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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: AHMADULLAH.

DATE OF JUDGMENT: 25/01/1961

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SARKAR, A.K.

CITATION:  1961 AIR  998            1961 SCR  (3) 583  CITATOR INFO :  R          1971 SC 778  (2)  F          1983 SC 855  (16)

ACT: Murder-Plea  of unsoundness of  mind-Crucial  time-Acquittal High  Court’s   refusal to  reverse,  if  justifiable-Indian Penal Code, ss. 84, 302.

HEADNOTE: The  High  Court  affirmed  an order  of  acquittal  of  the respondent on a charge of murder under s. 302 of the  Indian Penal  Code passed by the Sessions judge on the ground  that the  accused was of unsound mind.  The prosecution case  was that  the accused committed the murder of his  mother-in-law against  whom  he had borne ill-will, by severing  her  head from  her  body while she was asleep at dead of  night.   He made  a confession of the crime but a plea of  insanity  was taken  at  the trial.  On appeal with special leave  by  the State : Held, that the crucial point of time at which unsoundness of mind  should  be established is the time when the  crime  is actually (1)  I.L.R. [1938]2 Cal, 337. 75 584 committed,  the burden of proving which lies on the  accused in  order to entitle him to the exemption provided under  S. 84 of the Indian Penal Code. It is not sufficient only to prove that the accused suffered from  an  "epileptic type of insanity" before or  after  the commission of the crime. Henry Perry, 14 Cr.  Appeal Rep. 48, followed. There was nothing on the record of the instant case to  show that at the moment when the crime was committed the  accused was  capable of knowing that what he was doing was wrong  or contrary  to  law  and as such he was  not  entitled  to  an acquittal under s. 84 of the Indian Penal Code. Refusal by the High Court to interfere with an acquittal  in the proved circumstances of the case could not be  justified under any rule as to " impelling reasons ".

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 120  of 1960. Appeal  by special leave from the judgment and  order  dated February 28, 1958, of the Madhya Pradesh High Court (Gwalior Bench), in Criminal Appeal No. 3 of 1957. I. N. Shroff, for the appellant. The respondent did not appear. 1961.  January 25.  The Judgment of the Court was  delivered by AYYANGAR, J.-This is an appeal by special leave by the State of  Madhya  Pradesh  against  the  dismissal  of  an  appeal preferred by it to the High Court of Madhya Pradesh (Gwalior Bench)  which  declined to reverse the  order  of  acquittal passed  by  the Sessions Judge holding  the  respondent  not guilty of an offence under s. 302 of the Indian Penal  Code. The  ground  of acquittal by the Sessions Judge,  which  was concurred  in by the High Court was that the respondent  was of  unsound mind at the time of the commission of the  crime and  so  was  entitled to an acquittal under s.  84  of  the Indian Penal Code. There  is very little dispute about the facts or even  about the  construction  of  s. 84 of the Code  because  both  the learned Sessions Judge as well as the learned Judges of  the High  Court  on appeal have held that the crucial  point  of time at which the unsoundness of 585 mind,  as defined in that section, has to be established  is when  the act was committed.  It is the application of  this principle  to the facts established by the evidence that  is the ground of complaint by the appellant-State before us. Section 84 of the Indian Penal Code which was invoked by the respondent successfully in the Courts below runs in these terms:               "  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." It  is  not  in dispute that the burden of  proof  that  the mental condition of the accused was, at the crucial point of time,  such  as  is described by this section  lies  on  the accused  who claims the benefit of this exemption  (vide  s. 105, Indian Evidence Act, Illustration (a)). In order to appreciate the point raised for our decision  it is necessary to refer to the findings of the Sessions  Judge which  were in terms approved by the learned Judges  of  the High  Court.  Before we do so, however, we shall  narrate  a few facts regarding which there is no dispute: The  deceased Bismilla was related to the accused-respondent as the mother of  his  wife  Jinnat whom he  had  divorced.   The  accused nurtured  a grievance against his mother-in-law for  matters it  is unnecessary to set out.  Bismilla went to bed in  her own  house  on  the night of September  28,  1954.   On  the morning  of the next day the body of Bismilla was  found  by her husband lying in a pool of blood on the cot on which she was  sleeping with the head missing.  The First  Information Report  was immediately lodged by the son of  the  deceased. The police were informed that the respondent bad borne  ill- will  towards Bismilla and thereafter the Sub-Inspector  who was in-charge of the investigation sent for the  respondent. The  respondent  admitted having committed  the  murder  and stated  that  be had put the head of Bismila and  the  knife

