19 March 1964
Supreme Court


Case number: Appeal (crl.) 58 of 1962






DATE OF JUDGMENT: 19/03/1964


CITATION:  1964 AIR 1563            1964 SCR  (7) 361  CITATOR INFO :  E          1966 SC   1  (5)  R          1971 SC 778  (2)  RF         1972 SC2443  (12)  F          1974 SC 216  (6)  F          1974 SC1570  (19)  R          1977 SC 170  (10)  R          1980 SC 660  (14,16)  R          1990 SC1459  (24)

ACT: Criminal  Law-Burden of proof of guilt-General  and  special burdens,  if in conflict-Plea of insanity-Mode of proof  en- umerated--Questions under s. 154 of Evidence Act-When  court can permit-Indian Penal Code, 1860 (Act 45 of 1860), ss. 80, 84,  299--Indian  Evidence Act, 1872 (1 of 1872),  ss.  105, 137, 154.

HEADNOTE: The  appellant was charged with murdering his wife.   Before the  Sessions Judge a defence was set up that the  appellant was insane when the incident took place and was not  capable of understanding the nature of his act.  The Sessions  Judge rejected the plea of insanity and convicted him under s. 302 of  the  Indian  Penal  Code.   On  appeal  the  High  Court confirmed the conviction. Held--(i) There is no conflict between the general burden to prove the guilt beyond reasonable doubt, which is always  on the  prosecution  and which never shifts,  and  the  special burden that restson  the accused to make out his  defence of insanity. (ii)  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, mensrea; 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  which 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. K.   M.  Nanavati  v. State of Maharashtra, [1962]  Supp.  1 S.C.R.567. followed. Ramhitram v. State, A.I.R. 1956 Nag. 187, disapproved. Kamla Singh v. State, A.I.R. 1955 Pat. 209, approved. H.   M. Advocate v. Fraser, (1878)4 Couper 70, referred to. (iii)The  court  can  permit  a  person,  who  calls  a witness,  to  put  questions to him which might  be  put  in cross-examination,  at any stage of the examination  of  the witness,  provided it takes care to give an  opportunity  to the  accused  to cross-examine him on the  answers  elicited which do not find place in the examination-in-chief. 362 Section 137 of the Evidence Act, gives only the three stages in the examination of a witness, and it has no relevance  to the question when a party calling a witness can be permitted to  put to him questions under s. 154 of the  Evidence  Act: that  is  governed by the provisions of s. 154 of  the  said Act,  which  confers a discretionary power on the  court  to permit a person who calls a witness to put any questions  to him  which might be put in cross-examination by the  adverse party. Tahsildar Singh v. The State of U.P., [1959] SUPP. 2  S.C.R. 875, followed.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 58  of 1962.   Appeal by special leave from the judgment and  order dated  June 27, 1961 of the Gujarat High Court  in  Criminal Appeal No. 656/1960. B.   K. Banerjee, for the appellant. D.   R. Prem, R. H. Dhebar and B. R. G. K. Achar, for the respondent. March 19, 1964.  The Judgment of the Court was delivered by SUBBA RAO, J.-This appeal raises the question of the defence of insanity for an offence under s. 302 of the Indian  Penal Code. The appellant was the husband of the deceased Kalavati.  She was married to the appellant in the year 1958.  On the night of April 9, 1959, as usual, the appellant and his wife slept in  their bed-room and the doors leading to that  room  were bolted from inside.  At about 3 or 3.30 a.m. on the next day Kalavati  cried that she was being killed.   The  neighbours collected in front of the said room and called upon the  ac- cused to open the door.  When the door was opened they found Kalavati  dead  with a number of wounds on  her  body.   The accused was sent up for trial to the sessions on the  charge of  murder.  Before the Additional Sessions Judge, Kaira,  a defence  was  set up that the accused was  insane  when  the incident was alleged to have taken place and was not capable of understanding the nature of his act. The learned Additional Sessions Judge considered the  entire evidence placed before him, and came to the conclusion  that



