Gopalakrishnan Nair v. State — 1953 DIGILAW 170 (KER)

Judgment :- 1. This is an appeal against a conviction and sentence for committing a murder. The appellant Raghavan Pillai Gopalakrishnan Nair (hereinafter referred to as the accused) was tried before the learned Additional Sessions Judge of Trivandrum for the Commission of an offence of murder, punishable under S. 301, Travancore Penal Code, in that he caused the death of one Jacob P. John, then a student of the junior Intermediate Class of the Intermediate College, Trivandrum, by a brutal attack on him with a pen-knife on the morning of 17.2.1950 when the said John was proceeding to the College along the main road in front of the accused's house. The occurrence was at about 9.15 A.M. and John sustained not less than seven incised wounds. As a result of those injuries he died at 2 P.M. on the same day while under treatment in the Trivandrum General Hospital. The learned judge held the trial with the aid of four assessors and three of them were of the opinion that the accused was not guilty. In legal parlance their opinion was that he was 'Guilty but insane'. The other assessor took the contrary view that the plea of insanity was not proved and that the accused was guilty of murder. The learned judge agreed with the minority opinion, found the accused guilty of murder punishable under S. 301 of the Travancore Penal Code and sentenced him to undergo rigorous imprisonment for life. The appeal is against the said conviction and sentence. 2. The learned Additional Sessions Judge has summarised the prosecution case as follows in the opening paragraph of his judgment:? "The accused and the deceased were neighbours. The deceased Jacob P. John was a student in the junior Intermediate Class and the accused was an employee in the Telephone Department. On the morning of 17.2.1950, at about 9.15 A.M. the deceased started from his house for the College, along with a friend of his one Alexander Thomas. When they advanced a few yards on the road and reached near the Easwaravilasam junction the accused who was standing in front of his house came from behind and stabbed Jacob John. He raised a cry and fell down. His parents and others came out to the road where they saw the boy in a pool of blood. When they advanced a few yards on the road and reached near the Easwaravilasam junction the accused who was standing in front of his house came from behind and stabbed Jacob John. He raised a cry and fell down. His parents and others came out to the road where they saw the boy in a pool of blood. The injured boy was at once removed in a car to the Cantonment Police Station and from there he was taken to the General Hospital for medical aid, Jacob John died at about 2 P.M. in the General Hospital. The Police registered a case against the accused and charged him before the local Magistrate for murder. A preliminary enquiry was conducted by the Magistrate and the prisoner has been committed to this Court to stand his trial for murder." There is ample evidence in the case to establish beyond doubt that Jacob P. John died at 2 PM on 17.2.1950 as a result of the injuries he sustained on the morning of that day at the hands of the accused. Not long after John left his house for the college in the company of PW. 9, John's father (PW.1) heard a cry from the main Road in front of their house and when he came out into the road hurriedly he saw his son lying wounded on the road side and the accused leaving the place after inflicting one stab. PWs. 2 and 4 are two neighbouring shopkeepers who heard a cry from the road while they are opening their shops and when they turned round they saw John lying wounded on the road and they also saw the accused inflicting five or six stabs on John with a pen-knife. PW. 9 and John usually used to go to the college together and on that day when the attack was made PW. 9 was along with John, but he took to his heels the amount he saw the assailant aim a stab on John from behind. He was not able to identify the assailant. PW. 3 came to the scene of the occurrence hearing the victim's cries. He saw the accused going away to his house from the place but he did not see any stabbing. PW. 5 had seen the accused standing at his (the latter's) gate some time prior to the occurrence at about 9 am. PW. 3 came to the scene of the occurrence hearing the victim's cries. He saw the accused going away to his house from the place but he did not see any stabbing. PW. 5 had seen the accused standing at his (the latter's) gate some time prior to the occurrence at about 9 am. To connect the appellant with the occurrence besides all these evidence we have also the statement the deceased gave before the Police at 10.30 am and the dying declaration he made before the City Magistrate at 11A.M. Exts. G and H, the wound and the postmortem certificates, show that there were not less than seven incised wounds of which there had pierced the lungs and a fourth one, the kidney. The medical evidence is clear and definite that John's death was due to these injuries. The lower court unhesitatingly found that the accused inflicted the injuries as a result of which John died. The accused did not dispute the fact either and we see no reason whatever for not agreeing with the lower court's above conclusion. 