Indian Law Review

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Escaping the causation conundrum: the case of

Govindaswamy v. State

Mrinal Satish

To cite this article: Mrinal Satish (2017) Escaping the causation conundrum: the case of
Govindaswamy v. State, Indian Law Review, 1:1, 87-94, DOI: 10.1080/24730580.2017.1357266

To link to this article: https://doi.org/10.1080/24730580.2017.1357266

Published online: 07 Aug 2017.

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INDIAN LAW REVIEW, 2017
VOL. 1, NO. 1, 87–94
https://doi.org/10.1080/24730580.2017.1357266

CASE NOTE

Escaping the causation conundrum: the case of

Govindaswamy v. State
Mrinal Satish
National Law University, Delhi, New Delhi, India

ABSTRACT ARTICLE HISTORY

In this case note, I critique the judgment of the Supreme Court of Received 15 March 2017
India in Govindaswamy v. State of Kerala, and the review petition – Accepted 17 July 2017
In Re Blog Published by Justice Markandey Katju in Facebook. I KEYWORDS
argue that the Supreme Court lost an opportunity to develop Causation;
Indian law relating to causation and intervention by victims. I Govindaswamy; Katju;
analyse tests for causation in the common law, and the law escape; self-preservation;
governing situations where victims are killed in escaping from homicide
violent attacks. I make a case for why the Court erred in not
holding the defendant guilty of homicide.

Soumya, a 23-year-old woman, was travelling on a train from Ernakulam to Shornur on

1 February 2011. The reason for the trip was a happy one – she was headed for her betrothal
ceremony. By the time the train neared the destination, Soumya was the only person left in the
ladies coach of the train. The prosecution alleged that as the train pulled out of the Vallathol
Nagar railway station, the stop before Shornur, the defendant Govindaswamy boarded the
ladies coach and attacked Soumya. He repeatedly hit her head against the wall of the coach,
and then either dropped or pushed her out of the moving train. Soumya fell onto the tracks, at a
point where multiple tracks intersected (“crossover”), and was seriously injured.
Govindaswamy too jumped off the train, moved Soumya off the tracks, and raped her. The
prosecution examined two men who had witnessed the attack from an adjoining coach of the
train. These two men testified that they contemplated pulling the emergency alarm chain to
stop the train. However, another co-passenger, a middle-aged man, told them that the woman
had jumped out of the train and had escaped. Hence, they did not act immediately. They only
informed the guard of the train when it reached Shornur around 10 minutes later. A search
ensued, and Soumya was found near the railway track in a badly injured state. She was
admitted to the local hospital, where she succumbed to her injuries five days later.
The autopsy indicated that the victim had 24 ante-mortem injuries on her body. Two
were considered important. The first injury, according to the doctor, appeared to have
been caused by the victim’s head being “forcefully hit to (sic) backward and forward
against a flat hard surface”,2 like the wall of a railway coach. The doctor noted that this
injury would leave the victim dazed, but not render her unconscious. The second injury

CONTACT Mrinal Satish mrinal.satish@nludelhi.ac.in National Law University, Delhi, Sector 14, Dwarka, New
Delhi 110078, India
1
Govindaswamy v State of Kerala [2016] SCC OnLine SC 939.
2
Ibid [7].
© 2017 Informa UK Limited, trading as Taylor & Francis Group
88 M. SATISH