the accused had failed to satisfy him that when he committed the  murder  of his wife he was not capable to  knowing  the nature  of  the act and that what he was  doing  was  either wrong  or  contrary  to law.  Having rejected  his  plea  of insanity,  the learned Additional Sessions  Judge  convicted him under s. 302 of the Indian Penal Code and sentenced  him to undergo rigorous imprisonment for life.  On appeal 363 the  High  Court  agreed  with  that  finding,  though   for different reasons, and confirmed the conviction and sentence of the accused.  Hence the present appeal. Learned  counsel for the appellant contended that  the  High Court,  having  believed  the evidence  of  the  prosecution witnesses, should have held that the accused had  discharged the  burden  placed on him of proving that at  the  time  he killed  his wife he was incapable of knowing the  nature  of his act or what he was doing was either wrong or contrary to law.   He  further contended that even if he had  failed  to establish  that fact conclusively, the evidence adduced  was such as to raise a reasonable doubt in the mind of the Judge as  regards one of the ingredients of the  offence,  namely, criminal  intention, and, therefore, the court  should  have acquitted  him for the reason that the prosecution  had  not proved the case beyond reasonable doubt. Before we address ourselves to the facts of the case and the findings  arrived  at  by  the  High  Court,  it  would   be convenient to notice the relevant aspects of the law of  the plea  of  insanity.   At  the outset  let  us  consider  the material provisions without reference to decided cases.  The said provisions are:                      INDIAN PENAL CODE               Section 299--Whoever causes death by doing  an               act  with the intention of causing  death,  or               with  the  intention of  causing  such  bodily               injury  as is likely to cause death,  or  with               the knowledge that he is likely by such act to               cause  death, commits the offence of  culpable               homicide.               Section  84--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.                            INDIAN EVIDENCE ACT               Section  105--When a person is accused of  any               offence,  the burden of proving the  existence               of circumstances bringing the case within  any               of the General Exceptions in the Indian  Penal               Code  (XLV  of  1860) or  within  any  special               exception  or proviso contained in  any  other               part of the same Code, or in any law  defining               the offence, is upon him, and the Court  shall               presume the absence of such circumstances.               364               Section  4-"Shall  presume":  Whenever  it  is               directed  by  this Act that  the  Court  shall               presume a fact, it shall regard such facts  as               proved unless and until it is disproved.               "Proved"-A  fact is said to be  "proved"  when               after  considering the matters before it,  the               Court   either  believes  it  to   exist,   or               considers  its  existence so probable  that  a               prudent man ought, under the circumstances  of               the   particular   case,  to  act   upon   the



             supposition that it exists.               "Disproved"-A  fact  is said to  be  disproved               when, after considering the matters before it,               the  Court  either believes that it  does  not               exist,  or  considers  its  non-existence   so               probable  that a prudent man ought, under  the               circumstances  of the particular case, to  act               upon the supposition that it does not exist.               Section 101--Whoever desires any Court to give               judgment  as to any legal right  or  liability               dependent  on the existence of fact  which  he               asserts, must prove that those facts exist.               When a person is bound to prove the  existence               of  any fact.. it is said that the  burden  of               proof lies on that person. It is a fundamental principle of criminal jurisprudence that an  accused is presumed to be innocent and,  therefore,  the burden  lies  on the prosecution to prove the guilt  of  the accused   beyond   reasonable   doubt.    The   prosecution, therefore,  in  a  case  of  homicide  shall  prove   beyond reasonable  doubt  that the accused caused  death  with  the requisite intention described in s. 299 of the Indian  Penal Code.  This general burden never shifts and it always  rests on the prosecution.  But, as s. 84 of the Indian Penal  Code provides  that nothing is an offence if the accused  at  the time of doing that act, by reason of unsoundness of mind was incapable  of knowing the nature of his act or what  he  was doing  was either wrong or contrary to law.  This  being  an exception,  under s. 105 of the Evidence Act the  burden  of proving  the  existence of circumstances bringing  the  case within the said exception lies on the accused; and the court shall  presume the absence of such circumstances.  Under  s. 105 of the Evidence Act, read with the definition of  "shall presume" in s. 4 thereof, the court shall regard the absence of  such circumstances as proved unless,  after  considering the  matters before it, it believes that said  circumstances existed  or their existence was so probable that  a  prudent man  ought, under the circumstances of the particular  case, to act upon the supposition that they did exist.  To put 365 it  in  other  words, the accused will  have  to  rebut  the presumption  that  such  circumstances  did  not  exist,  by placing material before the court sufficient to make it con- sider  the existence of the said circumstances  so  probable that a prudent man would act upon them.  The accused has  to satisfy  the standard of a "prudent man".  If  the  material placed  before  the  court. such as,  oral  and  documentary evidence,  presumptions, admissions or even the  prosecution evidence,  satisfies the test of "prudent man", the  accused will have discharged his burden.  The evidence so placed may not  be sufficient to’ discharge the burden under s. 105  of the Evidence Act, but it may raise a reasonable doubt in the mind  of  a judge as regards one or other of  the  necessary ingredients  of the offence itself.  It may,  for  instance, raise  a reasonable doubt in the mind of the  judge  whether the accused had the requisite intention laid down in s.  299 of the Indian Penal Code.  If the judge has such  reasonable doubt,  he has to acquit the accused, for in that event  the prosecution will have failed to prove conclusively the guilt of  the accused.  There is no conflict between  the  general burden,  which is always on the prosecution and which  never shifts, and the special burden that rests on the accused  to make out his defence of insanity. The  textbooks placed before us and the decisions  cited  at the Bar lead to the same conclusion.  In Halsbury’s Laws  of



