DR.

RAM MAHOHAR LOHIYA NATIONAL LAW

UNIVERSITY
2015-16

SUBJECT:BASICS OF LEGISLATION AND CASE LAW

PROJECT ON: K.M. NANAVATI VS. STATE OF MAHARASTRA

SUBMITTED TO SUBMITTED BY
Mr. Shashank sekhar Avinash Maurya
Assistant Professor ROLL NO. 35
Dr.RMLNLU SECTION -A
BA LLB (HONS.)

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 Acknowledgement

First of all, I would like to thank Mr. Shashank sekhar for giving me this opportunity to make
the project on such an immense topic and all the support and guidance that I have received
from him, without which this project could not have turned into a reality. I would also like to
thank all my colleagues and seniors for providing me support and material facts and figures
related to this topic. Last but not the least; I would like to thank my parents for providing me
appropriate guidance and support to prepare the project. All the above mentioned people have
very whole heartedly helped me to make this project in the present shape.

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 Declaration

I, Avinash Maurya STUDENT of B A LLB (HONS) 1st semester hereby declare that project
work submitted is my own work and has been carried under the supervision of Mr. Shashank
Shekher,faculty member of renowned law university,Dr. Ram Manohar Lohia National Law
University.this work has been not submitted to any other university.

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 Table of contents
Introduction..

Facts of the case

Judgement .

Jury trial.

Retrial .

Conlusion

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 List of abbreviation

AIR-all india reports

SLP- special leave pettition

Scc- superme court cases

Laws applied
Code of Criminal Procedure(Act, 5 of 1898), 88. 307, 410, 417, 418 (1), 423(2), 297,155 (1),
162-Indian Penal Code, 1860 (Act 45 of 1860), 88. 302, 300, Exception I-Indian Evidence
Act,1872 (1 of 1872), 8. 105.

Court bench
Headed by: Subbarao,K.

Members: Das, S.K.; Dayal, Raghubar

Case decided on 24.11.1961

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 Introduction
This case is one of the landmark judgements of India which received unprecedented media
attention as this case involves Kawas Manekshaw Nanavati (1925), a Parsi and a commander
with the IndianNavy, had settled down in Mumbai with Sylvia (1931), his English-born wife
and their two sons and a daughter1. tried for committing the murder of his wifes lover,
Mr.Prem Ahuja. Initially Nanavati was declared not guilty but later the verdict was dismissed
by the Bombay High Court and the case was tried under a bench trial. The incident received
unprecedented media coverage and inspired several books and movies. Nanavati was initially
declared not guilty by a jury, but the verdict was dismissed by the Bombay High Court and
the case was retried as a bench trial. The case was the last to be heard as a jury trial in India,
as the government abolished jury trials as a result of the case

This was the last case to be heard as a jury trial in India because as the result of this case, the
government abolished the jury trials in India.

Statement of problem
In this case when the accuse had applied before the governor for pardoning of his punishment
and at the same time he has applied for the appeal in the Supreme Court against the decision
of the High Court2. To this SC dismissed the petition on the ground that both (governors
power and SC petition) cannot go on together3.

Objective

1 ^ a b c d "K.M.Nanavativs.StateofMaharashtra". Retrieved 17 October 2005.

2 ^ a b c d Inconsistent and Incomplete.[1]"SylviaNanavati". "NanavatiProfile".

"PremBhagwandasAhuja". Mumbai 27 April 1959: Nanavati's Story. Retrieved 19
December 2011

3 ^ a b c d e f Sethi, Aarti (2005). "TheHonourableMurder:TheTrialofKawas

ManeckshawNanavati" (PDF). In Narula, Monica; Sengupta, Shuddhabrata;
Bagchi, Jeebesh; Lovink, Geert. Sarai Reader 2005: Bare Acts. TheSarai
ProgrammeatCSDS. pp. 444453. ISBN 81-901429-5-X.. NB: on-line chapter is in
PDF format

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The objective of this project is:
By studying this case I want to know the limitation/ scope of Art. 161 & 1424

Hypothesis
Both the procedure can work together as both are of different field.

Scope of the study

The research is a doctrinal research. The researcher here would like to know more about the
penal aspect in this context. The researcher has tried to analysis the topic by studying various
authors, experts, cases of The Indian Apex Court and High courts, articles, etc. The researcher
has strictly followed the boundary and has studied only with reference to Indian authors,
experts, cases, etc.