was “from beneath the left eye upto the chin bone”.3 There were fractures to both the
maxilla and the mandible, 13 teeth had been severed, and the left cheek bone had been
“pulverized”. In the doctor’s opinion, these injuries could have been caused by the
victim falling face-first on the crossover tracks. Further, since the victim’s elbows,
wrists, and the inner borders of her forearms had no injuries resulting from a fall,
the doctor opined that the victim had not moved her hands forward to cushion the fall.
This implied that she was in a dazed state, and her reflexes were absent. The medical
evidence thus supported the theory that the victim had been pushed off the train, or had
fallen, while in a dazed state. The doctor further opined that death had been caused due
to injuries sustained to the head because of “blunt impact” and from the fall. There was
aspiration of blood into the air passages. The doctor testified that aspiration could have
been “due to the victim being kept in a supine position, probably for sexual intercourse,
which may have resulted in anoxic brain damage”. Medical evidence also indicated
recent sexual intercourse.
The trial court convicted Govindaswamy of murder (Indian Penal Code 1860, s 302)
and rape (Indian Penal Code 1860, s 376(1)), and sentenced him to death for murder.
The High Court upheld the conviction and sentence. The Supreme Court, however,
took a different view. It upheld the conviction for rape, but overturned the conviction
and sentence for murder. The Court ruled that the prosecution needed to prove the
injuries resulting from the victim falling on the track were caused by the defendant
pushing the victim out of the train, and not the victim jumping out of the train. If she
had jumped out, the defendant would no longer be liable for the injuries. The Court
relied on the testimony of the two witnesses, who had stated that they had not pulled
the emergency chain since a “middle-aged man” had told them that the victim had
jumped off the moving train. The Court ruled that since it has not been proved beyond
reasonable doubt that the defendant had pushed the victim off the train, he could not be
held responsible for the injuries sustained by the victim as a result of the fall.4 The
Court reasoned that if the victim had jumped off the train herself, the defendant would
not be liable.5 The Court did not rely on any legal principle or precedent for so
concluding. Thereafter, the Court relied on medical evidence to conclude that the
victim’s death had been caused due to aspiration of blood into her “air passage”,
consequent to her being kept in a “supine position” for committing a sexual act. The
Court ruled that intention to cause death or a bodily injury, or even knowledge that the
act was likely to cause death could not be attributed to the defendant. It reasoned that
the intention of the defendant to keep the victim in a “supine position” was to have
sexual intercourse, and not to cause death. The Court further held that since the victim
had survived for a few days, it was clear that the defendant did not have the intention to
cause her death.6 A review petition was filed by the State of Kerala and by the mother of
the victim. The Court also took suo moto notice of a Facebook post by Justice
Markandeya Katju, former Judge of the Supreme Court of India, where Justice Katju
had strongly criticised the judgment. Hence, the Court got a second opportunity in In

3
Ibid.
4
Ibid. [15].
5
Ibid [15].
6
Ibid [16].
 INDIAN LAW REVIEW 89

Re Blog Published by Justice Markandey Katju in Facebook,7 to correct errors in

Govindaswamy. However, the Court held that its reasoning and conclusions in
Govindaswamy were right, and there was no ground to interfere with the judgment.
The Supreme Court’s judgment is problematic and questionable for various reasons.
First, it’s ruling on the question of intention and knowledge required for homicide
under Sections 299 and 300 of the Indian Penal Code 1860 (IPC) is contrary to
established precedents on the issue.8 Second, the Court relied on the evidence of a
“middle aged man”, who could not be traced and did not testify before the Court. This
was arguably hearsay evidence.9 Thirdly, the Court ignored questions of causation and
consequently erred when deciding whether the defendant was liable for the victim’s
death. In this comment, I focus on causation. I argue that the defendant’s liability for
the victim’s death is not extinguished if she jumped, or accidentally fell off the train in
the process of fending off the attack by the defendant.

