection or non direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice. Mustak Hussein vs State of Bombay [1953] section C. R. 809 and Smt. Nagindra Bala Mitra vs Sunil Chandra Roy, ;, referred to. There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under section 105 of the Evidence Act where he pleads any of the General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and the burden that lies on the prosecution to prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exception the prosecution has to discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may be sufficient to negative one or more of the ingredients of the offence. Woolmington vs Director of Public Prosecutions, L. R. ;, considered. Attygalle vs Emperor, A. I. R. 1936 P. C. 169, distinguished. State of Madras vs A. Vaidyanatha Iyer, ; and C. section D. Swamy vs State, ;, referred to. Consequently, where, as in the instant case, the accused relied on the Exception embodied in section 80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that on the accused and explain the implications of the terms 'lawful act ', lawful manner ', 'unlawful means ' and 'with proper care and caution ' occurring in that section and point out their application to the facts of the case these were serious misdirections that vitiated the verdict of the jury. Extra judicial confession made by the accused is a direct piece of evidence and the stringent rule of approach to circumstantial evidence has no application to it. Since in the instant case, the Sessions Judge in summarising the circumstances mixed up the confession with the circumstances while directing the jury to apply the rule of circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated by the grave misdirection that must effect that correctness of the jury 's verdict. The question whether the omission to place certain evidence before the jury amounts to a misdirection has to be decided on the facts of each case. Under section 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence is closed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidence from the correct perspective. The omission of the Judge in instant case, therefore, to place the contents of the letters written by the wife to her paramour which in effect negatived the case made by the husband and the wife in their deposition was a clear misdirection. Although the letters were read to jury by the counsel for the parties, that did not absolve the judge from his clear duty in the matter. R. V. Roberts, and R. vs Affield,, held inapplicable. The commencement of investigation under section 156 (1) of the Code of Criminal Procedure in a particular case, which is a question of fact, has to be decided on the facts of the case, irrespective of any irregularity committed by the Police Officer in recording the first information report under section 154 of the Code. Where investigation had in fact commenced, as in the instant case, section 162 of the Code was immediately attracted. But the proviso to that section did not permit the eliciting from a prosecution witness in course of his cross examination of any statement that he might have made to the investigation officer where such statement was not used to contradict his evidence. The proviso also had no application to a oral statement made during investigation and not reduced to writing. In the instant case, therefore, there could be no doubt that the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himself in placing the said evidence before the jury. Exception 1 to section 300 of the Indian Penal Code could have no application to the case. The test of "grave and sudden" provocation under the Exception must be whether a reasonable person belonging to the same class of society as the accused, placed in a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certain circumstances cause grave and sudden provocation so as to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken into consideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly traced to the influence of the 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. Mancini vs Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes vs Director of Public Prosecutions, L. R. Duffy 's case, [1949]1 All. E. R. 932 and R. vs Thomas, ;, considered. Empress vs Khogayi, Mad. 122, Boya Munigadu vs The Queen, Mad. 33, In re Murugian I. L. R., In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad vs Emperor, I. L. R., Emperor vs Balku, I. L. R. (1938) All 789 and Babu Lal vs State A. I. R. 1960 All. 223, referred to. Semble: Whether a reasonable person in the circumstances of a particular case committed the offence under grave and sudden provocation is a question of fact for the jury to decide. Holmes vs Director of Public Prosecution, L. R., considered.
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What is the summary of this judgment?
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Appeals Nos. 708 to 710 of 1966. Appeals by special leave from the judgment and order dated July 23, 1964 of the Andhra Pradesh High Court in Case Referred No. 42 of 1962. Sukumar Mitra, Y. V. Anjaneyulu, Bhuvnesh Kumari, J. B. Dadachanji and O. C. Mathur, for the appellant (in all the appeals).
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The assessee firm purchased a Brengun factory from the Government of India and sold the stores and part of the lands and buildings shortly afterwards At a higher price. It admitted before the Income tax authorities that the purchase and sale in respect of the stores constituted an adventure in the nature of trade, but in respect of the land and buildings sold it contended that they had been purchased by way of investment, and the sale of a part of them did not result in assessable profit. The claim was rejected by the Income tax Officer, by the Appellate Commissioner, and by the Appellate Tribunal. The High Court in a reference under a. 66(1) also rejected it. The firm appealed to this Court by special leave. HELD : (i) In reaching the conclusion that a transaction is an adventure in the nature of trade, the Appellate Tribunal has to find the primary evidentiary facts and then apply the legal principle involved in the statutory expression "adventure in the nature of trade,, used in section 2(4) of the Indian Income tax Act. A question of this description is a mixed question of law and fact and the decision of the Appellate Tribunal thereon is open to challenge under section 66(1) of the Act. [442 F G] (ii) The question whether the transaction is an adventure in the nature of trade must be decided on a consideration of all the relevant facts and circumstances which are proved in the particular case. The answer to the question does not depend on the application of any abstract rule, principle or formula but must depend upon the total impression and effect of all the relevant facts and circumstances established in the particular case. [442 H] (iii) In the present case the appellant firm purchased the Brengun factory from borrowed money. The income from the property was only about 1/6 of the interest payable by the company on the money borrowed. The first sale was effected by the firm within three months of the purchase. and the sums received from sale were utilised for paying off the debts as also the dues to the Government. The firm had not enough financial resources to invest the money required to purchase the factory and the transaction could not therefore be with a view to making a permanent investment, but only for making profit. It had not been established by evidence that the appellant firm purchased the Brengun factory for purpose of establishing a cycle factory. Having regard to the total effect of all the relevant facts and circumstances established in the case it was rightly held by the High Court that the transaction was an adventure in the nature of trade and part of a profit making scheme. [448 B H] (iv) The statement of case is not intended to be a mere copy of the order sheet in a litigation but it must set out the points raised by the.aggrieved party, the reply thereto, if any, and the authorities or statutory 440 provisions relied upon for the view taken by the Appellate Tribunal together with an intelligible summary of the facts found by the Appellate Tribunal. The Tribunal should clearly state its conclusions and findings of fact and should not leave it to the High Court or this Court to deduce the findings or to collect facts from a large number of documents which are part of the record of the case. [449 A D] Vankataswami Naidu & Co. vs Commissioner of Income tax,, Californian Copper Syndicate vs Harris, 5 T.C. 159, Martin vs Lowry, I I T.C. 297, Rutledge vs Commissioners of Inland Revenue, 14 Tax Cases 490, Commissioners of Inland Revenue vs Fraser, the assessee. 24 Tax Cases 498, Leeming vs Jones, 15 Tax Cases 333, Saroj Kumar Mazumdar vs Commissioner Income tax, West Bengal, and Commissioners of Inland Revenue vs Reinhold, 34 Tax Cases 389, referred to.
