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PETITIONER: BHIKARI

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 25/02/1965

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. WANCHOO, K.N. SIKRI, S.M.

CITATION:  1966 AIR    1            1965 SCR  (3) 194  CITATOR INFO :  F          1974 SC 216  (6)  RF         1990 SC1459  (17)

ACT: Criminal  Trial--Insanity--Burden of  proving--Indian  Penal Code  (Act  45 of 1860), s. 84--Indian Evidence  Act  (1  of 1872), s. 105.

HEADNOTE:     The  appellant who killed a child in a cruel manner  and injured  others was tried and convicted under s. 302  Indian Penal  Code,  and  his appeal before  the  High  Court  also failed.   In  his  statement  at  the  trial  he   did   not specifically plead insanity but in both the courts the  plea that  being  insane  he  could  not  be  credited  with  the intention  requisite for the offence alleged was  raised  on his  behalf.  appeal, by special leave, before  the  Supreme Court,  it was urged his behalf that despite the  provisions of s. 105 Indian Evidence Act the burden of proving that the accused had the requisite intention and therefore of proving that he was not insane was on the prosecution. The  argument was  sought to be supported by certain observations  of  the Court in Dahyabhai  Chhaganbhai  Thakkar’s case. HELD:  (i)  The  burden  of proving  the  intention  of  the accused  person,  where intention is  an ingredient  of  the offence is on the prosecution and this burden never  shifts. But   intention   can   sometimes  be   only   proved   from circumstances  and  therefore  it  is   sufficient  for  the prosecution  to  prove  the acts of the  accused   and   the circumstances in which they were committed. If from these an ference of the requisite intention can be reasonably  drawn, the  prosecution   must  be  deemed  to    have   discharged its  burden. [196 G-197B] (ii)  Section  84 of the Indian Penal Code can no  doubt  be invoked  by a person for nullifying the evidence adduced  by the prosecution by establishing that he was at the  relevant time incapable of knowing the nature of the act or that what he  was doing was wrong or contrary to law. The  prosecution need not give evidence about the capacity of the accused  to know the nature of the act or that it was wrong or  contrary to law because these are matters of presumption. Everyone is

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presumed  to  know  the natural  consequences  of  his  act. Similarly  everyone is presumed to know the law. It  is  for this reason that s. 105 of the Evidence Act places upon  the accused person the burden of proving the exception on  which he relies. [197 B-D] (iii)  The  second part of s. 105 lays down that  the  Court shall  presume the absence of circumstances on the basis  of which  the  case  could  be said to  come  under  a  General Exception.  But  this  presumption  is  rebuttable  and  the accused  can  rebut  it either by  leading  evidence  or  by relying  upon the prosecution evidence itself. If  upon  the evidence  adduced in the case whether by the prosecution  or by the accused a reasonable doubt is created in the mind  of the  court as regards one or more of the ingredients of  the offence  including  menses  of  the  accused,  he  would  be entitled to be acquitted. This is very different from saying that  the prosecution must also establish the sanity of  the accused at the time of the commission of the offence despite what  has  been  expressly provided for in  s.  105  of  the Evidence Act. [196. E; 198 A-C]     Dahabhai  Chhaganbhai  Thakkar  v.  State  of   Gujarat, [1964] 7 S.C.R. 361, explained and affirmed.     195

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 263 of 1964.     Appeal  by  special leave from the  judgment  and  order dated  July 2, 1964 of the Allahabad High Court in  Criminal Appeal No. 356 of 1964 and Ref. No. 15 of 1964.  S.P. Varma, for the appellant. O.P. Rana, for the respondent. The Judgment of the Court was delivered by     Mudholkar,  J.  The  appellant  has  appealed  from  the judgment  of  the  High Court  at  Allahabad  affirming  his conviction  for offences under ss. 302, 307 and 324,  Indian Penal Code and confirming the sentence of death passed  upon him  in  respect  of  the offence  under  s.  302  and  also affirming  the sentences passed in respect of the other  two offences. The facts as found by the High Court are these:     The  appellant  had quarrelled with Mangali,  PW  1,  as Mangali  reprimanded him over the grazing of his  cattle  in Mangali’s  field  and  damaging  his  crops.  The  appellant threatened  Mangali that he would exterminate  the  latter’s family. On February 25, 1957 at about 3-00 p.m. Babu Ram son of Mangali, aged about 7 or 8 years, Ram Ratia, aged about 2 years,  daughter  of  Mangali’s brother and  Punna,  son  of Baijnath,  brother  of Mangali and Dulli,  daughter  of  one Ladda  Kewat,  aged  about 10 or 11  years  and  some  other children  were  playing  in  the village  near  the  hut  of Hiralal,  P.W.  3.  The appellant came there  armed  with  a sickle and rushed at the children. He first struck a blow on Babu  Ram, who fled away and started crying.  Mangali’s  one year old daughter Lachhminia was also there at that time and the appellant ripped open that child’s chest with the sickle as  a  result  of which she  died  almost  immediately.  The appellant then struck blows on Ram Ratia and also on  Punna. Hiralal,  the brother of the appellant who was  sleeping  in his hut was awakened by the cries of children and rushed out to  save  them.  Thereupon the appellant struck  a  blow  on Hiralal  as well. Hearing the cries of children a number  of villagers rushed to the spot but the appellant escaped  from

