Govindaswamy v. State of Kerala

It has been an interesting week. On one hand critics and moviegoers alike have been heaping praise on Pink, dubbed the first film to raise the issues of female sexual autonomy and choice in post-1991 India. On the other, the Supreme Court set aside the conviction for murder under Section 302 IPC and the attendant death sentence in Govindaswamy v. State of Kerala [made infamous by the deceased victim’s name, which this comment desists from using]. I argue here the decision is a brave one. But as much as my biases make me support it, its reasoning is not beyond reasonable doubt.

There is little to gain by recounting but the most essential facts. An adult woman was found lying grievously hurt near train tracks near Shornur, Kerala, on the night of 1st February, 2011. She was found at the insistence of two people who believed they saw her falling from the train, convinced the fellow passenger travelling with them was wrong in saying that she had willingly jumped and fled. Her condition when they found her convinced the witnesses that she had been attacked by the suspicious one-handed man lurking about the compartment. Subsequent medical treatment proved insufficient, and the victim succumbed to her injuries on 6th February. 

The Fast Track Court convicted the accused of Murder (Section 302 IPC), Rape (Section 376 IPC) and other offences. The death sentence was recommended which the High Court confirmed. As we know, the Supreme Court altered only one aspect of the decision – the conviction and sentence for Murder. What does a conviction for murder require, then, that the Supreme Court found the ingredients lacking? Section 300 IPC defines murder (punished by Section 302 IPC). Broadly, it explains that a Culpable Homicide (defined in Section 299 IPC) can amount to Murder in certain cases, where:

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

The first three categories require an intention, while the last can be satisfied with knowledge. To prove I intended on doing something is more onerous than proving that I knew something will happen i.e. I had foresight of the consequences of my actions. This is justified. It should not be easy to label someone as a murderer and inflict upon them the harshest sanctions of life imprisonment or death. There is a slight relaxation in the third clause – I intend the injury and not the consequence of death but a conviction is possible as long as the injury is sufficient in the ordinary course of nature to cause death. The Trial Court and High Court decisions suggest this was how the case for Murder was made out. There was no direct evidence to show that the Accused caused the injuries, though, but both courts found the circumstances clinching. 

Proving a case on circumstantial evidence is tricky business. A testifying to seeing X killing Y with a knife is quite different from A testifying to seeing X with a knife 500 meters from where Y was found dead, and then convicting X for murder. Courts acknowledge this and there is a long line of decisions holding that a conviction on circumstantial evidence can only stand if the ‘chain of circumstances’ does not allow for any other conclusion other than guilt. Let’s take this case. The Supreme Court culls out three sets of injuries suffered by the victim. The first was injuries inflicted inside the train, the second those suffered from the fall on the railway tracks, and the third was the injuries associated with the sexual assault. The medical evidence was clear that a combination of the injuries suffered from the fall on the tracks with the subsequent sexual assault is what caused death. 

So the question, then, was whether the chain of circumstances only allowed for one conclusion here: that the accused intentionally inflicted injuries which were sufficient in the ordinary course to cause death. The three judges unanimously held it was not so. There was doubt whether the accused pushed the victim off the train or she fell herself. Therefore, it was also doubtful whether he intended the injuries resulting from the fall at all. Notice how the Supreme Court framed the issue: “However, so far as Injury No. 2 is concerned, unless the fall from the train can be ascribed to the accused on the basis of the cogent and reliable evidence, meaning thereby, that the accused had pushed the deceased out of the train and the possibility of the deceased herself jumping out of train is ruled out, the liability of the accused for the said injury may not necessarily follow.” The State argued the effects of the first injury could be seen as causing the victim to fall from the train, connecting the injuries to the accused. But the Supreme Court expressed reservations about this being the only conclusion, since a passenger near the compartment door said the victim had “made good her escape” by jumping.

Two related complaints can arise from this reasoning. First, when the medical evidence conflicted the escape theory (it could not be said the victim ‘made good her escape’), why give precedence to unverified oral testimony? Second, did it really matter whether the accused pushed the victim or she fell herself? The injuries to her head from the fall, as per medical evidence, were caused because the victim was dazed and had dulled reflexes owing to earlier injuries (not doubted as being caused by the accused). That being so, could the latter injuries from the fall not be considered as being caused by the initial attack by the accused? There is nothing to negative this causal connection on the facts. Of course the law does not allow X to walk away innocent by simply desisting from delivering the blow and causing Y to harm herself instead. But can we say that X intended those injuries or that X merely knew they are foreseeable? That, is the question.

I called this a brave decision because the Court could easily have maintained the conviction and reduced the sentence if it had doubts. Such a compromise might have been seen more appropriately in some quarters. But the Court went a step further. In doing so, it displayed a commitment to procedural rules not always easy in the face of ghastly facts. Judges are only human after all, and the perceived harshness of courts in sexual assault cases does display a tendency of playing to the pulpit, with the Supreme Court no exception. Nonetheless, the issues have not been thoroughly considered. Kerala has made a statement that it plans to file a Review Petition challenging the decision. As this comment argues, there may be enough material to warrant one.