Victim escape cases and rules of causation

Causation analysis involves a two-step processes. The first issue to be determined is
whether the actions of the defendant led to the consequence that followed.10 The
simplest articulation of the principle of factual causation is provided by the “but for”
or the sine qua non principle.11 In homicide, the question is – would death have
occurred but for the defendant’s acts.12 The second step in the process is to establish
legal causation. Legal causation is governed by legal principles,13 based on which the
criminal responsibility of the defendant is determined. The Supreme Court erred in
Govindaswamy by conflating “factual” and “legal” causation. It assumed that if the acts
of the defendant lead to a consequence, he will also be criminally responsible for that
consequence.
7
[2016] SCC OnLine SC 1259. Hereinafter referred to as: In Re Blog.
8
See Virsa Singh v State of Punjab, AIR [1958] SC 465; State of Andhra Pradesh v Rayavarpu Punnayya [1976] 4 SCC 382;
Jai Prakash v State (Delhi Administration) [1991] 2 SCC 32.
9
In Re Blog (n 7) [5–6].
10
Eric Colvin, ‘Causation in Criminal Law’ (1989) 1 BLR 253, 254; John E Stannard, ‘Criminal Causation and the Careless
Doctor’ (1992) 55 MLR 577, 579.
11
AP Simester and others, Simester and Sullivan’s Criminal Law: Theory and Doctrine (5th edn, Hart Publishing 2013) 83;
Stanley Yeo, Neil Morgan and Chan Wing Cheong, Criminal Law in Malaysia and Singapore (2nd edn, Lexis Nexis 2012)
116.
12
John E Stannard, ‘Criminal Causation and the Careless Doctor’ (1992) 55 MLR 577, 579.
13
First, the contribution of the defendant should be more than trivial; second, the defendant’s causal role must also be
salient [Hart and Honore provide the example of handing a child a loaded gun being proscribed as a negligent act.
The law proscribes such act considering the danger of the child accidentally shooting itself. If the child injures itself
by dropping the loaded gun on its foot, the injury to the foot is not relevant to the offence as defined. The reason
why the defendant is at fault is not an important or relevant factor in relation to the injury that the child sustains.
See: HLA Hart and Tony Honoré, Causation in the Law (Reprint, 2nd edn, Oxford University
Press 2002) lxiii]; third, in case where there are multiple causes operating, the defendant will be liable if at the time of the-
consequence ensuing (death in case of homicide), the defendant’s acts continue to be a “significant and operating cause”.-
See: Simester and others (n 11) 86–87; Stannard (n 12) 579; R v Smith [1959] 2 QB 35. The Indian Penal Code in
Explanations 1 and 2 to Section 299, states two principles governing causation in homicide – first, that a person who
causes bodily injury to another person, labouring under a disorder, disease or bodily infirmity and accelerates his/her
death will be liable for causing death; second, if death is caused by a bodily injury, the person who causes such injury
will be liable for causing death, although death could have been prevented by “resorting to skilful remedies and
proper treatment”. The Code reflects common law rules on causation at the time of its drafting.
90 M. SATISH

Although causation is an essential element in all crimes, it is only in rare cases that
questions of causation are in dispute.14 One such case is where multiple causes lead to
the eventual result.15 The role of each actor/event becomes relevant in such a case.16
Interventions by third parties, by natural events, or by the victim herself raise questions
as to whether the intervention breaks the causal chain initiated by the defendant.17 In
Govindaswamy, the Court ruled that unless the prosecution proves that the defendant
had pushed the victim off the train, he would not be responsible for the injuries she
sustained from the fall. Thereby, it implied that the victim jumping off the train, or
falling off accidentally would break the chain of causation. While arriving at this
conclusion, the Court failed to take note of the law with respect to interventions by
victims, which I discuss in the following.

Interventions by victims
In common law, the general rule that governs interventions by victims is that the
defendant will be liable for the consequences that ensue due to her intervention if two
conditions are fulfilled – first, that the victim’s conduct is a reaction to the acts of the
defendant, and secondly, the victim’s reaction was reasonably foreseeable.18 This test
was formulated by the Court of Appeal (Criminal Division) in R v.Roberts.19 The Court
also ruled that the test was “objective”, in the sense that “reasonable foreseeability”
should be assessed from the perspective of a “reasonable man”, and not the defendant
in question.20 Hence, unless the victim’s response is out of the ordinary, it will not
break the chain of causation initiated by the acts of the defendant.
In R v. Williams,21 the Court of Appeal articulated the test again, when it held that
the chain of causation does not break where the victim is killed while fleeing from
violence if two requirements are satisfied.22 First, the conduct of the deceased victim
must be foreseeable by a “reasonable and responsible man in the assailant’s shoes”.23
Secondly, the unlawful act by the defendant “must be such that all sober and reasonable
people would inevitably recognise must subject the other person to some harm resulting
therefrom, albeit not serious harm”.24 The Court noted that the nature of the threat was
an important consideration in assessing the foreseeability of the harm to the victim, as
well as the conduct of the deceased victim.25
The Australian High Court laid down tests relating to victim intervention in Royall v. R.26
The facts of Royall are somewhat similar to Govindaswamy. The victim was killed when she
fell from the window of the bathroom of a sixth-floor apartment that she shared with the
14
See: Stannard (n 12) 577; R v David Keith Pagett [1983] 76 CAR 279, 288; Brenda Midson, ‘Teaching Causation in
Criminal Law: Learning to Think Like Policy Analysts’ (2010) 20 LER 109, 111.
15
Colvin (n 10) 255.
16
See for instance: R v Kirikiri [1982] 2 NZLR 648; Stephenson v State 205 Ind. 141.
17
See: Simester and others (n 11) 86–103.
18
Ibid 101.
19
[1971] 56 CAR 95, 102.
20
Ibid.
21
[1992] 1 WLR 380.
22
Ibid 388.
23
Ibid.
24
Ibid.
25
Ibid 389.
26
[1991] HCA 27.
 INDIAN LAW REVIEW 91