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their clutches by running towards the river Ganges which  is at  a  distance  of about 75 paces from  the  place  of  the incident, jumped into the water and swam to the other  shore and absconded. On October 11, 1957 proceedings under ss.  87 and  88  of  the Code of  Criminal  Procedure  were  started against  him and he was eventually proceeded against  as  an absconder.  It  was  only on February 1, 1963  that  he  was arrested and thereafter sent up for trial. At that trial  he was convicted and sentenced, as already stated.     The  only point urged by Mr. Varma who appears  for  the appellant is that the appellant was a person of unsound mind and  that  he was not in a position to know or  realise  the nature of the acts D),2SCI-16 196 which  he was committing. Learned counsel argued  that  mens rea  being an essential ingredient of all the offences  with which the appellant was charged his conviction with  respect to  any  of them cannot be sustained for the  simple  reason that  no  intention to cause death or to  cause  any  injury whether  resulting  in  death  or  not  could  possibly   be attributed to a person who, when he committed the acts,  was insane.  Similar  arguments appear to  have  been  addressed before  the Sessions Judge ,as well as the High Court,  even though  in  his  examination under s. 342  of  the  Code  of Criminal  Procedure the appellant did not plead the  defence of insanity.     Section  84 of the Penal Code, one of the provisions  in Ch.  IV  of  the  Penal  Code,  which  deals  with  "General Exceptions" provides as follows:                     "Act  of  a  person  of   unsound  mind.               Nothing  is  an  offence which is  done  by  a               person who, at the time of doing it, by reason               of  unsoundness  of  mind,  is  incapable   of               knowing  the nature of the act, or that he  is               doing  what  is either wrong  or  contrary  to               law ." Under s. 105 of the Indian Evidence Act, 1872 the burden  of proving  the  existence of circumstances bringing  the  case within  any  of the exceptions specified in the  Penal  Code lies  upon the accused person. It further provides  that  in such  a  case the Court shall presume the  absence  of  such circumstances.  Illustration (a) to that provision  runs  as follows:--                      "A, accused of murder, alleges that, by               reason of unsoundness of mind, he did not know               the nature of the Act.               The burden of proof is on A." Learned  counsel, however,  relies upon a decision  of  this Court   in  Dahyabhai  Chhaganbhai   Thakkar  v.  State   of Gujarat(1),  and contends that it is for the prosecution  to establish  the  necessary mens rea of the accused  and  that even  though  the  accused may not have taken  the  plea  of insanity or led any evidence to show that he was insane when he committed an offence of which intention is an  ingredient the prosecution must satisfy the court that the accused  had the  requisite intention. There is no doubt that the  burden of proving an offence is always on the prosecution and  that it  never  shifts. It would, therefore, be correct  to.  say that  intention  when it is an essential  ingredient  of  an offence, has also to be established by the prosecution.  But the  state  of  mind  of a person  can  ordinarily  only  be inferred  from circumstances. Thus if a person  deliberately strikes another with a deadly weapon, which according to the common  experience of mankind is likely to cause  an  injury

