Bhikari Vs. State of Uttar Pradesh
[1965] INSC 48 (25 February 1965)
25/02/1965 MUDHOLKAR, J.R.
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
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
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 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 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 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 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 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.
Back