England, 3rd edn., Vol. 10, at p. 288, it is stated thus: "The  onus of establishing insanity is on the accused.   The burden of proof upon him is no higher than which rests  upon a party to civil proceedings." Glanville  Williams in his book ’Criminal Law", The  General Part,  2nd Edn., places the relevant aspect in  the  correct perspective thus, at p. 516:               "As  stated before, to find that  the  accused               did not know the nature and quality of his act               is, in part, only another way of finding  that               he  was ignorant as to some fact  constituting               an  ingredient of the crime; and if the  crime               is one requiring intention or recklessness  he               must,  on the view advanced in this  book,  be               innocent  of mens rea.  Since  the  persuasive               burden  of proof of mens rea is on the  prose-               cution, on question of defence, or of  disease               of  the mind, arises, except in so far as  the               prisoner is called upon for his own safety  to               neutralise  the evidence of  the  prosecution.               No  persuasive burden of proof rests  on  him,               and  if  the jury are  uncertain  whether  the               allegation    of    mens    rea    is     made               out ............ the benefit of the doubt must               be given to the prisoner, for, in the words               366               of Lord Reading in another context, "the Crown               would then have failed to discharge the burden               imposed  on  it by our law of  satisfying  the               jury  beyond reasonable doubt of the guilt  of               the prisoner." This Court in K. M. Nanavati v. State of Maharashtra(1)  had to  consider the question of burden of proof in the  context ofa defence based on the exception embodied in s. 80 of  the Indian  Penal Code.  In that context the law  is  summarized thus:                "The  alleged  conflict between  the  general               burden  which lies on the prosecution and  the               special burden imposed on the accused under s.               105 of the Evidence Act is more imaginary than               real.   Indeed, there is no conflict  at  all.               There  may arise three  different  situations:               (1) A statute may throw the burden of proof of               all  or some of the ingredients of an  offence               on  the  accused:  (see ss. 4  and  5  of  the               Prevention of Corruption Act). (2) The special               burden  may not touch the ingredients  of  the               offence, but only the protection given on  the               assumption   of   the  proof   of   the   said               ingredients: (see ss. 77, 78, 79, 81 and 88 of               the  Indian Penal Code). (3) It may relate  to               an  exception, some of the many  circumstances               required to attract the exception, if  proved,               affecting  the  proof of all or  some  of  the               ingredients of the offence: (see s. 80 of  the               Indian Penal Code)........................  In               the third case, though the burden lies on  the               accused to bring his case within the exception               the  facts proved may not discharge  the  said               burden,  but  may  affect  the  proof  of  the               ingredients of the offence."               After  giving  an  illustration,  this   Court               proceeded to state:               "That evidence may not be sufficient to  prove               all  the  ingredients of s. 80 of  the  Indian



