Full Judgment Text
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CASE NO.:
Appeal (crl.) 1313 of 2006
PETITIONER:
Bapu @ Gajraj Singh
RESPONDENT:
State of Rajasthan
DATE OF JUDGMENT: 04/06/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of a Division
Bench of the Rajasthan High Court at Jodhpur dismissing the
appeal filed by the appellant who was convicted for offence
punishable under Section 302 of the Indian Penal Code, 1860
(in short the ’IPC’) and was sentenced to undergo rigorous
imprisonment for life and to pay a fine of Rs.500/- with
default stipulation. The order of conviction was recorded by
learned Special Judge SC/ST, (Prevention of Atrocities) and
Additional Sessions Judge, Partap Garh, Rajasthan.
2. Prosecution version as unfolded during trial is as follows:
On 26.8.1995 at about 8 a.m. Mithu Singh (PW1) heard
the scream that "run run he will kill her". On hearing the
scream he rushed towards the house of appellant where Smt.
Bhanwar Kanwar, Smt. Nand Kanwar, Smt. Jagdish Kanwar
and Smt. Mohan Kanwar were shouting loudly. Smt. Phool
Kanwar told him that the accused is beating his wife. It was
found by the informant on looking inside from the roof top
that the accused was carrying a sickle in one hand and the
chopped head of Smt. Govind Kanwar (hereinafter referred to
as the ’deceased’) in other hand. The sickle was blood stained
and the blood was flowing on the floor from the body. Number
of other persons including Ram Singh and Chain Singh came
to the spot. Sohanlal and Udai Singh who belonged to the
police force also reached at the spot. Constable Udai Singh
climbed up to the roof and looked into the house. He also
found that the accused was standing in the house with the
chopped head of a lady in one hand and a blood stained sickle
in the other hand. With efforts made by the people present at
the spot, door was unbolted by the accused and he was
arrested by the police.
3. Information was lodged at Partap Garh police station at
about 8.30 p.m. After investigation charge sheet was filed. To
further prosecution version 15 witnesses were examined. The
learned trial Judge also examined the accused under Section
313 of the Code of Criminal Procedure, 1973 (in short the
’Cr.P.C.’). Five witnesses resiled from their statements made
during investigation. However, considering the evidence on
record the trial court found the evidence to be credible and
cogent and accordingly convicted and sentenced the accused-
Gajraj Singh. During trial a plea was taken that the accused
was of unsound mind and, therefore, entitled to protection
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under Section 84 IPC. Same was rejected by trial Court. The
High Court also found that the plea regarding applicability of
Section 84 IPC was not acceptable. It found that though some
of the witnesses stated about the accused suffering from
unsoundness of mind, the crucial question was whether at the
time of commission of offence the accused was incapable to
understand the nature of the act committed by him or suffered
from insanity and had to be given protection under Section 84
IPC. The High Court found that Section 84 IPC has correctly
been applied.
4. Learned counsel for the appellant with reference to the
evidence of some of the witnesses submitted that the police
officials themselves wanted protection from the Court being
disturbed by the violent behavior of the appellant. It was
submitted that grand father and the uncle of the accused
suffered from insanity and, therefore, the trial Court and the
High Court were not justified in refusing the protection under
Section 84 IPC.
5. Learned counsel for the respondent-State on the other
hand supported the judgment of conviction as recorded by the
trial Court and as upheld by the High Court. According to him
though there is material on record to show that the accused
appellant at some point of time suffered from unsoundness of
mind, that is not sufficient to bring in application of Section
84 IPC. Additionally, the application filed by the father of the
accused was after about one year of the incident.
6. We shall first deal with the question whether Section 84,
IPC has application to the facts of the case.
7. Section 84 lays down the legal test of responsibility in
cases of alleged unsoundness of mind. There, is no definition
of "unsoundness of mind" in the IPC. Courts have, however,
mainly treated this expression as equivalent to insanity. But
the term "insanity" itself has no precise definition. It is a term
used to describe varying degrees of mental disorder. So, every
person, who is mentally diseased, is not ipso facto exempted
from criminal responsibility. A distinction is to be made
between legal insanity and medical insanity. A Court is
concerned with legal insanity, and not with medical insanity.
