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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.