             Penal  Code, but may prove that  the  shooting               was by accident or inadvertence, i.e., it  was               done without any intention or requisite  state               of mind, which is the essence of the  offence,               within  the  meaning of s. 300,  Indian  Penal               Code,  or at any rate may throw  a  reasonable               doubt  on  the essential  ingredients  of  the               offence  of murder..................  In  this               view it might be said that the general  burden               to  prove  the  ingredients  of  the  offence,               unless  there  is a specific  statute  to  the               contrary,  is always on the  prosecution,  but               the  burden to prove the circumstances  coming               under the exceptions lies upon the accused."               (1)   [1962] Supp. 1 S.C.R. 567, 597, 598.               367 What is said of s. 80 of the Indian Penal Code will  equally apply to s. 84 thereof.  A Division Bench of the Patna  High Court  in  Kamla  Singh v. The State (1)  invoked  the  same principle when the plea of insanity was raised.  A  Division Bench of the Nagpur High Court in Ramhitram v. State(1)  has struck a different note inasmuch as it held that the benefit of doubt which the law gives on the presumption of innocence is available only where the prosecution had not been able to connect  the  accused with the occurrence and  that  it  had nothing  to do with the mental state of the  accused.   With great respect, we cannot agree with this view.  If this view were  correct,  the  court would be helpless  and  would  be legally  bound to convict an accused even though  there  was genuine  and reasonable doubt in its mind that  the  accused had  not  the requisite intention when he did  the  act  for which  he was charged.  This view is also inconsistent  with that expressed in Nanavati’s case(3).  A Scottish case, H.M. Advocate  v.  Fraser(4),  noticed  in  Glanville   Williams’ "Criminal  Law",  The  General Part, 2nd Edn.,  at  p.  517, pinpoints  the distinction between these two  categories  of burden of proof.  There, a man killed his baby while he  was asleep;  he was dreaming that he was struggling with a  wild beast.  The learned author elaborates the problem thus:               "When  the Crown proved that the  accused  had               killed   his  baby  what  may  be  called   an               evidential presumption or presumption of  fact               arose  that  the killing was murder.   Had  no               evidence been adduced for the defence the jury               could  have  convicted of  murder,  and  their               verdict would have been upheld on appeal.  The               burden  of adducing evidence of  the  delusion               therefore  lay on the accused.  Suppose  that,               when all the evidence was in, the jury did not               know  what to make of the matter.  They  might               suspect the accused to be inventing a tale  to               cover  his  guilt, and yet not  be  reasonably               certain  about it. In that event  the  accused               would  be  entitled  to  an  acquittal.    The               prosecution must prove beyond reasonable doubt               not only the actus reus but the mens rea.  " 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



(1)A.I.R. 1955 Pat. 209.       (2) A.I.R. 1956 Nag. 187. (3)[1962] Supp.  1 S.C.R. 567. (4) (1878) 4 Couper 70. 368 Indian  Penal Code: the accused may rebut it by  placing  be fore  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. Now  we  come to the merits of the case.   Ordinarily  this, Court in exercise of its jurisdiction under Art. 1.36 of the Constitution accepts the findings of fact arrived at by  the High Court.  But, after having gone through the judgments of the learned Additional Sessions Judge and the High Court, we are  satisfied  that this is an exceptional case  to  depart from  the  said practice.  The learned  Additional  Sessions Judge rejected the evidence of the prosecution witnesses  on the  ground that their version was a subsequent  development designed  to belly the accused.  The learned Judges  of  the High  Court  accepted  their  evidence  for  two   different reasons.   Raju,  J., held that a court can permit  a  party calling  a  witness  to put questions under s.  154  of  the Evidence Act only in the examination-inchief of the witness; for this conclusion, he has given the following two reasons: (1)  the  wording  of ss. 137 and 154 of  the  Evidence  Act indicates it, and (2) if he is permitted to put questions in the  nature  of  cross-examination  at  the  stage  of   re- examination  by  the adverse party, the adverse  party  will have no chance of cross-examining the witness with reference to the answers given to the said questions.  Neither of  the two  reasons, in our view, is tenable.  Section 137  of  the Evidence Act gives only the three stages in the  examination of   a   witness,   namely,   examination-in-chief,   cross- examination and re-examination.  This is a routine  sequence in  the examination of a witness.  This has no relevance  to the question when a party calling a witness can be permitted to  put to him questions under s. 154 of the  Evidence  Act: that  is  governed by the provisions of s. 154 of  the  said Act,  which  confers a discretionary power on the  court  to permit a person who calls a witness to put any questions  to him  which might be put in cross-examination by the  adverse party.   Section  154  does not in terms,  or  by  necessary implication  confine the exercise of the power by the  court before  the  examination-in-chief  is concluded  or  to  any particular  stage of the examination of the witness.  It  is wide  in  scope and the discretion is entirely left  to  the court  to exercise the power when the circumstances  demand. To  confine this power to the stage of  examination-in-chief is to make 369 it  ineffective  in  practice.   A  clever  witness  in  his examination  in-chief faithfully conforms to what he  stated earlier to the police or in the committing court, but in the cross-examination  introduces  statements in  a  subtle  way contradicting   in   effect   what   he   stated   in    the examination-in-chief.   If his design is obvious, we do  not see  why the court cannot, during the course of  his  cross- examination,  permit the person calling him as a witness  to



