REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 321 OF 2007

Hari Singh Gond ...Appellant

Vs.

State of M.P.       ...Respondent

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  Madhya  Pradesh  High  Court  at  Jabalpur

confirming  the  conviction  of  the  appellant  for  offences

punishable under Sections 302 and 201 of the Indian Penal

Code, 1860 (in short the ‘IPC’) as recorded by learned Sessions

Judge Mandla in Sessions Case No. 66 of 1995 who imposed

sentences  of  imprisonment  for  life  and  three  years

respectively.  

2. Background  facts,  as  projected  by  the  prosecution,

during trial are as follows:

Harilal  Gond (hereinafter  referred  to  as  the  ‘deceased’)

was the maternal grandfather in law of the accused and in the

night of  incident  accused,  deceased  and his  samdhi  Motilal

were sleeping in the same house.   

Shyamlal (PW1), son in law of the deceased brought his

son in law accused Hari Singh on 23.2.1995 to Mohda from

Singanpuri for treatment. On 25.2.1995 in the evening Motilal

(PW2) the father of Shyamlal and his samdhi i.e. deceased and

son in law i.e. accused Hari Singh were sleeping in the same

room after having their meal. Shyamlal alone was sleeping in

his  room. Shyamlal  got up around 3-3.30 after  hearing the

shouting of his son in law who was pushing his door. Then

accused ran towards him to beat and in fact beat Shyamlal

with the lathi which he was carrying in his hand. Shyamlal

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ran away and went to the house of Baldan. After sometime he

observed that his house was burning. Then he came running

towards  his  house  and conveyed  the  same  to  the  villagers.

When  he  went  alognwith  villagers  to  his  house  then  the

villagers  Mulloo  Singh,  Chamru  Singh  etc.  caught  hold  of

accused Hari Singh and they observed that there was a fire in

the  room where  Harilal  the  father  in  law  of  Shyamlal  was

sleeping and his father in law was burnt and had died. Motilal

the  father  of  the  Shyamlal  told  him  that  Hari  Singh  had

slapped him at his cheek and had also kicked him at his back

and by taking lathi and trishul he ran after him, then he also

ran away. Then accused started beating deceased Harilal with

stick  and  accused  hit  Harilal  several  times  due  to  which

Harilal died. Then accused put some grains on fire which were

lying in that room, due to which not only the house caught the

fire but Harilal was also burnt. The incident was reported by

Shyam Lal in writing to police chowki Maneri of police station

Bija Dandi at 9.00 A.M. in the morning and the report is Ex.

P-1.  On  conducting  the  post-mortem  of  Harilal,  the  whole

dead body was found to have been burnt,  there were many

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injuries on his body and there was fracture in the head and all

the injuries were ante mortem.

After  investigation,  charge  sheet  was  filed.   Since

accused pleaded innocence, trial was held.

The trial court relied on the evidence of eye witness Moti

Lal (PW 2) while Kali Bai (PW 4) corroborated the statement of

eye witness about the unusual behaviour of the accused.

The  trial  court  found  the  evidence  to  be  cogent  and

accordingly  recorded  conviction  and  imposed  sentence  as

noted above.  It did not accept the plea that Section 84 IPC

has application.  In appeal before the High Court the stand

about unsoundness of mind and protection under Section 84

IPC was pressed into service.  

The  prosecution  on  the  other  hand  submitted  that

Section  84  has  no  relevance  or  application.  High  Court

accepted State’s stand and accordingly dismissed the appeal.

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3. In the present appeal it was submitted that the unusual

behaviour  of  the  accused  has  been  stated  by  even  the  eye

witness PW2 and PW 4 and, therefore, the courts below were

not justified in rejecting the plea of protection under Section

84 of the Act.

4. Learned counsel  for the respondent on the other hand

supported the judgment of the trial court and the High Court.

5. 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,

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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 false  statements.  All  facts  of  this  sort  are material  as  bearing  on  the  test,  which Bramwall, submitted to a jury in such a case :

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‘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”.

6. 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

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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.

7.  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

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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 mentis 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.

8.  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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9.   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 person cuts 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

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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

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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.

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10. 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

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.

11. The trial Court and the High Court have, on the facts of

the case, rightly held that Section 84 IPC has no application.

12. It is submitted that the accused-appellant is in custody

since  23.1.1996  and  Section  339  of  the  Code  of  Criminal

Procedure,  1973 (in short the ‘Cr.P.C’)  has application.  We

express no opinion in that regard.

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13. Appeal is dismissed.

…………………………………..J. (Dr. ARIJIT PASAYAT)

…………..……………………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, August 29, 2008   

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