Methodology
The present research study is mainly a doctrinal and analytical. Keeping this in view, the
researcher has gone through different books, journals, Web references, E-journal, reports etc.
The relevant material is collected from the secondary sources. Materials and information are
collected both legal sources like books.

Brief facts of the case

The accused, Nanavati, at the time of the alleged murder, was second in command of the
Indian Naval Ship Mysore. He married Sylvia in 1949 and had three children5.

Since the time of marriage, the couple were living at different places having regard to the
exigencies of service of Nanavati. Finally, they shifted to Bombay.

4 Constitution of india 1950

5 ^ a b c d Inconsistent and Incomplete.[1]"SylviaNanavati". "NanavatiProfile".

"PremBhagwandasAhuja". Mumbai 27 April 1959: Nanavati's Story. Retrieved 19
December 2011

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In the same city the deceased Ahuja was doing business in automobiles and in the year 1956,
Agniks, who were common friends of Nanavatis and Ahujas6, introduced Ahuja and his sister
to Nanavatis. Ahuja was unmarried and was about 34 years of age at the time of his death.

Nanavati, as a Naval Officer, was frequently going away from Bombay in his ship, leaving
his wife and children in Bombay.

Gradually, friendship developed between Ahuja and Sylvia, which culminated in illicit
intimacy between them.

On April 27, 1959, Sylvia confessed to Nanavati of her illicit intimacy with Ahuja.

Enraged at the conduct of Ahuja, Nanavati went to his ship, took from the stores of the ship a
semi-automatic revolver and six cartridges on a false pretext, loaded the same, went to the
flat of Ahuja entered his bed-room and shot him dead.

Thereafter, the accused surrendered himself to the police. He was put under arrest and in due
course he was committed to the Sessions for facing a charge under s. 302 of the Indian Penal
code.

But the defence version was that the accused was away with his ship from April 6, 1959, to
April 18, 1959. Immediately after returning to Bombay, he and his wife went to Ahmednagar
for about three days. Thereafter, they returned to Bombay and the accused noticed that his
wife was behaving strangely and was not responsive or affectionate to him. When questioned,
she used to evade the issue.

At noon on April 27, 1959, when they were sitting in the sitting-room for the lunch to be
served, the accused put his arm round his wife affectionately, when she seemed to go tense
and unresponsive.

After lunch, when he questioned her about her fidelity, she shook her head to indicate that she
was unfaithful to him. He guessed that her paramour was Ahuja. As she did not even indicate
clearly whether Ahuja would marry her and look after the children, he decided to settle the
matter with him. Sylvia pleaded with him not go to Ahujas house, as he might shoot him.

Thereafter, he drove his wife, two of his children and a neighbors child in his car to a
cinema, dropped them there and promised to come and pick them up at 6 P.M. when the show
ended. He then drove his car to his ship, as he wanted to get medicine for his sick dog, he
represented to the authorities in the ship, that he wanted to draw a revolver and six rounds

6 Inconsistent and Incomplete.[1]"Sylvia Nanavati". "Nanavati Profile". "Prem

Bhagwandas Ahuja". Mumbai 27 April 1959: Nanavati's Story. Retrieved 19
December 2011

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from the stores of the ship as he was going to drive alone to Ahmednagar by night, though the
real purpose was to shoot himself.

On receiving the revolver and six cartridges, and put it inside a brown envelope. Then he
drove his car to Ahujas office, and not finding him there, he drove to Ahujas flat, range the
door bell, and, when it was opened by a servant, walked to Ahujas bed-room, went into the
bed-room and shut the door behind him.

He also carried with him the envelope containing the revolver. The accused saw the deceased
inside the bed-room, called him a filthy swine and asked him whether he would marry Sylvia
and look after the children. The deceased retorted, Am I to marry every woman I sleep
with? 7The accused became enraged, put the envelope containing the revolver on a cabinet
nearby, and threatened to thrash the deceased.

The deceased made a sudden move to grasp at the envelope, when the accused whipped out
his revolver and told him to get back. A struggle ensued between the two and during that
struggle two shots went off accidentally and hit Ahuja resulting in his death. After the
shooting the accused went back to his car and drove it to the police station where he
surrendered himself.

The trail court convicted under S.304 A of IPC and in appeal the high court convert it into
S.302 of IPC8.

So the accuse made an appeal before the SC and at the same time he made an application to
governor under Art.161.