put questions to him which might be put in cross-examination by the adverse party.  To confine the operation of s. 154 of the Evidence Act to a particular stage in the examination of a  witness  is to read words in the section  which  are  not there.   We cannot also agree with the High Court that if  a party  calling a witness is permitted to put such  questions to  the  witness  after he has been  cross-examined  by  the adverse   party,  the  adverse  party  will  not  have   any opportunity  to  further cross-examine the  witness  on  the answers  elicited  by putting such questions.   In  such  an event  the court certainly, in exercise of  its  discretion, will permit the adverse party to crossexamine the witness on the   answers  elicited  by  such  questions.   The   court, therefore, can permit a person, who calls a witness, to  put questions to him which might be put in the  crossexamination at any stage of the examination of the witness, provided  it takes  care to give an opportunity to the accused to  cross- examine him on the answers elicited which do not find  place in  the  examination-in-chief.   In the  present  case  what happened was that some of the witnesses faithfully  repeated what  they had stated before the police in the  examination- inchief, but in the cross-examination they came out with the story of insanity of the accused.  The court, at the request of the Advocate for the prosecution, permitted him to cross- examine  the said witnesses.  It is not suggested  that  the Advocate  appearing  for  the accused asked  for  a  further opportunity to cross-examine the witnesses and was denied of it  by  the court.  The procedure followed  by  the  learned Judge  does not conflict with the express provisions  of  s. 154  of the Evidence Act.  Mehta, J., accepted the  evidence of  the witnesses on the ground that the earlier  statements made  by  them before the police did  not  contradict  their evidence  in  the court, as the non-mention  of  the  mental state  of the accused in the earlier statements was only  an omission.   This reason given by the learned Judge  is  also not  sound.  This Court in Tahsildar Singh v. The  State  of U.P.(1) laid down the following test for ascertaining  under what circumstances an alleged omission can be relied upon to contradict the positive evidence in court:               "...............   (3)  though  a   particular               statement   is  not  expressly   recorded,   a               statement  that  can be deemed to be  part  of               that expressly recorded can be used               (1)[1959] Supp. 2 S.C.R. 875, 903. 370               for  contradiction,  not  because  it  is   an               omission strictly so-called but because it  is               deemed to form part of the recorded statement;               (4)   such   a  fiction  is   permissible   by               construction  only  in  the  following   three               cases:  (i)  when  a  recital  is  necessarily               implied from the recital or recitals found  in               the  statement  .......... ; (ii)  a  negative               aspect of a positive               when the statement before the police and  that               before the Court cannot stand together ". Broadly stated, the position in the present case is that the witnesses in their statements before the police attributed a clear intention to the accused to commit murder, but  before the  court  they  stated that the accused  was  insane  and, therefore, he committed the murder.  In the circumstances it was  necessarily implied in the previous statements  of  the witnesses before the police that the accused was not  insane at  the  time  he committed the murder.  In  this  view  the previous  statements of the witnesses before the police  can