[Thanks to Sonali Malik for her inputs]

Cheating in the IPC - Interesting Overlaps

Section 420 of the Indian Penal Code, 1860 [IPC] is perhaps one of the most famous provisions in the Code, right up there with Section 302 IPC. In this short post, I discuss an interesting point of overlap between Sections 415 IPC and 417 IPC, and their more famous cousin Section 420 IPC. 

Reading the Text 

Section 415 IPC defines cheating and deals with a variety of acts and omissions, which should be clear below:

A. Whoever, by deceiving any person, 

A.1 Fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or

A.2 Intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and

A.2.1 Which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property

Is said to cheat

The fulcrum is deception - everything else flows from that. Deceiving is the conduct required of the Accused. This conduct must result in either of the two sets of consequences in A.1 and A.2. A.1: an unlawful transfer/retention of property caused through deception. A.2: doing/not doing a thing which is done because of the deception and causes/is likely to cause harm or damage. These consequences have different mens rea terms associated with them. The Accused must fraudulently or dishonestly induce the transfer of property [Fraudulently is defined in Section 25 IPC and Dishonestly is defined in Section 24 IPC]. Or, the Accused must intentionally induce the doing/not doing of a thing. If the conduct and consequences are brought about with the required mental element, a person is said to cheat.

Cheating is punished in Section 417 IPC, which simply states "whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both". A slightly different form of cheating is punished by Section 420 IPC, which states:

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 

Whoever cheats invokes the definition under Section 415 IPC. The provision then requires the person cheating (X) to dishonestly induce the person deceived to delivery any property to any person. The difficulty should be apparent here. The first part of the definition in Section 415 IPC itself provided that cheating can occur in situations where X deceives Y and dishonestly induces Y to deliver any property to any person. Effectively, then, the first part of Section 420 IPC reads Whoever cheats, and thereby cheats, before moving to the bit about making, destroying or altering valuable securities. This oddity remains merely an interesting drafting problem when viewed independently. But recall that Section 417 IPC punished cheating in all its hues, and looks more benign when compared with Section 420 IPC. 417 is non-cognizable (no arrest without warrant), bailable (bail as a matter of right), and inflicts imprisonment up to one year. Section 420 IPC is cognizable (arrest without warrant), non-bailable (no right to bail), and allows for imprisonment up to seven years. 

Cheating through History

So how do we resolve this? One step would be to see if this was discussed by the drafters of the Code. Looking at Lord Macaulay's 1838 Bill we find cheating offences were present very differently. Section 394 of the Bill punished 'cheating', Section 392 defined cheating as follows:

Whoever, by intentionally deceiving any person, fraudulently induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or to affix a seal to any substance, or to make, alter, destroy the whole or any part of a document which is, or purports to be, a valuable security, is said to "cheat" 

There was no Section 420 IPC equivalent. In fact, the comments contain an interesting discussion on how the framers actively decided not to render all kinds of deceptions criminal for that would that defeat the rule of criminal law being the last resort and make the penal code a law to enforce morals. This attitude changed in 1860 as can be seen with the addition of the second kind of consequences (described as A.2 in the discussion above). Section 420 IPC was also added to the mix, and a nearly contemporaneous commentary to the promulgation of the Code states that "increased punishment may be awarded where the cheating causes any property to be delivered 'dishonestly', that is where the it is of the kind which the first clause of the definition in Section 415 describes ..."  [Morgan & Macpherson, The Indian Penal Code 1860, p. 378 (1863)]. 

So, the scheme possibly intended was to demarcate the two sets of consequences into two punishing provisions. Assuming this is the case, then I argue the drafting of Section 420 IPC leaves one wanting for clarity. The provision confuses in trying to club the consequences of delivering property, and making, altering or destroying valuable securities.   

Conclusion

Since the IPC came in 1860, there have been a few decisions by High Courts considering the issue that is the subject of this post. Most of them concur with what appears to have been the legislative intent - Section 420 IPC punishes cases where deception results in the dishonestly inducing a person to deliver property, while Section 417 IPC punishes other forms of cheating not accompanied by delivery of property [See e.g. Supdt & Legal Remembrancer v. Manmatha Bhushan Chatterjee, AIR 1924 Cal 495; Shree Krishna Polyster v. State (GNCT of Delhi), Crl. M.C. 779/2005 decided on 23.10.2007]. It would have been a more elegant solution for the Code to include the consequence pertaining to valuable securities in the definition in Section 415 IPC itself, and then have the different punishment clauses. An amendment to that effect would help rid the confusion existing to this day.