Issues in context with interpretation of statute

7 Prakash, Gyan. "Blitz's Bombay". Seminar. Retrieved 17 October 2005.

8 Under section 304 of the Indian penal code, Culpable Homicide not amounting
to murder can be pleaded, if the homicide is not premeditated and occurs, due to
a grave or sudden provocation, or in a sudden confrontation, without taking any
undue advantage or acting in a cruel or unusual manner, irrespective of who
provoked first.

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# Whether SLP9 can be entertained without fulfill the order under Art. 14210?
# Whether the pardoning power of governor and SLP can moved together?

Answer to issue 1
The Constitution confers wide powers upon the Supreme Court such as the power to grant
special leave against orders or decrees from any court or tribunal in the country or to have
exclusive jurisdiction to decide election disputes of the President11 or Vice-President
Moreover, the law laid down by the Supreme Court is the law of the land binding on all the
courts and tribunals in the country Such powers have been conferred upon the Supreme Court
to ensure that the court does not suffer from any jurisdictional difficulties to do justice
between the parties before it.

Article 142 is one such provision in our Constitution which empowers the Supreme Court to
pass such "decree or order as may be necessary for doing complete justice between the
parties". Thus Article 142 supplements the powers already conferred upon the Supreme Court
under the Constitution to guarantee that justice is done and in doing so the Court is not
restrained by lack of jurisdiction or authority of law. Over the years the Supreme Court to
meet the ends of justice has frequently relied upon Article 142. However, exercise of
exceptional powers conferred under Article 142 has of late met with some criticism with the
courts today more frequently resorting to use of Article 142 than ever before. Critics thus
demand that the Supreme Court should clearly state the extent and scope of its powers under
Article 142 thereby defining its limits within which the Supreme Court may opt to exercise
its power12.

The Supreme Court in the exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any cause or matter pending before it, and
any decree so passed or order so made shall be enforceable throughout the territory of India
in such manner as may be prescribed by or under any law made by Parliament and, until
provision in that behalf is so made, in such manner as the President may by order1
prescribe13.

9 Article 136 of constitution of india

10 Enforcement of decrees and orders of Supreme Court and orders as to discovery

11 The Court while comparing Article 136 with Article 142 has held in Zahira
Habibullah Sheikh v. State of Gujarat, (2004) 5 SCC 353 (SCC at p. 360, para 10)

12This demand becomes all the more pertinent in the light of Supreme Court's
judgment in DDA v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622

13 http://www.lawnotes.in/Article_142_of_Constitution_of_India#ixzz3nngYotXL

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 The SLP was dismissed by the supreme court, by majority, holding that the
appellants SLP could not be lisited for hearing unless he surrender under Art. 142 (as per the
judgement of HC).

Answer to issue 2
Though Art. 161 does not make any reference to Art. 72 of the Constitution, the power of the
Governor of a State to grant pardon etc. to some extent overlaps the same power of the
President, particularly in the case of a sentence of death. Articles 72 and 161 are in very
general terms. It is, therefore, argued that they are not subject to any limitations and the
respective area of exercise of power under these two Articles is indicated separately in respect
of the President and of the Governor of a State. It is further argued that the exercise of power
under these two Articles is not fettered by the provisions of Arts. 142 and 145 of the,
Constitution or by any other law.
" In exercise of the powers conferred on me by Article 161 of the Constitution of India, 1,
Shri Prakasa, Governor of Bombay, am Pleased hereby to suspend the sentence passed by the
High Court of Bombay on Commander K. M. Nanavati in Sessions Case go. 22 of IVth
Sessions of 1959 until the appeal intended to be filed by him in the Supreme Court against his
conviction and sentence is disposed of and subject meanwhile to the conditions that he shall
be detained in the Naval Jail Custody.
The appellant has made SLP and an application of pardoning power to the governor. The
governor reduced his sentence. The SC held that SLP and pardoning power cannot operate
together both are different. If SLP is filed then the power of governor in such condition will
be ceased.

Further court held that the Art.142 and 161 are different in nature. The two Articles are
reconcilable and should be reconciled. The rule of statutory coexistence stated that it is
sometimes found that the 2 statute conflict14, as their objective are different and language of
each is restricted to its own object or subject, so they run parallel and never meet.

No rule of construction can require that when the words of a statute convey the clear meaning
, it shall be necessary to introduce another part of the statute which speak with less
perspicuity and of which the word may be capable of such construction as by possibility to
diminish the efficacy of the other provision of the Act.

Under Art. 142 unless the order of lower court doesnt follow SC may not entertain the SLP
and in Art. 145 court has all power to make the Law to give justice.