be  used  to  contradict their version in  the  court.   The judgment of the High Court, therefore, in relying upon  some of  the important prosecution witnesses was vitiated by  the said  errors  of  law.   We  would,  therefore,  proceed  to consider the entire evidence for ourselves. When  a plea of legal insanity is set up, the court  has  to consider  whether at the time of commission of  the  offence the accused, by reason of unsoundness of mind, was incapable of  knowing the nature of the act or that he was doing  what was  either wrong or contrary to law.  The crucial point  of time  for ascertaining the state of mind of the  accused  is the  time  when  the offence  was  committed.   Whether  the accused was in such a state of mind as to be entitled to the benefit  of  s.  84 of the Indian Penal  Code  can  only  be established from the circumstances which preceded,  attended and followed the crime. The first question is, what is the motive for the  appellant to kill his wife in the ghastly manner he did by  inflicting 44  knife  injuries  on her body?   Natverlal  Atmaram,  the father  of the deceased Kalavati, was examined as  P.W.  13. He said that about 20 days before his daughter was  murdered he  received  a letter from the accused asking him  to  take away  his daughter on the ground that he did not  like  her, that  he  went  to Bherai with that  letter,  showed  it  to Chhaganbhai, the father of the accused, and had a talk  with him about it; that Chhaganbhai took that letter from him and promised  to persuade the accused not to discard his  wife-, that,  after  a week be again went to Bherai and  asked  the accused  why  he did not like the deceased and  the  accused replied  that  he did not like her as she  was  not  working properly;  and that thereafter he went back to  his  village and sent a message through someone that he would go 371 to Bherai to take his daughter on Chaitra Sudi 1. The murder took place on the night before Chaitra Sudi 1. In the cross- examination he admitted that he did not tell the police that he’  had given the letter to the father of the accused,  but he  told the Sub-Inspector that he had shown the  letter  to him.   Chhaganlal, the father of the accused, as P.W. 7,  no doubt  denied that Natverlal gave him the letter written  by the  accused,  but he admitted that Natverlal  came  to  his village  10  or  15 days before the  incident  to  take  his daughter  away.  The evidence of Natverlal that he  went  to the  village of the accused is corroborated by the  evidence of P.W. 7. It is, therefore, likely that the accused wrote a letter  to  Natverlal to take away Kalavati and it  is  also likely that Natverlal gave that letter to P.W. 7 to persuade his  son not to discard his wife.  P.W.s 2 to 7 said in  the cross-examination  that  the accused and his  wife  were  on cordial  terms,  but,  as  we will  indicate  later  in  our judgment, all these witnesses turned hostile in the sessions court  and made a sustained attempt to support the  case  of insanity.  That apart, their evidence does not disclose what opportunities  they had to notice the cordial relation  that existed  between the accused and the deceased.  The  learned Additional   Sessions   Judge  rightly   disbelieved   their evidence.   The learned Additional Sessions Judge,  who  had seen   Natverlal  in  the  witness-box,  has  accepted   his evidence.   We,  having gone through his  evidence.  see  no reason to differ from the opinion of the learned  Additional Sessions  Judge.   It  is also not denied  that  though  the accused was in Ahmedabad for ten months, he did not take his wife with him.  We accept the evidence of Natverlal and hold that  the  accused  did not like his  wife  and,  therefore, wanted  his father-in-law to take her away to his  home  and



that his father-in-law promised to do so before Chaitra Sudi 1. The  next question is, what was the previous history of  the mental  condition of the accused?  Here again, the  prosecu- tion witnesses, P.W.s. 2 to 7, deposed for the first time in the sessions court that 4 or 5 years before the incident the accused  was  getting  fits  of  insanity.   But  all  these witnesses  stated  before the police that  the  accused  had committed the murder of his wife, indicating thereby that he was   sane  at  that  time.   Further,  their  evidence   is inconsistent with the facts established in the case.  During this period, it was admitted by P.W. 7, the accused was  not treated by any doctor.  Prior to the incident he was serving in Ahmedabad in Monogram Mills for about a year and a  half. Though  the father of the deceased was staying in a  village only  a few miles away from the village of the  accused  and though the betrothal was fixed 5 years before the  marriage, he  did not know that the accused was insane, for if he  had known  that such was the mental condition of the accused  he would not have given his daughter in marriage to 372 him.   It is impossible to conceive that he would  not  have known  that the accused was insane if he was really so,  and particularly when it is the case of the accused that it  was not  kept  secret but was well known to many people  and  to some of the witnesses, who came to depose for him.  A  month and  a  half prior to the incident Chhaganlal  had  -one  to Ahmedabad  for medical treatment and during that period  the accused  came from Ahmedabad to manage his father’s shop  in his  absence.  The fact that he was recalled from  Ahmedabad was not disputed: but, while Natverlal said that the accused was  recalled  in order to manage Chhaganlal’s shop  in  his absence, Chhaganlal said that he was recalled because he was getting  insane.  The best evidence would have been that  of the  relative  in whose house the accused  was  residing  in Ahmedabad.   But the relative was not examined.  It  appears to us that the accused was serving in Ahmedabad in  Monogram Mills and he was asked to come to the village of his  father to attend to the latter’s business a month and a half before the  incident, as the father was leaving for  Ahmedabad  for medical treatment.  Before the commencement of the trial  in the  sessions  court on June 27, 1959,  an  application  was filed  on behalf of the accused, supported by  an  affidavit field  by  the father of the accused, praying that,  as  the accused  had  become insane, he should be  sent  for  proper medical treatment and observation.  In that affidavit it was not stated that the accused was getting fits of insanity for the  last 4 or 5 years and that he had one such fit at  that time.   If that was a fact, one would expect the  father  to allege  prominently the said fact in his  affidavit.   These facts  lead to a reasonable inference that the case  of  the accused  that  he  had periodical fits of  insanity  was  an afterthought.  The general statements of witnesses, P.W.s  1 to  6 that he had such fits must, therefore, necessarily  be false.   We.  therefore,  hold  that  the  accused  had   no antecedent history of insanity. Now coming to the date when the incident took place, P.W. 7, the father of the accused, said that the accused was  insane for 2 or 3 days prior to the incident.  His evidence further discloses that he and his wife had gone to Ahmedabad on  the date  of the incident and returned in the same evening.   If really the accused had a fit of insanity a day or two before the incident, is it likely that both the parents would  have left   him  and  ,,one  to  Ahmedabad"  To  get  over   this incongruity  P.W. 7 said that he went to Ahmedabad to see  a