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What is the summary of this judgment?
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Niren De, Solicitor General, section K. Aiyar, R. N. Sachthey and section P. Naya;, for the respondent (in all the appeals), The Judgment of the Court was delivered by Ramaswami, J. These appeals are brought by special leave from the judgment of the High Court of Andhra Pradesh dated 23rd July, 1964 in referred case No. 42 of 1962. The assessment years involved in these appeals are and 1954 55, the relevant accounting periods being the years ending 30 9 1948, 30 9 1952 and 30 9 1953, respectively. The assessee firm Khan Bahadur Ahmed Alladin & Sons (hereinafter referred to as the 'assessee firm ') consists of three partners, Khan Bahadur Ahmed Alladin, and his two sons, Khan Saheb Dost Mohammed Alladin and Noor Mohammed Alladin. The assessee firm purchased the Brengun Factory and the properties attached to it consisting of 403 acres of land, 14 factory buildings, about on, hundred residential quarters, and railway sidings, furnitures etc., in addition to the stores, from the Government of India.
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The assessee firm purchased a Brengun factory from the Government of India and sold the stores and part of the lands and buildings shortly afterwards At a higher price. It admitted before the Income tax authorities that the purchase and sale in respect of the stores constituted an adventure in the nature of trade, but in respect of the land and buildings sold it contended that they had been purchased by way of investment, and the sale of a part of them did not result in assessable profit. The claim was rejected by the Income tax Officer, by the Appellate Commissioner, and by the Appellate Tribunal. The High Court in a reference under a. 66(1) also rejected it. The firm appealed to this Court by special leave. HELD : (i) In reaching the conclusion that a transaction is an adventure in the nature of trade, the Appellate Tribunal has to find the primary evidentiary facts and then apply the legal principle involved in the statutory expression "adventure in the nature of trade,, used in section 2(4) of the Indian Income tax Act. A question of this description is a mixed question of law and fact and the decision of the Appellate Tribunal thereon is open to challenge under section 66(1) of the Act. [442 F G] (ii) The question whether the transaction is an adventure in the nature of trade must be decided on a consideration of all the relevant facts and circumstances which are proved in the particular case. The answer to the question does not depend on the application of any abstract rule, principle or formula but must depend upon the total impression and effect of all the relevant facts and circumstances established in the particular case. [442 H] (iii) In the present case the appellant firm purchased the Brengun factory from borrowed money. The income from the property was only about 1/6 of the interest payable by the company on the money borrowed. The first sale was effected by the firm within three months of the purchase. and the sums received from sale were utilised for paying off the debts as also the dues to the Government. The firm had not enough financial resources to invest the money required to purchase the factory and the transaction could not therefore be with a view to making a permanent investment, but only for making profit. It had not been established by evidence that the appellant firm purchased the Brengun factory for purpose of establishing a cycle factory. Having regard to the total effect of all the relevant facts and circumstances established in the case it was rightly held by the High Court that the transaction was an adventure in the nature of trade and part of a profit making scheme. [448 B H] (iv) The statement of case is not intended to be a mere copy of the order sheet in a litigation but it must set out the points raised by the.aggrieved party, the reply thereto, if any, and the authorities or statutory 440 provisions relied upon for the view taken by the Appellate Tribunal together with an intelligible summary of the facts found by the Appellate Tribunal. The Tribunal should clearly state its conclusions and findings of fact and should not leave it to the High Court or this Court to deduce the findings or to collect facts from a large number of documents which are part of the record of the case. [449 A D] Vankataswami Naidu & Co. vs Commissioner of Income tax,, Californian Copper Syndicate vs Harris, 5 T.C. 159, Martin vs Lowry, I I T.C. 297, Rutledge vs Commissioners of Inland Revenue, 14 Tax Cases 490, Commissioners of Inland Revenue vs Fraser, the assessee. 24 Tax Cases 498, Leeming vs Jones, 15 Tax Cases 333, Saroj Kumar Mazumdar vs Commissioner Income tax, West Bengal, and Commissioners of Inland Revenue vs Reinhold, 34 Tax Cases 389, referred to.
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