PRATAPGIRI SHIVGIRI v. STATE — 1963 DIGILAW 101 (GUJ)

J. B. MEHTA, J. ( 1 ) NOW only two points have been urged by Mr. Shah on behalf of the accused:-- (1) the plea of insanity based on section 84 of the Indian Penal Code and (2) the plea of grave and sudden provocation based on exception I to section 300 of the Indian Penal Code. ( 2 ) ON the first point Mr. Shah has urged before us that even though section 105 of the Evidence Act raises a presumption against the accused and there is a burden on him to rebut the presumption of cases where he raises the plea of the said general or special exception the said burden must be deemed to have been discharged by merely raising a probability of insanity or by a bare explanation which was merely plausible. That is in such cases according to Mr. Shahs contention a reasonable doubt would be created whether the act was done with the requisite intention or knowledge which is one of essential ingredients of the offence of murder. Now the legal impact of this provision on the question of burden of proof has been considered by the Supreme Court in the case of K. M. Nanavati v. State of Maharashtra A. I. R. 1962 S. G 605 at page 616 paragraph 18. The relevant observations areas under:--IN India as it is in England there is a presumption of innocence in favour of the accused as a general rule and it is the duty of the prosecution to prove the guilt of the accused to put it in other words the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the general exception in the Indian Penal Code or any special exception or proviso contained in any other part of the Penal Code or in any law defining an offence sec 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions that is the Court shall regard the non-existence of such circumstances as proved till they are disproved. An illustration based on the facts of the present case may bring out the meaning of the said provision. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions that is the Court shall regard the non-existence of such circumstances as proved till they are disproved. An illustration based on the facts of the present case may bring out the meaning of the said provision. The prosecution alleges that the accused intentionally shot the deceased but the accused pleads that though the shots emanated from his revolver and hit the deceased it was by accident that is the shots went off the revolver in the course of a struggle in the circumstances mentioned in sec. 80 of the Indian Penal Code and hit the deceased resulting in his death. The Court then shall presume the absence of circumstances bringing the case within the provisions of sec. 80 of the Indian Penal Code that is it shall presume that the shooting was not by accident and that the other circumstances bringing the case within the exception did not exist but this presumption may be rebutted by the accused by adducing evidence to support his plea of accident in the circumstances mentioned therein. The presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is charged that burden never shifts. The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under sec. 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:- (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:- (Sections 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:- In the first case the burden of proving the ingredients or some of the ingredients of the offence as the case may be lies on the accused. In the second case the burden of bringing the case under the exception lies on the accused. 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. An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of sec. 300 of the Indian Penal Code the prosecution has to prove the ingredients of murder and one of the ingredients of that offence is that the accused intentionally shot the deceased the accused pleads that he shot at the deceased by accident without any intention or knowledge in doing of a lawful act in a lawful manner by lawful means with proper care and caution:- the accused against whom the presumption is drawn under sec. 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in sec. 80 of the Indian Penal Code may adduce evidence to rebut the presumption. That evidence may not be sufficient to prove all the ingredients of sec. 80 of the Indian Penal Code but may prove that the shooting was by accident of 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 section 300 Indian Penal Code of at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder. In that event though the accused failed to establish to bring his case within the terms of section 80 of the Indian Penal Code. the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. In that event though the accused failed to establish to bring his case within the terms of section 80 of the Indian Penal Code. the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. 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. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence indeed the evidence though insufficient to establish the exception may be sufficient to negative one or more of the ingredients of the offence". The Supreme Court further observed at p. 618 that observations of Viscount Sankey L. C. in Woolmington v. Director of Public Prosecutions1935 A. C. 462 at page 481 were not in conflict with the opinion expressed by it. These observations were:--"but while the prosecution must prove the guilt of the prisoner there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt he is not bound to satisfy the jury of his innocence. . . . . Throughout the web of the English Criminal Law one golden thread is always to be seen it is the duty of the prosecution to prove the prisoners guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner as to whether the prisoner killed the deceased with a malicious intention the prosecution has not made out the case and the prisoner is entitled to an acquittal. Further proceeding it was observed -As in England so in India the prosecution must prove the guilt of the accused i. e. it must establish all the ingredients of the offence with which he is charged. Further proceeding it was observed -As in England so in India the prosecution must prove the guilt of the accused i. e. it must establish all the ingredients of the offence with which he is charged. As in England so also in India the general burden of proof is upon the prosecution and if on the basis of the evidence adduced by the prosecution or by the accused there is a reasonable doubt whether the accused committed the offence he is entitled to the benefit of doubt. In India if an accused pleads an exception within the meaning of sec. 80 of the Indian Penal Code there is a presumption against him and the burden to rebut that presumption lies on him. In England there is no provision similar to sec. 80 of the Indian Penal Code but Viscount Sankey L. C. makes it clear that such a burden