The burden of proof rests on an accused to prove his insanity,
which arises by virtue of Section 105 of the Indian Evidence
Act, 1972 (in short the ’Evidence Act’) and is not so onerous as
that upon the prosecution to prove that the accused
committed the act with which he is charged. The burden on
the accused is no higher than that resting upon a plaintiff or a
defendant in a civil proceeding. (See Dahyabhai v. State of
Gujarat AIR 1964 SC 1563). In dealing with cases involving a
defence of insanity, distinction must be made between cases,
in which insanity is more or less proved and the question is
only as to the degree of irresponsibility, and cases, in which
insanity is sought to be proved in respect of a person, who for
all intents and purposes, appears sane. In all cases, where
previous insanity is proved or admitted, certain considerations
have to be borne in mind. Mayne summarises them as follows:
"Whether there was deliberation and
preparation for the act; whether it was done in
a manner which showed a desire to
concealment ; whether after the crime, the
offender showed consciousness of guilt and
made efforts to avoid detections whether, after
his arrest, he offered false excuses and made
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false statements. All facts of this sort are
material as bearing on the test, which
Bramwall, submitted to a jury in such a case :
’Would the prisoner have committed the act if
there had been a policeman at his elbow ? It is
to be remembered that these tests are good for
cases in which previous insanity is more or
less established. These tests are not always
reliable where there is, what Mayne calls,
"inferential insanity".
8. Under Section 84 IPC, a person is exonerated from
liability for doing an act on the ground of unsoundness of
mind if he, at the time of doing the act, is either incapable of
knowing (a) the nature of the act, or (b) that he is doing what
is either wrong or contrary to law. The accused is protected
not only when, on account of insanity, he was incapable of
knowing the nature of the act, but also when he did not know
either that the act was wrong or that it was contrary to law,
although he might know the nature of the act itself. He is,
however, not protected if he knew that what he was doing was
wrong, even if he did not know that it was contrary to law, and
also if he knew that what he was doing was contrary to law
even though he did not know that it was wrong. The onus of
proving unsoundness of mind is on the accused. But where
during the investigation previous history of insanity is
revealed, it is the duty of an honest investigator to subject the
accused to a medical examination and place that evidence
before the Court and if this is not done, it creates a serious
infirmity in the prosecution case and the benefit of doubt has
to be given to the accused. The onus, however, has to be
discharged by producing evidence as to the conduct of the
accused shortly prior to the offence and his conduct at the
time or immediately afterwards, also by evidence of his mental
condition and other relevant factors. Every person is presumed
to know the natural consequences of his act. Similarly every
person is also presumed to know the law. The prosecution has
not to establish these facts.
9. There are four kinds of persons who may be said to be
non compos mentis (not of sound mind), i.e., (1) an idiot; (2)
one made non compos by illness (3) a lunatic or a mad man
and (4.) one who is drunk. An idiot is one who is of non-sane
memory from his birth, by a perpetual infirmity, without lucid
intervals; and those are said to be idiots who cannot count
twenty, or tell the days of the week, or who do not know their
fathers or mothers, or the like, (See Archbold’s Criminal
Pleadings, Evidence and Practice, 35th Edn. pp.31-32; Russell
on Crimes and Misdemeanors, 12th Edn. Vol., p.105; 1 Hala’s
Pleas of the Grown 34). A person made non compos men-us by
illness is excused in criminal cases from such acts as are-
committed while under the influence of his disorder, (See 1
Hale PC 30). A lunatic is one who is afflicted by mental
disorder only at certain periods and vicissitudes, having
intervals of reason, (See Russell, 12 Edn. Vol. 1, p. 103; Hale
PC 31). Madness is permanent. Lunacy and madness are
spoken of as acquired insanity, and idiocy as natural insanity.
10. Section 84 embodies the fundamental maxim of criminal
law, i.e., actus non reum facit nisi mens sit rea" (an act does
not constitute guilt unless done with a guilty intention). In
order to constitute an offence, the intent and act must concur;
but in the case of insane persons, no culpability is fastened on
them as they have no free will (furios is nulla voluntas est).