14 State Tax Notes, Vol. 57, p. 113, 2010 UNLV William S. Boyd School of Law Legal Studies Research Paper
No. 10-35

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Judgement
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 Ahuja15, entered his
bed-room unceremoniously with a loaded revolver in hand and in about a few seconds
thereafter came out with the revolver in has hand. 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 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 Puransingh16 and practically admitted the
same to his colleague Samuel. His description of the struggle in the bathroom is highly
artificial and is devoid of all necessary particulars. The injuries found on the body of the
deceased are consistent with the intentional shooting and the main injuries are wholly
inconsistent with accidental shooting when the victim and the assailant were in close grips.
The other circumstances brought out in the evidence also establish that there could not have
been any fight or struggle between the accused and the deceased.

The court held that the conduct of the accused clearly shows that the murder was a deliberate
and calculated one and the facts of the case do not attract the provisions of Exceptions 1 of
Sec 300 of IPC as the accused also failed to bring the case under General Exception of IPC
by adducing evidence. In the result, the conviction of the accused under section 302 of IPC
and sentenced him of imprisonment for life.

It was held by the court that the conduct of the accused clearly showed that the
murder committed by him was a deliberate one and the facts of the case do not attract
the provision of Exception I of section 300 of IPC as the accused by adducing
evidence failed to bring the case under General Exception Of IPC17 .

Therefore, as a result, the court convicted Nanavati under section 302 of IPC and
sentenced him of Imprisonment for Life.

Jury trial
15 Sethi, Atul (13 Feb 2011). "Ourchamberof". The Times Of India. Retrieved 30
May 2014.

16 Guard appointed by the victim

17 Sharma, Vijaya. "Defence Vs Prosecution (pg.1)". The Nanavati Case.

Retrieved 17 October 2005.

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The crux of the case was whether Nanavati shot Ahuja in the "heat of the moment" or
whether it was a premeditatedmurder. In the former scenario, Nanavati would be charged
under the Indianpenalcode for culpablehomicide, with a maximum punishment of 10 years.
This is because he could have invoked exceptions 1 and 4 of section 300 of IPC (which
defines murder). Exception 1 states:

"Culpable homicide is not murder if the offender, whilst deprived of the power of self-control
by grave and sudden provocation, causes the death of the person who gave the provocation or
causes the death of any other person by mistake or accident18."

Exception 4 states:

"Culpable homicide is not murder if it is committed without premeditation in a sudden fight

in the heat of passion upon a sudden quarrel and without the offender having taken undue
advantage or acted in a cruel or unusual manner.

Explanation - It is immaterial in such cases which party offers the provocation or commits the
first assault19."

In the latter scenario (i.e. premeditated murder), Nanavati would be charged with murder,
with the sentence being death or lifeimprisonment. Nanavati pleaded not guilty and his
defence team argued it as case of culpable homicide not amounting to murder, while the
prosecution argued it was premeditated murder.

The accused, K.M.Nanavati, was an upright, moral and patriotic person serving the country.
There were all the evidences that he had committed murder after being provoked and had no
economic benefits in it nor was he a career criminal. And he had willingly surrendered
himself afterwards to the police.

The Jury in India had only job and power to pronounce a person as `Guilty` or `Not Guilty`
under the charges. They could not indict any accused nor could punish the accused. The jury
in the GreaterBombay sessionscourt pronounced Nanavati as not guilty under section 302
under which Nanavati was charged, with an 81 verdict. Mr. Ratilal Bhaichand Mehta (the
sessions judge) considered the acquittal as perverse and referred the case to the highcourt.
The prosecution argued that the jury had been misled by the presiding judge on four crucial
points:

1. The onusofproving that it was an accident and not premeditated murder was on
Nanavati.

2. Was Sylvia's confession grave provocation for Nanavati? or any specific incident in
Ahuja's bedroom or both.

18 "K.M.Nanavativs.StateofMaharashtra". Retrieved 17 October 2005.

19 Intrpetation given by Bombay HC

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 3. The judge wrongly told the jury that the provocation can also come from a third
person.

4. The jury was not instructed that Nanavati's defence had to be proved, to the extent
that there isnoreasonabledoubt 20in the mind of a reasonableperson21.

The court accepted the arguments, dismissed the jury's verdict and the case was freshly heard
in the high court. Without any proper study comparing existing judicial systems and without
any effort to improve the system, it was claimed that jury had been influenced by media and
was open to being misled, the GovernmentofIndia abolished jury trials after this case. No
study was done to see whether Judges are more influenced by media or Jury is more likely to
be influenced.