3. Before the Committing Magistrate's Court as also at the Sessions trial the accused stated that he had not committed any offence. At the trial he added he did not remember what happened. The plea raised on his behalf both before the trial court and in the appeal before us was that by reason of unsoundness of mind the accused was incapable of knowing the nature of the act that he was committing or that it was either wrong or contrary to law. In other words he pleaded the exception recognised by S. 73 of the Travancore Penal Code corresponding to S. 84 of the Indian Penal Code. The learned judge after elaborately discussing the evidence repelled the contention. It is for us now to examine whether the learned judge's conclusion about it is wrong. 4. As a preliminary to the discussion of the evidence bearing on the question it is advantageous to recall to our minds certain well-established propositions pertaining to the defence of insanity in answer to a criminal charge. In the first place to establish that defence it must be shown that the mental condition referred to in S. 84 existed at the time when the act was committed. In the first place to establish that defence it must be shown that the mental condition referred to in S. 84 existed at the time when the act was committed. This is self evident from the Section itself which is 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." Decided cases have repeatedly emphasised that the point should not be overlooked. As illustrations reference may be made to the cases in Bagga v. Emperor, AIR 1931 Lah. 276; Ram Prakash v. The State, LIII (1951) Punjab Law Reports 15; and In re Govindaswami, AIR 1952 Mad. 174. It must be clearly proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was committing, or that what he was doing was either wrong or contrary to law. Secondly "every person is presumed to be sane unless or until the contrary is proved". Therefore everybody is responsible if he breaks the law unless it is proved that he was insane. The words in the quotation are from Mr. Justice Finne More's Summing up in the recent Christie trial in England. The learned judge said this while referring to the M'Naughten Rules on which S. 84 of the Indian Penal Code is founded. Among Indian decisions which deal with this aspect reference need not be made only to a recent Madras decision in In re Kulandai Thevar, AIR 1950 Mad. 592 where referring to the decision in Emperor v. Gedka, AIR 1937 Patna 363 Govinda Menon, J. (Basheer Ahmed Sayeed, J. concurring) said: "The learned judges there have exhaustively considered the applicability of S. 84, Penal Code, to similar cases and holding that S. 84 is founded upon the well-known doctrine of English Law laid down in the Mc. 592 where referring to the decision in Emperor v. Gedka, AIR 1937 Patna 363 Govinda Menon, J. (Basheer Ahmed Sayeed, J. concurring) said: "The learned judges there have exhaustively considered the applicability of S. 84, Penal Code, to similar cases and holding that S. 84 is founded upon the well-known doctrine of English Law laid down in the Mc. Naughten's case were of opinion that a person is presumed to be responsible for his action unless the kind of insanity referred to in S. 84 is proved." The third proposition to be remembered is that the burden of proving the existence of circumstances bringing the case within any of the recognised exceptions like insanity is on the accused persons. Indeed S. 105 of the Evidence Act contains in itself propositions 2 and 3 above. It reads: "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, 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." Illustration (a) to the section deals with a case of unsoundness of mind and reads: "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". Reported cases of the High Courts in India reveal some controversy as to whether the principle that an accused person is not required to establish an exception pleaded by him beyond reasonable doubt applies to cases where S. 105, Evidence Act applies. The Section says specifically that the burden lies on the accused person to prove any of the special or general exceptions laid down by the Penal Code and there are cases which say that the incidence of proof does not vary simply because the onus lies on the accused person. See Baswantrao Bajirao v. Emperor, AIR 1949 Nag. 66. It is pointed out in support of this view that Evidence Act seems to make a departure from the rule of English Law, because it uses the word 'prove' in S. 105. See Baswantrao Bajirao v. Emperor, AIR 1949 Nag. 66. It is pointed out in support of this view that Evidence Act seems to make a departure from the rule of English Law, because it uses the word 'prove' in S. 105. We need not enter into that controversy in this case and shall proceed on the basis that even in respect of a plea of unsoundness of mind it would be sufficient for an accused person to make out something like a prima facie and probable case. There is no proof whatever in this case that at the time of the commission of the offence the accused's state of mind was such that he did not know the nature of the act done by him or that he was doing what was either wrong or contrary to law. 5. We have said that both in the Committing Magistrate's Court as also in the Sessions trial the accused stated that he had not committed any offence and that at the latter stage he added he did not remember anything. Though the Committing Magistrate originally entertained some doubt as to whether the accused had a sound mind to be able to defend himself, the enquiry held under S. 