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with which it had been severed from the body in a  cloth-bag which  he  had hid in an underground cell in  the  furniture shop 586 of his father.  The respondent was taken to that shop  where he took out the articles in the presence of Panch-witnesses. He  also took out a torch from the cash-box of the shop  and handed  it  over to the police with the statement  that  the torch had been used by him on the occasion of the murder  to locate  the deceased in the darkness.  The  accused  further stated the manner in which he managed to scale over the wall of  the house of the deceased, how he gained  entrance  into the  room,  how  he found her asleep on a  cot  and  how  he severed the head from the trunk and carried the former  away and  hid  it at the place from which he took  it  out.   The respondent  was  produced  before  the  District  Magistrate before  whom he made a confessional statement  reciting  all the  above facts.  He was thereafter committed to stand  his trial  before the Court of Sessions Judge, Gwalior, for  the offence under s. 302 of the Indian Penal Code.  We have only to   add  that  the  confession  which   was   substantially corroborated by other evidence was never withdrawn though in his  answers to the questions put to him by  the  committing magistrate  and  by the Sessions Judge under s. 342  of  the Criminal   Procedure   Code  he   professed   ignorance   of everything. On  behalf  of  the  defence, in  support  of  the  plea  of unsoundness  of mind three witnesses were examined,  two  of them being medical men.  The first witness Mahavir Singh was the District Civil Surgeon and Superintendent of the  Mental Hospital.  He spoke of having treated the accused in  August 1952 as a private patient.  His deposition was to the effect that the accused had an epileptic type of insanity, the last time  that he saw him being in August 1952, i.e.,  over  two years  before  the  date of the  occurrence.   His  evidence therefore cannot be very material-not to say decisive-on the question  as to whether at the moment when the  offence  was committed the accused was insane as defined by s. 84 of tile Code  or  not.  The other medical witness examined  for  the defence  was the Superintendent of the Mental  Hospital  who had examined the accused on and after November 18, 1954,  i. e., nearly two months after the occurrence.  His 587 deposition  also  was  to the effect that  the  accused  was suffering  from epileptic insanity.  The witness  testified, that  at the first stage of the attack of a fit the  patient becomes spastic, that in the second stage the patient  would have convulsions of hands and feet and in the tertiary stage becomes unconscious and at the last stage the patient  might do  acts  like  sleep-walking.  Obviously  this  was  expert evidence  about the nature of the disease which  the  doctor stated the accused was suffering from, and not any  evidence relating to the mental condition of the accused at the  time of  the act.  The other witness who spoke about  the  mental condition of the accused was his father.  In his evidence he stated :               " The accused was in a disturbed state of mind               in the evening of September 28, 1954.  He  bad               not  taken food for two days.  When I went  to               the shop on the morning of September 29, 1954,               at  7-30  or  7-45 I  found  the  accused  was               unconscious  and that his hands and feet  were               stiffened.   Just then the police  came  there               and took away the accused." On  the  basis of this evidence the learned  Sessions  Judge