Retrial
Defence version

In the BombayHighCourt, the defence put forth their version of the incident, for which there
were no witnesses other than the two men, and no evidence. Hearing Sylvia's confession, an
enraged Nanavati wanted to shoot himself, but was calmed down by Sylvia, who told him
that he is not to be blamed for this and there was no reason that he should shoot himself.
Since Sylvia did not tell him whether Prem intended to marry her, Nanavati sought to find it
out for himself. When Nanavati met Prem at the latter's bedroom, Prem had just come out of
the bath dressed only in a towel; an angry Nanavati swore at Prem and proceeded to ask him
if he intends to marry Sylvia and look after his children. Prem replied, "Will I marry every
woman I sleep with?", which further enraged Nanavati. Seeing Prem go for the gun, enclosed
in a brown packet, Nanavati too went for it and in the ensuing scuffle, Prem's hand caused the
gun to go off and instantly kill him.

Prosecution version

On the other hand the prosecution's version of the story and their counter-points against the
defence's version, was based on replies by witnesses and backed by evidence. The towel that
Ahuja was wearing was intact on his body and had neither loosened nor fallen off. In the case
of a scuffle, it is highly improbable that the towel would have stayed intact. After Sylvia's
confession, a calm and collected Nanavati dropped his family to the theatre, drove to his
naval base and according to the Navy log, had acquired a gun and rounds, under a false
pretext. This indicated that the provocation was neither grave nor sudden and that Nanavati
had the murder planned. Ahuja's servant Anjani testified that three shots were fired in quick

20 Sarthi V.P.Interpretation Of Statute Ed.5 P17

21 <a href="http://legal-dictionary.thefree
dictionary.com/Reasonable+man+theory">Reasonable Person</a>

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succession and the entire incident took under a minute to occur, thus ruling out a scuffle.
Nanavati walked out of Ahuja's residence, without explaining to his sister Mamie that it was
an accident. He then unloaded the gun, went to the Provost Marshall and again went to the
police to confess his crime, thus ruling out that he was dazed. The deputy commissioner of
police testified that Nanavati confessed that he had shot dead Ahuja and even corrected the
misspelling of his name in the police record.

The high court agreed with the prosecution's argument that the murder was premeditated and
sentenced Nanavati to life imprisonment for culpable homicide amounting to murder22. On 24
November 1961, the SupremeCourtofIndia upheld the conviction

Conclusion
In the present case, the question is limited to the exercise by the Governor of his powers
under Art. 161 of the Constitution suspending the sentence during the pendency of the special
leave petition and the appeal to this Court; and the controversy has narrowed down to
whether for the period when this Court is in seizin of the case the Governor could pass the
impugned order, having the effect of suspending the sentence during that period. There can be
no doubt that it is open to the Governor to grant a full pardon at any time even during the
pendency of the case in this Court in exercise of what is ordinarily called " mercy jurisdiction
". Such a pardon after the accused person has been convicted by' the Court has the effect of
completely absolving him from all Punishment or disqualification attaching to a conviction
for a criminal offence. That power is essentially vested in the head of the Executive, because
the judiciary has no such 'mercy jurisdiction'. But the suspension of the sentence for the
period when this Court is in seizin of the case could have been granted by this Court itself If
in respect of the same period the Governor also has power-to suspend the sentence, it would
mean that both the judiciary and the executive would be functioning in the same field at the
same time leading to the possibility of conflict of jurisdiction. Such a con- flict was not and
could not have been intended by the makers of the Constitution.

From this we can say the literal rule has been applied the court and just read the plain text of
the constitution which clearly used by the SC in this case. Only on the failure of literal rule
the other rules

of interpretation can be used. But the law is very clear and so there is no point of applying
any other rule. The decision of the Supreme Court is perfect according to me in this Case.
There is no issue that 2 remedy cannot be granted for one cause and same thing is laid down
here.

22 ^ "HonorKilling:No'crimeofpassion'". Archived from theoriginal on 22

October 2005. Retrieved 17 October 2005.

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Bibliography

Scc

AIR

Lexis Nexis

Manupatra

http://indiankanoon.org/doc/1323246/

Sarathi V.P. Interpretation of Statutes 5th Ed.

Basu Dd Shoter Constitution P 1084-86,89

Sarthi V.P.Interpretation Of Statute Ed.5 P17

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