464, Criminal Procedure Code, dispelled that doubt. From his statement before the Committing Magistrate's Court and from the statement he made before the Sessions Court he would appear to be a person in full possession of proper senses. Yet he did not put forward the defence under S. 84 IPC through his own mouth. We are not suggesting that that would debar him from seeking to avail himself of the defence put forward in the defence evidence and in the arguments before the trial court and before us. 6. Counsel for the defence attempted to substantiate the plea by contending that the cumulative effect of the evidence led in the case as to the antecedent unsoundness of mind of the accused, the medical evidence relating to the state of mind of the accused subsequent to the occurrence and the attendant circumstances of the commission of the occurrence clearly showed that the accused was entitled to the benefit of the exception enacted in S. 84. The lower court not only held that the evidence did not lead to any such inference but also that the defence had miserably failed to prove any antecedent insanity, that the medical evidence as to the subsequent insanity even if believed did not show the appellant to be legally insane and that the attendant circumstances showed really a guilty mind. We are in full agreement with this view. 7. To prove antecedent insanity the defence examined three witnesses but as observed by the lower court their evidence did not prove that the accused was at any time before the occurrence insane, even in the medical sense of the term, much less in the legal sense. For over five or six years he served in the military and for two years or more before the occurrence he was employed as a clerk in the telephone office at Trivandrum. A co-clerk examined as DW. 2 gave evidence that at any time before the occurrence he had not even heard that the accused was of an unsound mind. He was attending office even the day before the occurrence and it is quite unbelievable that if he had any trace of insanity he would have been allowed to continue in service. No doubt DW. 2 said that the accused was a man of irritable temper, a man of few words and that he was also rather indolent with regard to his work. Evidence shows that he was working under the immediate supervision of a Superintendent and it is not known why that Superintendent or any other officer was not called to give evidence instead of a clerk. DW. 3 professes to be a witch-doctor and his evidence is to the effect that he had treated the accused for some unknown malady brought about through witch-craft practised on him by some unknown person. He admitted he had no treatment for insanity and that he did not know the symptoms of insanity. His evidence does not impress us as true and it serves no useful purpose in the case. That was also the view of the lower court. DW. 4 is the appellant's father's elder brother and even he was not prepared to say that the accused was insane even as that term is understood in common parlance. His evidence does not impress us as true and it serves no useful purpose in the case. That was also the view of the lower court. DW. 4 is the appellant's father's elder brother and even he was not prepared to say that the accused was insane even as that term is understood in common parlance. He has said that the accused was of an irritable temper and a bit obstinate and subject to some delusions. As observed by the lower court he is far too interested in the accused for his testimony to be acted upon by a court. All evidence as to antecedent insanity has to be thoroughly discredited in view of the attempt the defence made to suggest in the cross-examination of some prosecution witnesses and also to prove through DW. 4 that well known doctor of Trivandrum like Dr. Kesavan Nair and Dr. Bhaskara Pillai had treated the appellant for insanity. If they had treated him or on account of the accused's ways they had found they could not treat him, what the defence should have done to establish its case of antecedent insanity was to examine those doctors and not seek to establish it through a quack like DW. 3 or through other interested evidence. We therefore fully share the lower court's view that the case of antecedent insanity remained completely unproved. 8. As for insanity after the occurrence the defence entirely relied upon the evidence of DW.1 and Ext. I. On a requisition from the Committing Magistrate, DW.1 who is a Deputy Surgeon in the Trivandrum General Hospital kept the appellant under observation from 5.3.1950 to 4.4.1950 and after the period of that examination he issued a certificate (Ext. I) on 4.4.1950 declaring the appellant to be of unsound mind and as a proper person to be taken charge of and detained under care and treatment. As pointed out by the lower court, Ext. I and the testimony of DW.1 would at best show that the appellant was found to be medically insane while he was under observation. The lower court has gone to the extent of saying that it was all feigned. Unfortunately the evidence of DW.1 at the Sessions trial betrays an inclination to go back upon the evidence he gave before the Committing Magistrate (Ext. S) and the recantation was every time in a manner favourable to the accused. The lower court has gone to the extent of saying that it was all feigned. Unfortunately the evidence of DW.1 at the Sessions trial betrays an inclination to go back upon the evidence he gave before