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after  correctly  stating the law that under s.  84  of  the Indian  Penal  Code  the  crucial point  of  time  at  which unsoundness of mind should be established, is the time  when the  act constituting the offence is committed and that  the burden of proving that an accused is entitled to the benefit of this exemption is upon him, summarised the evidence which had been led in the case in these terms:               "  The  next thing therefore  to  consider  is               whether  the accused was incapable of  knowing               the  nature  of the act.  The  fact  that  the               accused  went  at night to the  house  of  his               mother-in-law,  deliberately cut her head  and               brought it to his house is too obvious to show               that  the accused was capable of  knowing  the               nature of the act.  To put it differently, the               accused  while killing Bismilla was not  under               the impression that he was breaking an earthen               jar.  Even the learned counsel for the defence               laid  no  stress on this aspect  of  insanity.               He,  however, contended that the  accused  was               incapable  of knowing that what he  was  doing               was either wrong or contrary to law." 588 The learned Judge, however, rested his decision to acquit the accused on the following reasoning:                     "There  is  the circumstance  that  soon               after  the crime the accused was  admitted  to               the mental hospital and the Superintendent  of               the  Hospital  at  least  confirms  that   the               accused  suffers  from  epileptic  fits.   Now               epilepsy is a kind of disease which may  cause               insanity.  This is called epileptic  insanity.               In  this insanity the patient  commits  brutal               murders  without  knowing what he  was  doing.               The  accused  who suffered from  epilepsy  has               committed  a  brutal murder.   There  is  thus               ground  to believe that he may have  committed               this   murder   in   a   fit   of    epileptic               insanity.................. These. things  give               rise  to  the inference that the  accused  may               have committed the crime in a fit of  insanity               and without knowing that what he was doing was               either wrong or contrary to law. 1, therefore,               find  that  the accused  Ahmedullah  did  kill               Bismilla  by severing her head from  the  body               with a knife but that by reason of unsoundness               of mind he was incapable of knowing that  what               he was doing was wrong or contrary to law  and               that  he  is,  therefore, Dot  guilty  of  the               offence  of  murder with which he  is  charged               under  section  302, Indian Penal Code  and  I               direct that the said accused be acquitted." The learned Judge had definitely found that the accused knew the  nature  of the act he was doing, finding  which  as  we shall  presently point out, was concurred in by the  learned Judges  of  the High Court.  In the face of it  we  find  it rather  difficult  to sustain the reasoning upon  which  the last conclusion is rested on the facts of this case. From  this order of acquittal by the learned Sessions  Judge the  State filed an appeal to the High Court.   The  learned Judges  of  the High Court also  correctly  appreciated  the legal  position that to invoke the benefit of the  exemption provided  by  s.  84 of the Indian Penal Code  it  would  be necessary  to establish that the accused was, at the  moment of  the act insane.  The learned Judges, on this  aspect  of

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the case, said :               "  About  the  mental  condition   immediately               before  and after the crucial moment, we  have               the               589               circumstances,  the conduct of the  respondent               on the morning of the 29th and his  confession               given  on that afternoon.  By themselves  they               do   not   support  the   theory   of   mental               unsoundness  necessary for Section 84,  though               they   are   explicable,   consistently   with               epileptic  insanity.   The murder  itself  has               been committed with extraordinary cunning, and               attention  to  the most minute detail   It  is               certain  the respondent knew at that time  the               physical  nature of what he was doing; he  did               not  believe  that he was breaking  a  pot  or               cutting a cabbage, but was taking the life  of               a  human being which he says within 16  hours,               he  did for vindicating his honour.  In  fact,               the condition at the time of the confession is               one of elation rather than of depression or  a               black-out   ..................   The   learned               Sessions  Judge has held that  the  respondent               was in a fit of epileptic insanity on the 28th               night, when he killed his mother-in-law; it is               not clearly recorded, but it also seems to  be               his   finding  that  this  fit  of   epileptic               insanity  continued at least till the time  of               his  confession.   This  finding  is  not  one               without  any  evidence to support it,  or  one               that can be called perverse; still, it is  one               that could properly be arrived at, only if  it               is consistent with the observation made on the               respondent   immediately   after   the    29th               September, 1954." They proceeded to point out that there was no observation by medical experts soon after the act to enable an inference to be  drawn  as to the mental condition of  the  accused  just prior thereto.  After detailing the arguments on either side the learned Judges concluded:               "  Thus we have no evidence pointing  to  that               kind  and degree of mental unsoundness at  the               time  of the act as required by section 84  of               the  I.P.C.  ; but on the  defective  material               adduced, it would have been in my opinion,  an               unsatisfactory conclusion either way In a case               like   this  when  the  proved   facts   would               otherwise  support a conviction for murder  it               was for the defence to adduce evidence and  it               should, in principle, reap the consequence  of               any omissions in this regard," 590 From  these observations it would appear as if  the  learned Judges of the High Court were differing from the     learned Sessions Judge in his conclusion as regards the  application of section 84 to the facts of the present    case.They however, continued:               " The Sessions Judge was satisfied that the                     defence  has  discharged  the  onus   of               proving that at the time of the commission  of               the  offence  the  accused  was  mentally   so               unsound as not to know that the act was  wrong               and contrary to law.  Now it is for the  State               to  establish  in appeal that the  finding  is

