17 December 1970
Supreme Court


Case number: Appeal (crl.) 135 of 1968






DATE OF JUDGMENT: 17/12/1970


CITATION:  1971 AIR  778            1971 SCR  (3) 251  1970 SCC  (3) 533

ACT: Indian Penal Code, s. 84-General exceptions-Plea of Insanity must  be  proved to have existed at time  of  commission  of offence  Burden of proof is on accused-Burden is not  higher than  that  on  parties to  civil  proceedings-Relatives  of accused as defence witnesses-Need not be disbelieved on that ground-They  have  opportunity to know  accused  intimately- Failure  of accused to produce expert evidence  in  defence- Adverse inference need not be drawn.

HEADNOTE: The  appellant set fire to grass lying near a  khalyan.   He was  arrested  next day From February 23, 1965 when  he  was arrested  to February 2, 1965, he was in police custody  and thereafter  sent to jail.  The Assistant Surgeon, the  Civil Surgeon,  and  the Psychiatrist of the  mental  hospital  to which  he  was referred reported that he was  depressed  and silent.   According to the Psychiatrist he was a lunatic  in terms of the Indian Lunacy Act, 1912.  At is trial under  s. 435  of the Indian Penal Code two of his relatives  appeared as  defence  witnesses and testified that  he  was  mentally unsound.  The trial Magistrate acquitted the accused on  the finding that the appellant fell within the general exception in  s.  84  of the Indian Penal Code.  The  High  Court,  in appeal filed by the State, reversed the judgment.  In appeal by special leave, HELD : It is now well-settled that the crucial point of time at  which unsoundness of mind should be established  is  the time  when the crime was committed.  The burden  of  proving this lies on the accused though the burden is no higher than that which rests upon a party to civil preceedings. [252 E] State of Madya Pradesh v. Ahmadulla, [1961] 3 S.C.R. 583 and D.  C.  Thakker v. State of Gujarat, [1964]  7  S.C.R.  361, referred to. In the present case the appellant had discharged the burden. There was no reason why the defence witnesses should not  be believed.  They were no doubt relations of the appellant but it  is  the relations who are likely to remain  in  intimate contact.   The  behaviour  of the appellant on  the  day  of occurrence, failure of the police to lead evidence as to his



condition when the appellant was in custody, and the medical evidence indicated that the appellant was insane within  the meaning of s. 84 I.P.C.[256 D] The  High  Court was wrong in drawing an  adverse  inference against  the accused on the ground that he had not  produced any  expert medical evidence in defence.  This could not  be expected  from  a  poor villager specially in  view  of  the certificates issued by the medical authorities after he  was arrested. [2-55 C] The High Court’s observation that the appellant appeared  to be  of normal understanding and the fact that he  had  given intelligent answers. to questions under s. 342 Cr.P.C., were irrelevant  considerations  in  view of the  time  that  had elapsed since the alleged commission of the offence. [256 B- C] 252

JUDGMENT: CRIMINAL  APPELLATE.  JURISDICTION: Criminal Appeal No.  135 of 1968. Appeal  by special leave from the judgment and  order  dated May  1,  1968  of  the Madhya  Praesh  High  Court,  Gwalior Bench .in Criminal Appeal No. 143 of 1966. R.   L. Kohli and J. C.  Talwar, for the appellant. I.   N. Shroff, for the respondent. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed a  aginst the  judgment of the High Court of Madhya  Pradesh,  Gwalior Bench,  allowing the appeal of the State and convicting  the appellant  for having committed an offence punishable  under S.  435,  Indian Penal Code, and sentencing him  to  undergo imprisonment  for one year.  The only point involved in  the present  appeal  is whether the appellant was  a  person  of unsound  mind within s. 84 of the Indian Penal Code  at  the time of the incident.  The Magistrate held that he was  not liable  to punishment as he was insane at that time and  did not  know  that  he was doing  anything  wrong  or  anything contrary to law.  The High Court, on the other hand, came to the conclusion that the case of the appellant did not  ’fall within the exception created by S. 84, I.P.C. It  is  now well-settled that the crucial point of  time  at which unsoundness of mind should be established is the  time when  the  .crime is actually committed and  the  burden  of proving  this lies of on the accused. (See State  of  Madhya Pradesh  v. Ahmadullah) (1).  In D. C. Thakker v.  State  of Gujarat(2)  it  was laid down that "there  is  a  rebuttable presu mption  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 al,  documentary or  circumstantial, but the burden of proof upon him  is  no higher  than  that which rests upon a party  to  civil  pro- cedings." It was further observed :                "The  crucial point of time for  ascertaining               the  state of mind of the accused is the  time               when  the  offence  was  circumstances   which               preceded, attended and followed the 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  learned counsel contends that if regard is had  to  the circumstances  which  preceded, attended  and  followed  the