defendant. The defendant had been violent towards the deceased in the days preceding the
incident. He admitted that on the day of the victim’s death, there had been a violent argument
between the two of them. He punched the victim in her face, pulled her hair and shook her.
Blood was found in various parts of the apartment, including the bathroom. There was also
evidence of forced entry into the bathroom, and of a struggle there. The jury had to determine
whether the victim had jumped, fallen off, or had been pushed out of the window by the
defendant. In the first two scenarios, the question was whether the acts of the victim in self-
preservation break the chain of causation between the violence and the victim’s death. The
trial judge, in directing the jury, had stated that the causal link does not break if the victim has
a “well-founded and reasonable apprehension” of life-threatening violence, and had jumped
out of the window to escape from such violence.27 The case was appealed to the High Court
on grounds of misdirection, which the Court dismissed. Five sets of judgments were authored
by the seven judges on the Court, all of whom advocated different tests governing causation in
flight cases.
Four tests were suggested in Royall to determine the liability of the defendant.28 First, the
reasonable act test; second, the well-founded apprehension test; third, the natural conse-
quence test; and fourth, the foresight test.29 Although the majority in Royall used the “natural
consequence test”30 in arriving at its decision, Yeo argues that “foresight” test should be
applied in cases of escape/fright.31 The foresight test posits that the defendant’s liability will
continue if he could have reasonably foreseen that the victim would act in the manner in
which she did in order to avoid the acts of the defendant. Thus, the focus is solely on the
defendant, and it can be assessed either through the perspective of the defendant (subjective
test) or from the perspective of a reasonable third person (objective test).32
In their authoritative treatise on causation, Hart and Honoré argue that the deter-
mination of whether the victim’s acts breaks the chain of causation should be made
based on the voluntariness of such acts.33 They argue that if the victim’s acts are fully
voluntary, the chain will break; if involuntary, the defendant will continue to be
responsible.34 A related argument is that voluntary acts do not break the chain of
causation in certain situations – where there is an element of involuntariness intrinsic
in the voluntary act. The lack of choice makes the perceived voluntary act,
involuntary.35 Suicide after an attack and escape from violent crimes are examples of
such a situation.36 In escapes from violent crimes, self-preservation is said to negate the
voluntariness of the victim’s actions.37

27
Ibid [18].
28
Stanley Yeo, ‘An Australian Evaluation of Causation in Fright Cases’ (1993) 57 JCL 390, 391.
29
Ibid. For a critique of the tests developed by the High Court in Royall, see: Stephen Shute, ‘Causation: Forseeability v
Natural Consequences’ (1992) 55 MLR 584, 586.
30
The natural consequence test was articulated by Chief Justice Mason as follows: “[W]here the conduct of the accused
induces in the victim a well-founded apprehension of physical harm such as to make it a natural consequence (or
reasonable) that the victim would seek to escape and the victim is injured in the course of escaping, the injury is
caused by the accused’s conduct”. Royall v R [1991] HCA 27 [21].
31
Yeo (n 28) 397.
32
Ibid 395–397.
33
HLA Hart and Tony Honoré, Causation in the Law (Reprint, 2nd edn, Oxford University Press 2002) 329.
34
Ibid 329–330.
35
Rebecca Williams, ‘Policy and Principle in Drugs Manslaughter Cases’ (2005) 64 CLJ 66, 70.
36
Lawrence Crocker, ‘A Retributive Theory of Criminal Causation’ (1994) 5 JCLI 65, 85–89; Timothy H Jones, ‘Causation,
Homicide and the Supply of Drugs’ (2006) 26 LS 139, 142.
37
See Alan Norrie, ‘A Critique of Criminal Causation’ (1991) 54 MLR 685, 694.
92 M. SATISH