bridegroom for his daughter and also to get medicine for the accused.   But he did not say which doctor he consulted  and wherefrom  he purchased the medicines or whether in fact  he bought  any medicines at all.  If the accused had a  fit  of insanity.  is it likely that the wife would have slept  with him in the same room?  We must, therefore, hold that it  had not  been established that 2 or 3 days before  the  incident the accused had a fit of insanity. 373 Now we come to the evidence of what happened on the night of the incident.  Nobody except the accused knows what happened in  the  bed-room.  P.W.s 2 to 7 deposed that  on  the  10th April, 1959, corresponding to Chaitra Sudi 1, between 3  and 4  a.m.  they heard shouts of the deceased Kalavati  to  the effect that she was being killed; that they all went to  the room but found it locked from inside; that when the  accused was  asked to open the door, he said that he would  open  it only  after  the Mukhi (P.W. 1) was called; that  after  the Mukhi  came there, the accused opened the door and came  out of the room with a blood-stained knife in his hand; that the accused  began talking irrelevantly and was  speaking  "why, you  killed  in-,;  mother?" "why,  you  burnt  my  father’s house?"; that afterwards the accused sat down and threw dust and mud at the persons gathered there; and that he was  also laughing without any cause.  In short, all the witnesses  in one   voice   suggested  that  the  accused  was   under   a hallucination that the deceased had murdered his mother  and burnt  his father’s house and, therefore, he killed  her  in that  state of mind without knowing what he was doing.   But none  of these witnesses had described the condition of  the accused immediately when he came out of the room, which they did  so graphically in the sessions court, at the time  when they  made  statements  before the police.  in  effect  they stated  before the police that the accused came out  of  the room  with  a blood-stained knife in his hand  and  admitted that  he had murdered his wife; but in the witness-box  they said  that  when  the accused came out of the  room  he  was behaving  like  a mad man and giving imaginary  reasons  for killing  his wife.  The statements made in  the  depositions are  really  inconsistent with the earlier  statements  made before  the police and they are,  therefore,  contradictions within  the  meaning  of  s. 162 of  the  Code  of  Criminal Procedure.  We cannot place any reliance on the evidence  of these  witnesses: it is an obvious development to  help  the accused. The  subsequent  events  leading up to  the  trial  make  it abundantly  clear  that the plea of insanity was  a  belated after thought and a false case.  After the accused came  out of the room, he was taken to the chora and was confined in a room  in  the  chora.  P.W. 16,  the  police  sub-inspector, reached  Bherai  at  about 9.30  a.m.  He  interrogated  the accused,  recorded his statement and arrested him  at  about 10.30  a.m. According to him, as the accused was willing  to make  a confession, he was sent to the judicial  magistrate. This witness described the condition of the accused when  he met him thus:               "When  I went in the Chora he had  saluted  me               and   he  was  completely  sane.   There   was               absolutely no sign of insanity and he was  not               behaving  as  an  insane  man.   He  was   not               abusing.  He had replied to               374               my questions understanding them and was giving               relevant  replies.  And therefore I  had  sent               him  to  the Magistrate for confession  as  he