crime it would be clear that the accused is entitled to the benefit of S. 84 of the Indian Penal Code. (1)  [1961] 3S.C.R.583. (2) [1964] 7S.C.R.361. 253 The prosecution case is that on January 22, 1965, the appel- lant set fire to the grass lying in the khalyan of Nemichand at  the time of the setting of the sun.  He was  caught  at the  spot while setting fire.  On being asked why he did  it the accused said; "I burnt it and do whatever you want." The accused was arrested on January 23, 1965, and he remained in police,  custody  till February 2, 1965, when it  was  found that the accused needed medical examination, and accordingly the  District  Magistrate  ordered  that  he  be   medically examined.  No explanation has been given why he was kept  in police  custody all that time.  There is no evidence  either to indicate as to his condition from the time of his  arrest to  the  time  when  his  case  was  referred  for   medical examination.   These facts were within the knowledge of  the police  and  we should have expected  that  the  prosecution would  lead  evidence regarding his  condition  during  this time.   Further,  the  police made  it  impossible  for  the appellant  to prove his mental condition at the time of  the incident by keeping him in their custody from January 23  to February  2, 1965, not having him examined and  not  sending him  to  judicial custody earlier where he would  have  been examined by the jail doctor. On  February  20, 1965, V. S.  Vaidya,  Assistant  Surgeon,. Civil  Hospital, Vidisha, reported to the Jailor, Sub  Jail, Vidisha, as follows :               "Subject, In Ref. to your letter No. 295 dated               8-2-1965.  Sir,               Ratanlal  Prisoner was kept under  observation               as  indoor patient during this time.   He  was               keeping  silent,  he never used to  reply  any               question  so in my opinion he should be  refd.               to  some specialist for further  investigation               and needful."               On  February  22, 1965, Y.  D.  Kamran,  Civil               Surgeon, Vidisha,. reported as follows:               "Shri  Ratanlal, undertrial, was  examined  by               me. He does not appear to be deaf or dumb, but               is  mentally retarded.  He should be  referred               to Stiperintendent, Mental Hospital,  Gwalior,               for expert opinion."               On March 29, 1965, Dr. B. Shah.   Psychiatrist               and  Superintendent,Mental Hospital,  Gwalior,               reported as follows:               "This  is  to certify that Shri  Ratanlal  s/o               Kishanlal who has been kept under  observation               in  this hospital from 18-3-1965 to  29-3-1965               is  a  person  of unsound mind,  in  terms  of               Indian   Lunancy   Act;  1912.   He   is   not               dangerous,               254               and/or violents by reason of Lunancy and  thus               unfit to be at large.  The report is based  on               the following facts observed here :-               (1)   Remains depressed.               (2)   Does not talk.               (3)   He is a case of Maniac depressive.               (4)   Psychosis and needs treatment." On  April  28, 1965, another report was given  that  he  was still  a person of unsound mind in terms of  Indian  Lunancy Act, 1912, but was better though still confused, and further