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and sometimes even a fatal injury depending upon the quality of  the  weapon  and the part of the body  on  which  it  is struck,  it  would  be reasonable to  infer  that  what  the accused did was accompanied [1964] 7 S.C.R. 361. 197 by  the  intention to cause a kind of injury which  in  fact resulted  from the act. In such a case the prosecution  must be deemed to have discharged the burden which rested upon it to establish an essential ingredient of the offence,  namely the  intention  of the accused in inflicting a blow  with  a deadly  weapon. Section 84 of the Indian Penal Code  can  no doubt  be  invoked by a person for nullifying  the  evidence adduced  by the prosecution by establishing that he  was  at the relevant time incapable of knowing the-nature of the act or  that what he was doing was either wrong or  contrary  to law.  Now it is not for the prosecution to establish that  a person  who  strikes  another  with  a  deadly  weapon   was incapable  of  knowing the nature of the act or  of  knowing that what he was doing was either wrong or contrary to  law. Everyone   is  presumed to know the natural consequences  of his  act. Similarly  everyone  is also presumed to know  the law.  These  are  not facts which  the  prosecution  has  to establish. It is for this reason that s. 105 of the Evidence Act places upon the accused person the burden of proving the exception  upon which he relies. Mr. Varma, however,  relies upon  the following passage occurring in the  aforementioned judgment of this court:--                     "The doctrine of burden of proof in  the               context of the plea of insanity may be  stated               in   the  following  propositions:   (1)   The               prosecution must prove beyond reasonable doubt               that  the  accused had committed  the  offence               with the requisite mens rea; and the burden of               proving  that always rests on the  prosecution               from  the beginning to the end of  the  trial.               (2) There is a rebuttable presumption that the               accused was not insane, when he committed  the               crime, in the sense laid down by s. 84 of  the               Indian Penal Code: the accused may rebut it by               placing  before  the court  all  the  relevant               evidence--oral, documentary or circumstantial,               but the burden of proof upon him is no  higher               than   that  rests  upon  a  party  to   civil               proceedings.  (3) Even if the accused was  not               able  to  establish conclusively that  he  was               insane  at the time he committed the  offence,               the  evidence placed before the court  by  the               accused  or  by the prosecution  may  raise  a               reasonable  doubt in the mind of the court  as               regards one or more of the  ingredients of the               offence, including mens rea of the accused and               in  that case the court would be  entitled  to               acquit  the  accused on the  ground  that  the               general   burden  of  proof  resting  on   the               prosecution was not discharged." and  contends that according to the decision of  this  Court the legal position is otherwise.     This  passage does not say anything different from  what we have said earlier. Undoubtedly it is for the  prosecution to  prove  beyond  reasonable doubt  that  the  accused  had committed the 198 offence  with  the requisite mens rea. Once that is  done  a presumption that the accused was sane when he committed  the

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offence  would arise. This presumption is rebuttable and  he can rebut it either by leading  evidence  or by relying upon the  prosecution  evidence  itself.  If  upon  the  evidence adduced  in  the case whether by the prosecution or  by  the accused  a  reasonable doubt is created in the mind  of  the court  as  regards  one or more of the  ingredients  of  the offence  including  mens  rea of the  accused  he  would  be entitled to  be  acquitted.  This  is  very different   from saying  that the prosecution must also establish the  sanity of  the  accused at the time of commission  of  the  offence despite  what has been expressly provided for in s.  105  of the Evidence Act.     Mr.  Varma  further contends that there is  evidence  on record from which it can be inferred that the appellant  was a person of unsound mind. In the first place, he points out, that  no  man in his senses will go  on  attacking  children indiscriminately  and go to the length of ripping  open  the chest of one year old child. He then refers to the statement of  Dulli, P.W. 6, and that of Hiralal P.W. 3 in  which  the appellant is referred to as pagalwa and also to the specific statement of the former to the effect that the appellant was insane  when he attacked the children. It seems to  us  that the  indiscriminate manner in which the  appellant  attacked three innocent children and particularly his act of  ripping open the chest of Lachhminia only shows the brutality of the assailant   and   cannot  reasonably  be   regarded   as   a circumstance from which it could be inferred that he was  of unsound  mind. As regards the reference to the appellant  as pagalwa by the two witnesses we must point out two  relevant facts.  In  the first place Hiralal is the  brother  of  the appellant while Dulli, as she herself admits, belongs to the family  of the appellant. Both are therefore  interested  in the appellant. Neither of them had on earlier occasions ever mentioned  that  the  appellant was called  pagalwa  by  the villagers or that any one shouted when the appellant  killed Lachhminia  that  she was killed by the  pagalwa.  As  Dulli herself admits, it was for the first time that she came  out with  this statement in cross-examination Similarly  it  was for the first time in the cross-examination that she  stated that  the appellant was insane when he committed the  crime. It is because of this that  the  prosecution was allowed  to cross-examine  her.  Similarly  Hiralal,  after  making  the particular statement was, at the request of the prosecution, declared hostile and cross-examined. The earlier  statements made by him which would give a lie to what he had stated  in favour of the appellant at the trial were denied by him  but the  denial  was false. In these circumstances  the  learned Sessions  Judge  disbelieved that part of  the  evidence  of these  two  witnesses  which  tended  to  suggest  that  the appellant  was  a person of unsound mind and was   known  as such the village.        199     Mr. Varma then relies on the following observations made by the learned Sessions Judge and says that in view of these observations it would appear that the learned Sessions Judge entertained  a doubt about the sanity of the  appellant  and that, therefore, the benefit of that doubt must be given  to him. The statement runs thus:                     "I  am  conscious of the fact  that  the               standard  of proof required from  the  accused               for  the proving of his (sic) insanity at  the               time  of  commission of the crime is  not  the               standard   of   proof   required   from    the               prosecution but it is for the defence to prove               that   insanity   existed  at  the   time   of