             wanted to confess." There is no reason to disbelieve this evidence, particularly when  this is consistent with the subsequent conduct of  the accused.   But P.W. 9, who attested the panchnama,  Ex.  19, recording  the  condition  of the  accused’s  body  and  his clothes,   deposed  that  the  accused  was  murmuring   and laughing.  But no mention of his condition was described  in the  panchnama.   Thereafter, the accused was  sent  to  the Medical Officer, Mater, for examination and treatment of his injuries.  The doctor examined the accused at 9.30 p.m.  and gave  his  evidence as P.W. 11. He  proved  the  certificate issued  by him, Ex. 23.  Nothing about the mental  condition of the accused was noted in that certificate.  Not a  single question  was put to this witness in  the  cross-examination about the mental condition of the accused.  On the same day, the  accused  was  sent to the  judicial  Magistrate,  First Class,  for  making a confession.  On the next  day  he  was produced  before  the  said Magistrate, who  asked  him  the necessary  questions  and  gave him  the  warning  that  his confession  would  be used against him at  the  trial.   The accused  was  given  time for reflection  and  was  produced before  the Magistrate on April 13, 1959.  On that  date  he refused  to  make the confession.  His  conduct  before  the Magistrate, as recorded in Ex. 31, indicates that he was  in a  fit condition to appreciate the questions put to him  and finally to make up his mind not to make the confession which he   had  earlier  offered  to  do.   During   the   enquiry proceedings  under  Ch.   XVIII  of  the  Code  of  Criminal Procedure,  no suggestion was made on behalf of the  accused that he was insane.  For the first time on June 27, 1959, at the  commencement  of  the trial in the  sessions  court  an application was filed on behalf of the accused alleging that he  was suffering from an attack of insanity.  On  June  29, 1959,  the  Sessions  Judge sent the accused  to  the  Civil Surgeon, Khaira, for observation.  On receiving his  report, the  learned  Sessions Judge, by his order  dated  July  13, 1959,  found the accused insane and incapable of making  his defence.  On August 28, 1959, the court directed the accused to be sent to the Superintendent of Mental Hospital, Baroda, for  keeping him under observation with a direction to  send his  report  on  or before September  18,  1959.   The  said Superintendent  sent his report on August 27, 1960,  to  the effect  that  the accused was capable of  understanding  the proceedings  of the court and of making his defence  in  the court.   On  enquiry the court held that the  accused  could understand  the proceedings of the case and was  capable  of making  his defence.  At the commencement of the trial,  the pleader  for  the  accused stated  that  the  accused  could understand the proceedings.  The proceedings before the 375 Sessions  Judge  only show that for a short time  after  the case  had commenced before him the accused was insane.   But that  fact would not establish that the accused  was  having fits  of insanity for 4 or 5 years before the  incident  and that  at  the time he killed his wife he had such a  fit  of insanity  as to give him the benefit of s. 84 of the  Indian Penal Code.  The said entire conduct of the accused from the time  he  killed  his  wife  upto  the  time  the   sessions proceedings commenced is inconsistent with the fact that  he had a fit of insanity when he killed his wife. It is said that the situation in the room supports the  ver- sion that the accused did not know what he was doing.  It is asked,  why the accused should have given so many  stabs  to kill  an unarmed and undefended woman?  It is said  that  it discloses  that  the accused was doing the  act  under  some



hallucination.   On  the  other hand the  existence  of  the weapons  in the room, the closing of the door  from  inside, his reluctance to come out of the room till the Mukhi  came, even  if  that fact is true, would indicate that  it  was  a premeditated murder and that he knew that if he came out  of the room before the Mukhi came he might be manhandled.  Many sane  men  give  more  than the  necessary  stabs  to  their victims.   The number of blows given might  perhaps  reflect his  vengeful  mood  or his determination to  see  that  the victim  had no escape.  One does not count his strokes  when he commits murder.  We, therefore, do not see any indication of  insanity  from the materials found in the room,  on  the other hand they support the case of premeditated murder. To summarize: the accused did not like his wife; even though he  was employed in Ahmedabad and stayed there for about  10 months, he did not take his wife with him; he wrote a letter to his father-in-law to the effect that the accused did  not like her and that he should take her away to his house;  the father-in-law  promised  to  come on Chaitra  Sudhi  1;  the accused obviously expected him to come on April 9, 1959  and tolerated  the presence of his wife in his house till  then; as  his  father-in-law did not come on or  before  April  9, 1959,  the accused in anger or frustration killed his  wife. It  has  not been established that he was  insane;  nor  the evidence  is sufficient even to throw a reasonable doubt  in our  mind  that the act might have been committed  when  the accused was in a fit of insanity.  We, therefore, though for different  reasons, agree with the conclusion arrived at  by the High Court and dismiss the appeal. Appeal dismissed, 376