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11. The section itself provides that the benefit is available
only after it is proved that at the time of committing the act,
the accused was labouring under such a defect of reason, from
disease of the mind, as not to know the nature and quality of
the act he was doing, or that even if he did not know it, it was
either wrong or contrary to law then this section must be
applied. The crucial point of time for deciding whether the
benefit of this section should be given or not, is the material
time when the offence takes place. In coming to that
conclusion, the relevant circumstances are to be taken into
consideration, it would be dangerous to admit the: defence of
insanity upon arguments derived merely from the character of
the crime. It is only unsoundness of mind which naturally
impairs the cognitive faculties of the mind that can form a
ground of: exemption from criminal responsibility. Stephen in
’History of the Criminal Law of England, Vo. II, page 166 has
observed that if a persons cut off the head of a sleeping man
because it would be great fun to see him looking for it when he
woke up, would obviously be a case where the perpetrator of
the act would be incapable of knowing the physical effects of
his act. The law recognizes nothing but incapacity to realise
the nature of the act and presumes that where a man’s mind
or his faculties of ratiocination are sufficiently dim to
apprehend what he is doing, he must always be presumed to
intend the consequence of the action he takes. Mere absence
of motive for a crime, howsoever atrocious it may be, cannot in
the absence of plea and proof of legal insanity, bring the case
within this section This Court in Sherall Walli Mohammed v.
State of Maharashtra: (1972 Cr.LJ 1523 (SC)), held that the
mere fact that no motive has been proved why the accused
murdered his wife and child or the fact that he made no
attempt to run away when the door was broken open would
not indicate that he was insane or that he did not have
necessary mens rea for the offence. Mere abnormality of mind
or partial delusion, irresistible impulse or compulsive
behaviour of a psychopath affords no protection under Section
84 as the law contained in that section is still squarely based
on the outdated Naughton rules of 19th Century England. The
provisions of Section 84 are in substance the same as that laid
down in the answers of the Judges to the questions put to
them by the House of Lords, in M Naughton’s case. (1843) 4
St. Tr. (NS) 847. Behaviour, antecedent, attendant and
subsequent to the event, may be relevant in finding the mental
condition of the accused at the time of the event, but not that
remote in time. It is difficult to prove the precise state of the
offender’s mind at the time of the commission of the offence,
but some indication thereof is often furnished by the conduct
of the offender while committing it or immediately after the
commission of the offence. A lucid interval of an insane person
is not merely a cessation of the violent symptoms of the
disorder, but a restoration of the faculties of the mind
sufficiently to enable the person soundly to judge the act; but
the expression does not necessarily mean complete or prefect
restoration of the mental faculties to their original condition.
So, if there is such a restoration, the person concerned can do
the act with such reason, memory and judgment as to make it
a legal act ; but merely a cessation of the violent symptoms of
the disorder is not sufficient.
12. The standard to be applied is whether according to the
ordinary standard, adopted by reasonable men, the act was
right or wrong. The mere fact that an accused is conceited,
odd irascible and his brain is not quite all right, or that the
physical and mental ailments from which he suffered had
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rendered his intellect weak and had affected his emotions and
will, or that he had committed certain unusual acts, in the
past or that he was liable to recurring fits of insanity at short
intervals, or that he was subject to getting epileptic fits but
there was nothing abnormal in his behaviour, or that his
behaviour was queer, cannot be sufficient to attract the
application of this section.
13. Order of the trial Court shows that because of abnormal
behaviour appellant was under treatment. Mother of the
appellant (PW-8) stated that appellant had remained mentally
fit for about four years after treatment. During trial also
pursuant to Court’s order he was sent for treatment and his
conduct was normal thereafter.
14. Considering the principles set out above in the
background facts, the present case is not one where the
protection under Section 84 IPC can be applied. However, as
and when jail authorities feel that the appellant needs
treatment, the same should be immediately treated, preferably
at Man Singh Medical Hospital, Jaipur, where he was earlier
treated or any other mental hospital of repute.
15. Appeal is without any merit and is dismissed.