As noted earlier, in assessing foreseeability of the victim’s response, the reason-

ableness of the response becomes a relevant factor. Whether the actions of the victim
are reasonable is a tricky issue when escape is from possible rape. Crocker argues that
when women are socialised into believing that they should risk their lives or limbs to
avoid rape, disproportionate reactions are inevitable.38 He argues that when a man
attempts rape, he should know that a “hysterical” or disproportionate response is a
possibility. Consequently, the man should be held liable for consequences that ensue,
including death.39 The same argument may be made in the Indian context. The
Supreme Court of India has regularly noted that rape leads to “deathless shame,”40
and impacts the honour41and “value,”42 of a woman. Although one may criticize and
frown at such stereotyping,43 and suggest reforms to the law,44 it is but natural that
such rulings and beliefs influence, and possibly reflect societal perceptions. In such a
context, a man attempting rape should know that the woman may take perceived
unreasonable and disproportionate steps to escape rape.

The Indian approach in escape cases

Yeo, Morgan and Wing Cheong note how the framers of the Indian Penal Code decided
against prescribing rules of causation in the Code. They left it to courts to develop these
principles.45 However, courts in India, as well as in other jurisdictions that adopted the
Code have failed to develop such principles.46
Basappa v. State 47 is a rare example of a case where an Indian court articulated
principles of causation in its decision-making. Basappa involved an “escape” scenario.
The victim was on the roof of a house, when the four defendants attacked him with
dangerous weapons. After they had inflicted injuries on his neck, the victim jumped
from the roof – a height of 12 feet – to escape the attack. He fell to the ground and was
rendered unconscious. Thereafter, the defendants threw him into a haystack which was
on fire. Since the body was completely charred, the autopsy could not indicate whether
death had been caused due to the weapon injuries, the injuries sustained due to the fall,
or whether the victim had been burnt to death. The question was whether the defen-
dants would continue to be responsible for the victim’s death if he had died because of
injuries sustained due to the fall. The court ruled that in light of the situation that the
victim was in, he had the option of either being “hacked to death” or attempting to
escape by jumping off the roof. He had chosen the latter, and his actions, the court
ruled, were a “direct result” of the actions of the defendant – “a normal and necessary
38
Crocker (n 36) 90.
39
Ibid.
40
Rafiq v State of Uttar Pradesh [1980] 4 SCC 262. For a discussion see: Mrinal Satish, Discretion, Discrimination and the
Rule of Law: Reforming Rape Sentencing in India (Cambridge University Press 2017) 44.
41
Bharwada Bhoginbhai Hirjibhai v State of Gujarat [1983] 3 SCC 217.
42
State of Uttar Pradesh v Chhoteylal [2011] (1) SCALE 454.
43
Mrinal Satish, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India (Cambridge University
Press 2017) 40–45.
44
The Justice Verma Committee on Amendments to Criminal Laws 2013.
45
Stanley Yeo, Neil Morgan and Chan Wing Cheong, Criminal Law in Malaysia and Singapore (2nd edn, Lexis Nexis 2012)
109–110.
46
Ibid.
47
AIR [1960] Mys 228.
 INDIAN LAW REVIEW 93