the Committing Magistrate (Ext. S) and the recantation was every time in a manner favourable to the accused. It was after DW.1 was examined before the Committing Magistrate that the latter decided to proceed with the enquiry holding that the appellant was in a fit condition to stand his trial. DW. 1's evidence shows that the witness understood the accused to have been under some partial delusions but whatever his condition might have been while under observation the accused's statement before the Committing Magistrate and that at the Sessions trial show, as mentioned earlier, that he was a man of normal frame of mind. 9. Further there are also indications in Ext. I and in the deposition DW.1 gave before the Committing Magistrate (Ext. S) to show that when the accused inflicted the stab-wounds on the victim he knew what he was doing. In Ext. I it is seen stated thus: "When asked why he was brought to the hospital he says he stabbed his neighbour. When asked why he did so, he says: "his neighbours despised him and were making contemptuous gestures and remarks as he was walking along the road and every day his neighbours were telling each other that he was mentally unsound and that his reputation was lost on account of his neighbours." These passages show that when he stabbed the deceased the accused knew what he was doing and that what he did was actuated by a definite motive or a set purpose. The following passages from Ext. S fortifies the above inference: "When he stabs does he know he stabs? (Q). Yes. He himself told me that he stabbed his neighbour (A). Was he able to understand the result of his action, i.e., that the stab would wound the victim and that the wound might cause the victim's death? (Q). Yes, he knew. Was his state of mind such that he could know that he was doing an unlawful act? (A). Yes, he could have known it. (Ans). Was there any impairment of the cognitive faculty of his mind when the observation was made (Q). No. (A). Was his delusion partial or complete? (Q). (Q). Yes, he knew. Was his state of mind such that he could know that he was doing an unlawful act? (A). Yes, he could have known it. (Ans). Was there any impairment of the cognitive faculty of his mind when the observation was made (Q). No. (A). Was his delusion partial or complete? (Q). He said his delusion was in respect of his wife, servant maid, wife's people and neighbours and not in respect of other people (A). He was suffering from a sense of injury to his reputation from his neighours". (We have translated into English questions 2 and 3 and the answers thereto. In the deposition these questions and answers are recorded in Malayalam). Questions 1 to 3 and their answers, it is clear had reference to the occurrence. Before the Sessions Court Dw.1 attempted to explain away those answers by stating that they had reference to the state of mind of the appellant during the period of the observation. The answers themselves be lie the explanation. Anyhow DW.1 admitted having made those answers and from the context of those answers it is for us to decide the point of time they relate to. 10. A statement by PW.1 in his evidence would also show that at the time of the commission of the crime the accused knew what he was doing. When hearing the cries of his son, PW.1 ran up to the place of the occurrence, the appellant asked him to keep off the place lest he should also meet with the same fate as his son. The lower court has believed that statement of PW.1 and we see no reason to take a different view. 11. These pieces of evidence clearly show that when he stabbed the deceased the accused knew what he was about. There is no reason to think he did not know he was doing a wrong or what was contrary to law. "The law recognises nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently clear to apprehend what he is doing, he must always be presumed to intend the consequences of the action he takes". Jalal v. Emperor (1929) 30 CLJ 1024 (Lahore). To the same effect are also the decisions in Mani Ram v. Emperor, AIR 1927 Lah. Jalal v. Emperor (1929) 30 CLJ 1024 (Lahore). To the same effect are also the decisions in Mani Ram v. Emperor, AIR 1927 Lah. 52, Emperor v. Gedka, AIR 1937 Pat. 363 and Ghungar Mal v. Emperor, AIR 1939 Lahore 355. The decision in (AIR 1950 Mad. 692) already cited in another context contains the following significant passage:? "If he (the accused) is conscious of the nature of his act, he is presumed to have been conscious of its criminality". Reference is made in that case to AIR 1927 Lah. 52 and as stated earlier also to 1937 Pat. 363. 12. Over and above the pieces of evidence referred to above and the presumption arising therefrom reference may also be made in this context to certain attendant circumstances. The appellant approached the victim of his attack from behind. He was waiting or standing at his gate when John and PW. 9 went past that place on their way to the college. They were proceeding westwards along the main road and their houses were to the east of the appellant's house. Stealthily the accused approached his victim from behind and gave the stabs. Again, when hearing the cries of John people gathered at the scene of the crime, the accused quietly returned to his house. When the police constable who arrested him two hours afterwards went to his house the accused produced before him the blood-stained knife with which he stabbed John. The mahazar for its seizure was