that  treatment was being continued and it may take 4  to  6 weeks more for recovery. The defence also led evidence as to his condition before the incident in question.  Shyamlal, D. W. 1, son-in-law of  the appellant stated that "the accused was not feeling well  for 2-3 years. He was in such a condition that if he is sitting will remain sitting.  If he is to go then he will go and  if he wishes to fall in the river then he will fall.  Such  was the  conditions of his mind that he used to set fire in  his own clothes and house." He further stated that on the day of the  incident the appellant did not allow anybody ,to  enter his  house and had put a lock on the house and his  children took  their  food outside, and the accused did not  talk  to anybody.  He further stated that "prior to this incident the accused  was being taken to Bhopal after tying him  for  the treatment  of  mind.  He was also taken to Bhavera  but  the accused  did  not  improve." In  ,cross-examination  it  was brought  out that "prior to the setting of fire the  accused was neither got admitted in the government hospital nor any, report  was  lodged  in  the  police  station."  No   cross- examination  was  directed to ascertain the  nature  of  his illness or to bring out that he was otherwise sane. Another  witness, Than Singh, D.W. 2, (the appellant is  his maternal  uncle)  stated  that the  appellant  "used  to  do whatever he thought.  He used to run away wherever he liked. He  used  to jump in the river also.  He used to  enter  the house of anybody.  He used to lock his house.  His’ children used  to  lie hungry outside.  He used to set  fire  in  his clothes also.  On the day of occurrence the condition of the accused was worst.  He did not speak to anybody on that day. "  The witness, however, admitted that the accused  had  not been taken to Government hospital.  The  Trial  Court also mentioned that  Moolchand,  P.W.  3, Madora,  P.W.  4,  and Dhanna, P.W. 6. admitted  that  the appellant remained in the khalyan throughout the period that the  grass was burning till the chowkidar took him to  thana and did not utter a word and did not try to run away. 255 The  Trial Court, relying on the evidence of Shyamlal,  D.W. 1,  Than Singh, D.W. 2, and the behaviour of the accused  on that day came to the conclusion that the accused was insane. He  also relied on the certificates issued by  the  doctors, mentioned above .He further found support in the, absence of motive  for the crime.  He also relied on the fact that  the appellant’s khalayan adjoined the khalayan which was set  on fire by him and if the appellant had been sane he would  not have taken the risk of having his own khalayan burnt,  which was most likely. The  High Court, with respect, erred in differing  from  the Trial Court.  The High Court observed that the appellant had not  examined  in defence any expert in mental  diseases  to substantiate  his plea of legal insanity.  It  is  expecting rather  a  great deal from a poor villager  that  he  should produce experts in mental diseases, specially in view of the certificates issued by the Medical authorities after he  was arrested.  The High Court further erred in holding that  the medical reports were of no evidential value. it is true that the reports speak of the mental state of the accused at  the time when the reports were issued but the High Court  failed to  note  that  the appellant was  in  police  custody  from January  23,  1965,  and  the  police  could  have  produced evidence  to show that he was absolutely sane till  the  day when they sent him for medical examination., The High Court thought that the evidence of the two  defence witnesses only suggested an irrational behaviour on the part



of  the  accused.   The  High Court  failed  to  note  that, according  to D.W. 2, the appellant used to set fire to  his own  clothes  and  house, and this could  hardly  be  called irrational it is more like verging on insanity. The  High  Court also felt it rather unsafe to rely  on  the testimony of the two defence witnesses because such evidence could always be procured.  It was also impressed by the fact that  there was no independent witness forthcoming  nor  was there  any  evidence showing that the accused was  taken  to Bhopal or Gwalior for treatment.  The High Court observed:               "Apart  from  this,  these  witnesses   merely               suggest that there was irrational behaviour on               the part of the accused.  But it has not  been               proved  that  he  entertained  any   homicidal               tendencies.  The evidence adduced is merely of               conduct not confirming to the accepted pattern               of   human   behaviour.   Such   evidence   is               inadequate to establish that there was such an               impairment  of  cognitive  faculties  of   the               accused as to render him legally insane." 256 With  respect, it is not necessary that every insane  person should  have homicidal tendencies.  In this case he  is  not charged for an offence involving homicide but arson. Although  the High Court discarded the medical evidence,  it took account of its own observations, when it stated               "We had an opportunity to observe the accused,               who  was  produced before us  by  the  learned               counsel, and he appeared to be a man of normal               understanding.  We also find that in answering               questions  which were put to him by the  court               under  S. 342, Cr.  P.C., the  accused  showed               intelligence and care." With  great  respect, these are  irrelevant  considerations. The  appeal  was heard on April 25, 1968, and  the  incident occurred  on January 22, 1965.  A person can surely  improve within three years. We  are inclined to agree with the conclusion arrived at  by the learned Magistrate.  We hold that the appellant has dis- charged the burden.  There is no reason why the evidence  of Shyam  Lal,  D.W. 1, and Than Singh, D.W. 2, should  not  be believed.   It  is  true  that they  are  relations  of  the appellant, but it is the relations who are likely to  remain in intimate contact.  The behaviour of the appellant on  the day of occurrence, failure of the police to lead evidence as to his condition when the appellant was in custody, and  the medical  evidence  indicate that the  appellant  was  insane within the meaning’ of S. 84, I.P.C. We accordingly allow the appeal and acquit the appellant  of the offence under S. 435, I.P.C., because at the time of the incident he was a person of unsound mind within the  meaning of  s.  84 of the Indian Penal Code.  His  bail  bond  shall stand cancelled. G.C.                      Appeal allowed. 257