consequence of the acts of the [defendant]”.48 Yeo, Morgan and Wing-Cheong argue
that the court applied the “foreseeability test”49 in this case, since the “normal and
necessary consequence” test implies reasonable foreseeability.50
The Attorney General relied on Basappa in In Re Blog51 to argue that Govindaswamy’s
liability continued irrespective of whether the victim was pushed, jumped or fell off the
train. The Court however ruled that unlike in Basappa, where the intention to cause death
was clear from the actions of the defendant in Basappa, such intention was not clear in
Govindaswamy.52 Further, the Court held that Basappa does not have “any application to
the facts” of Govindaswamy, since “the role of the accused in causing injury … by pushing
the victim out of [the] train is not free from doubt”.53 The Supreme Court unfortunately did
not analyse whether any of the tests of causation and victim intervention/escape apply in
Govindaswamy. The focus remained on whether the victim was intentionally pushed off the
train or whether she jumped off it.
Another case cited by the Attorney General in In Re Blog, is Joginder Singh v. State of
Punjab.54 In this case, the two defendants attacked the deceased man and his family in
their house. Anticipating danger to his life and limbs, the victim ran out of the house,
and then jumped into a well, when the defendants were 15–20 feet behind him.55 The
victim hit his head against the wall of the well, lost consciousness, and drowned. The
Court absolved the defendant of the liability of the victim’s death, holding that death
was not homicidal. However, the Court ruled that if the victim had jumped into the well
since there was no other option before him, they may have held that defendant liable
for homicide.56 Thus, the Court recognised the “foreseeability” principles in escape
cases, and ruled that it did not apply in the case before it. In In Re Blog, the Supreme
Court merely quoted certain lines from the judgment in Joginder Singh, underlining
parts it deemed relevant.57 It completely ignored the line in the judgment where the
Court had articulated the principle in escape cases. The Supreme Court did not provide
any reasons as to why it deemed a set of lines to be important, while ignoring the line
where the principle was articulated. Further, in a curious case of legal analysis, the
Supreme Court noted that the Indian Evidence Act, 1872 does not have any provision
relating to presumption in cases of murder,58 like it does in relation to abetment of
suicide by a married woman.59 The Court thus implied that there are no statutory rules
or tests of causation that can be applied in cases such as Govindaswamy. Not only was
the Court wrong in reaching this conclusion,60 it also lost an opportunity to develop a
conceptual framework in “escape” cases. In the absence of statutory rules/law, courts in

48
Ibid 229.
49
Yeo, Morgan and Cheong (n 45) 128–29.
50
Ibid 129.
51
2016 SCC OnLine SC 1259.
52
2016 SCC OnLine SC 939.
53
In Re Blog (n 51) [8].
54
[1980] 1 SCC 493.
55
Ibid 497.
56
Ibid 498.
57
In Re Blog (n 51) [10].
58
Ibid.
59
Ibid [11].
60
The Indian Penal Code has provisions that provide tests of causation. Explanations 1 and 2 to Section 299, and Section 39 are
examples. See Yeo, Morgan and Cheong (n 45) 110–11. For a discussion on principles of causation, see [13].
94 M. SATISH

Australia,61 and Canada,62 amongst others have developed principles relating to causa-
tion. The articulation of principles by the Court would not only have been a welcome
development in Indian criminal law, but would also have contributed to criminal
jurisprudence in all jurisdictions which use versions of the Indian Penal Code.

Conclusion
If the Court applied the law relating to victim intervention and escape, what would the
possible conclusion have been? If either the “natural consequence” test or the “foresee-
ability” test were to be applied, Govindaswamy would be liable for Soumya’s death. His
conduct left Soumya with a well-founded apprehension of physical harm. Her jumping off
the train (if we were to believe the “middle-aged” man) to escape the attack was a natural
consequence of the defendant’s acts. Consequently, Govindaswamy would be liable for
causing Soumya’s death, which resulted in the injuries that she incurred while escaping. If
the “foreseeability” test is applied (either subjective or objective), the conclusion is that the
victim’s acts were foreseeable. The brutal violence that Govindaswamy unleashed on her,
and his attempt to rape her, left the victim with little option but to try and escape. The test
laid down in Basappa – “normal and necessary consequence” also leads to the same result –
that the attempt to escape was justified. Hence, the Court erred in finding that the
defendant was not liable for homicide, but only for rape. In avoiding the causation
conundrum and “escaping” the responsibility of laying down tests of causation, the
Court unfortunately arrived at an erroneous conclusion.

Acknowledgment
I thank Keerthana Medarametla for the excellent research assistance that she provided me for
writing this piece.

Disclosure statement
No potential conflict of interest was reported by the author.

61
Royall v R [1991] HCA 27.
62
Stanley Yeo, ‘Causation in Civil and Criminal Negligence’ (2007) 25 SLR 108, 120–22. Yeo notes how the Canadian
Criminal Code is similar to the Penal Code of Singapore (and the Indian Penal Code), since it does not contain
principles of causation. Canadian Courts however have developed principles of causation for criminal cases.