also signed by him. Though there were traces of blood on the table where the knife had been placed and the veranda in front of the room where the accused was sitting and other nearby places, the shirt and mundu he was wearing were absolutely clean without any blood stains. The lower court's inference that he had changed the dress worn by him at the time of the occurrence is in our opinion not an unreasonable one. To our minds these circumstances go to strengthen the inference that the accused knew the nature of the act he was committing and that it was wrong and opposed to law. The lower court's inference that he had changed the dress worn by him at the time of the occurrence is in our opinion not an unreasonable one. To our minds these circumstances go to strengthen the inference that the accused knew the nature of the act he was committing and that it was wrong and opposed to law. To quote again from the summing up of Justice Finne More, in the Christie case: "To come within the law relating to insanity it was necessary to establish one of two things; either that the person did not know the nature and quality of his act - that was, he did not know what he was doing-or, if he did know that he did not know it was wrong. Either of those was enough." Our finding which is one in agreement with that of the court below is that the appellant knew what he was doing and also knew it was wrong. 13. It necessarily follows from the above that the appeal must fail. We are not unaware that the M'Naughten Rules which formed the basis for S. 84 have been the subject of criticism from time to time. The latest criticism would seem to have come from the Royal Commission on Capital Punishment presided over by Sir Earnest Gowers. We are however concerned with the administration of law as it stands and we feel that the discussion cannot be wound up better than by quoting yet another passage from the summing up in the Christie Trail: "If the prosecution's evidence were right it proved that Christie killed his wife with a stocking, by strangulation. That was murder and it could not be anything else. The defence accepted all that, but they claimed that Christie was insane. A plea of that sort required careful consideration. It was not difficult for a person to say when he had no other defence 'I was mad when I did Wand "I did not know what I was doing', and so on. One often used the word 'insane' or 'mad' when one was talking about a man who had done something crooked, dangerous or even criminal. One might say'he must have been crazy'. That was not what was meant when one considered a man as being insane in law so as to escape the consequences of his otherwise criminal act. One often used the word 'insane' or 'mad' when one was talking about a man who had done something crooked, dangerous or even criminal. One might say'he must have been crazy'. That was not what was meant when one considered a man as being insane in law so as to escape the consequences of his otherwise criminal act. Nor was it enough to say 'The accused is a poor weakling, a poor immature underdeveloped sort of person, or a person of low mental standard or low intelligence. Neither was it enough to say that a man was abnormal or odd. There were abnormal and odd people in the world, but no one would dream of saying they were insane." Similar views are seen expressed in AIR 1949 Nagpur 66 cited earlier. Hidayathullah, J. with whom Bose J. (now of the Supreme Court) concurred, quoted in that case the following passage from Russel "On Crimes":? "In Arnold's case, 16 St. Tr. 764 (765) Tracy, J. told the jury that where a person has committed a great offence, the exemption of insanity must be clearly made out before it is allowed; that it is not every kind of idle and frantic humour of a man, or something unaccountable in his actions, which will show him to be such a mad man as is to be exempted from punishment; but that where a man is totally deprived of his understanding and memory, and does not know what he is doing, any more than an infant or a wild beast, he will properly be exempted from the punishment of the law." and proceeded to state: "The same is the opinion of many eminent judges mentioned by Russell on page 18 et seq of the book. In particular I refer to the opinions of Tindal, C.J. in R v. Vaughan, (1844) 1 Cox. 80, Maule, J. in R v. Higginson (1843) 1 C and K 129. However, taking the evidence for what it is worth, it only shows that the accused was erratic in his conduct or perhaps slightly unbalanced". Even if the entire evidence as to the accused's alleged insanity is taken at its face value it does not take his case beyond what is stated in the last passage quoted above or in the third quotation from Mr. Justice Finne More's summing up. 14. Even if the entire evidence as to the accused's alleged insanity is taken at its face value it does not take his case beyond what is stated in the last passage quoted above or in the third quotation from Mr. Justice Finne More's summing up. 14. Affirming the decision of the learned Additional Sessions Judge we dismiss the appeal. We do not consider this to be a case where we should recommend any action being taken by the State Government under S. 401, Criminal Procedure Code. 15. The case was first heard by us on 28.9.1953. The circumstances which prevented it being disposed of earlier are set out in a note which will form an annexure to this judgment. (Annexure omitted) Dismissed.