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             perverse and that there are compelling reasons               why that decision should be reversed." and  it is on this ground that the learned Judges  dismissed the appeal by the State. We  find  ourselves  wholly  unable  to  concur  with   this conclusion or with the reasoning on which it is rested.  The learned  Judges failed to appreciate that the error  in  the judgment  of  the  Sessions Judge lay not  so  much  in  the implicit  acceptance of the testimony of the father  of  the accused-because he was obviously an interested witness,  and of this the appellant State could certainly and  justifiably complain-but in proceeding on a basis wherein inferences and probabilities  resting on assumptions were permitted  to  do duty  for  proved facts, which the statute  required  to  be established before the exemption under the section could  be claimed.   Refusal  to interfere with an  acquital  in  such circumstances could hardly be justified under any rule as to "  impelling  reasons " for interference even  assuming  the existence of such a rule.  The error in the judgment of  the High  Court  consisted in ignoring the fact that  there  was nothing on the record on the basis of which it could be said that at the moment of the act, the accused was incapable  of knowing that what he was doing was wrong or contrary to law. In  this  connection we might refer to the decision  of  the Court  of  Criminal Appeal in En, gland  in  Henry  Perry(1) where  also the defence was that the accused had been  prone to  have fits of epileptic insanity.  During the  course  of the argument Reading, C.J., observed : (z)  14 Cr.  Appeal Rep. 48. 591               "  The crux of the whole question  is  whether               this  man was suffering from epilepsy  at  the               time  he  committed the crime.   Otherwise  it               would  be a most dangerous doctrine if  a  man               could  say, ’I once had an epileptic fit,  and               everything that happens hereafter must be  put               down to that’.  " In dismissing the appeal the learned Chief Justice said:               "  Every  man is presumed to be  sane  and  to               possess  a sufficient degree of reason  to  be               responsible  for his acts unless the  contrary               is  proved.  To establish insanity it must  be               clearly proved that at the time of  committing               the  act  the party is  labouring  under  such               defect of reason as not to know the nature and               quality of the act which he is committing-that               is,   the  physical  nature  and  quality   as               distinguished  from the moral-or, if  he  does               know  the nature and quality of the act he  is               committing,  that he does not know that he  is               doing wrong...... There is, however,  evidence               of  a medical character before the  jury,  and               there  are  statements made  by  the  prisoner               himself,  that he has suffered from  epileptic               fits.   The  Court has had  further  evidence,               especially  in  the  prison  records,  of  his               having  had  attacks  of  epilepsy.   But   to               establish  that is only one step; it  must  be               shown  that  the  man was  suffering  from  an               epileptic   seizure  at  the  time   when   he               committed  the murders; and that has not  been               proved.  " We  consider that the situation in the present case is  very similar   and   the  observations   extracted   apply   with

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appositeness.   We consider that there was no basis  in  the evidence  before the Court for the finding by  the  Sessions Judge  that at the crucial moment when the accused  out  the throat  of  his mother-in-law and severed her head,  he  was from  unsoundness of mind incapable of knowing that what  he was  doing was wrong.  Even the evidence of the father  does not  support such a finding.  In this connection the  Courts below have failed to take into account the circumstances  in which  the killing was compassed.  The accused bore  illwill to Bismilla and the act was committed at dead of night  when he would not be seen, the accused 76 592 taking a torch with him, access to the house of the deceased being  obtained  by stealth by scaling over  a  wall.   Then again,  there was the mood of exaltation which  the  accused exhibited after he had put her out      of her life.  It was a  crime committed not in a sudden mood of insanity but  one that was preceded by careful  planning  and exhibiting  cool calculation  in execution and directed against a person  who was considered to he the enemy. The  appeal  is therefore allowed, the  order  of  acquittal passed  against  the respondent set as de and in  its  place will be substituted a finding that the respondent is  guilty of  murder  under s. 302 of the Indian Penal Code.   In  the normal  course  the proper punishment for  the  heinous  and premeditated  crime committed with -inhuman brutality  would have been a sentence of death.  But taking into account  the fact  that  the accused has been acquitted by  the  Sessions Judgean  order which has been affirmed by the High Court  we consider  that  the  ends  of justice would  be  met  if  we sentence the accused to rigorous imprisonment for life.   It is needless to add that the State Government will take steps to  have the accused treated in an asylum until he is  cured of his illness, if this still continues. Appeal allowed.