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             commission of the crime and this burden cannot               be discharged merely by creating a doubt about               his insanity." We  find it difficult to construe these observations of  the learned  Sessions  Judge to mean what learned  Counsel  says they  mean.  Immediately after the statement which  we  have quoted  occurs the following in the judgment of the  learned Sessions Judge.                   "The   defence  must   establish   certain               circumstances either by its own evidence or by               the   prosecution  evidence  from  which   the               existence   of  insanity  can  reasonably   be               inferred.   The  mere  statement  of   hostile               witnesses   that  he  was  insane  cannot   be               accepted as sufficient evidence for the  proof               of the existence of the insanity." all  that  the learned Sessions Judge meant  by  saying  "by creating  a  doubt" evidently was that by merely  trying  to throw doubt about his sanity at the relevant time an accused person  cannot  be said to discharge the burden  of  proving that he was insane.     Apart  from  that.  as the learned  Sessions  Judge  has himself pointed out, the way in which the appellant used  to conduct himself before the incident, the manner in which  he acted  during the incident and his subsequent conduct  show. on the other hand, that he was perfectly sane. We can do  no better  than quote the relevant portion of the  judgment  of the learned Sessions Judge:                     "In the present case, there is  evidence               that up to the time of occurrence he has  been               doing his cultivation. There is no evidence on               record  to  prove the  characteristic  of  his               habit from which it could be concluded that he               was  acting  like an insane  man.  Before  the               commission of crime he not beat any person. On               the   other  hand,  few  months   before   the               occurrence  the accused admittedly  picked  up               quarrel  with Mangali and Bhaiya Lal  and  had               given   threatening  to  make   their   family               indistinct.  An insane person could  not  have               done so and it is not expected  that he  would               have continued his cultivation properly like a               sane   person.   Further,  on  the   date   of               occurrence   many   children   were    playing               including her own cousin sister. But first  of               all he gave a sickle blow only to Babu Ram and               other children of               200               the  family of Mangali and Bhaiya Lal and  not               to any other children. This shows that he  did               not  act under the influence of  insanity  but               only  with  some  previous  deliberation   and               preparation. It is further in evidence that he               had  given  threatening to the  witnesses.  He               beat  Hira Lal only when he tried to stop  the               act of beating of the children of Mangali  and               Bhaiya Lal’s family with whom he had picked up               quarrel  previously. Lastly, a sense  of  fear               prevailed in him and that is why he acted like               a  sane  man by running and then  escaping  by               jumping into the Ganges river. So, in my  view               all these circumstances lead to one conclusion               that  he was not insane and had acted  like  a               sane man and with some motive." We  entirely  agree with these observations of  the  learned

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Sessions  Judge and also with the conclusion arrived  at  by him  that the case of the appellant does not fall under  the exception created by s. 84 of the Indian Penal Code. In  the result we dismiss the appeal and affirm the  conviction  and sentences  passed  on the  appellant in respect of  each  of the  three  offences for which he was found  guilty  by  the learned Sessions Judge. Appeal dismissed. 201