lies upon the accused if his defence is one of insanity and in a case where there is a statutory exception to the general rule of burden of proof. Such an exception we find in section 105 of the Indian Evidence Act. ( 3 ) THEREFORE in cases covered by categories I and 2 mentioned by the Supreme Court in Nanavatis case where the burden of proof of some ingredients of the offence itself is on the accused or where the circumstances that attract the exception do not touch any of the ingredients of the offence because of a specific statutory provision and exception is created to the general rule of burden of proof. In such cases notwithstanding the general rule of burden being on the prosecution to prove the offence the burden of proving the absence of that particular ingredient or absence of the special circumstances so as to bring his case under the exception will be on the accused. It is only in the third category of cases where the proof of some of the many circumstances required to attract the exception would have a necessary impact on the proof of the ingredient of the offence that a further question has to be considered whether the evidence though insufficient to establish the exception was sufficient to negative one or more ingredients of the offence. Section 80 was referred to as an apposite illustration for this purpose. Section 80 was referred to as an apposite illustration for this purpose. Under section 84 however the unsoundness of mind has to be such as would make the offender incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to law. In such a case the effect of section 105 of the evidence Act is to throw the burden of proof on the accused that he had no requisite knowledge and the Court shall presume that he had the requisite knowledge. Thus the burden of proof of absence of one of the essential ingredients of the offence is cast on the accused and the case is covered under the 1st category and not under the 3rd category of cases envisaged by the Supreme Court. The provisions of section 84 are in substance the same as those laid down by the House of Lords in Mcnaughtons case the famous pronouncement of the law on the question of insanity in cases of murder. Even in England where there is no provision like section 105 of the Evidence Act as observed by Viscount Sankey L. C. in Woolmingtons ease (1935 A. C. 462 at page 475 ). In Mcnaughtons case the onus is definitely and exceptionally placed upon the accused to establish such a defence. This position was specially noticed in the concluding words in the above quotation of Nanavatis case which are put in italics. It is clear that the burden of proof is on the accused if the defence is one of insanity. ( 4 ) THE degree of proof required in such cases for rebutting such a presumption of law has been laid down by the Supreme Court in the case of Dhanvantrai Balwantrai Desai v. The State of Maharashtra 65 Bom. L. R. 332 at page 338. No doubt it was a case under section 5 of the Prevention of Corruption Act 1947 but the principle there laid down as regards the burden of proof would equally apply in cases where the expression shall presume has been used. Shall presume has been defined in section 4 of evidence Act. Whenever it is directed by this Act that the Court shall presume a fact it shall regard such fact as proved unless and until it is disproved. Shall presume has been defined in section 4 of evidence Act. Whenever it is directed by this Act that the Court shall presume a fact it shall regard such fact as proved unless and until it is disproved. In Dhanvantrais case it has observed:-"the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under sec. 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable It must further be shown that the explanation is a true one. The wordsunless the contrary is proved which occur in this provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless therefore the explanation is supported by proof the presumption created by the provision cannot be said to be rebutted". It has also been observed in that case-"a presumption of law cannot be successfully rebutted by merely raising a probability however, reasonable, that the actual fact is the reverse of the fact which is presumed. Something more than raising a reasonable probability is required for rebutting a presumption of law. The bare word of the appellant is not enough and it was necessary for him to show that upon the established practice his explanation was so probable that a prudent man ought in the circumstances to have accepted it". Mr. Shah tried to suggest that this decision was on the special wording of the section 5 of the Prevention of Corruption Act 1947 But he failed to notice that those observations would equally apply wherever there is the presumption of law raised by the use of the words shall presume which would have the same effect as the words unless the contrary is proved which occur in the said section 5 of the Prevention of Corruption Act 1947 In view of this settled law we cannot accept the contention of Mr. Shah as it is clear that the presumption would not be rebutted by merely raising a probability of insanity or by a plausible explanation. ( 5 ) THE next question is what constitutes legal insanity as distinguished from medical insanity. It is the insanity of the extreme kind indicated in sec. 84 of I. P. C. which exempts one from criminal liability. Such exemption is available under sec. 84 of the Indian Penal Code where the insanity produces an incapacity (1) to know the nature of the act or (2) to know that what is done is either wrong or contrary to law. The test evolved in the leading case of Queen Empress v. Kader Nasyer Shah I. L. R. 23 Cal. 604 which has been repeatedly followed is as under:--"it is only that unsoundness of mind which materially impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility the nature and the extent of the unsoundness of mind required being such as would make the offender incapable of knowing the nature of the act or that he is doing what is wrong or contrary of law". Three instances of the unsoundness of mind of this description were also given:--"a person strikes another and in consequence of an insane delusion thinks he is breaking a jar. Here he does not know the nature of the act. Or he may kill a child under an insane delusion that he is saving him from sin and sending him to heaven. Here he is incapable of knowing by reason of insanity that he is doing what is morally wrong. Or he may under insane delusion believe an innocent man whom he kills to be a man that was going to take his life in which case by reason of his insane delusion he is incapable of knowing that he is doing what is contrary to Paw of the land". In the answer No. 4 in Mcnaughtons case the nature of delusion was further considered as under:--FOR example if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life and he kills that man as he supposes in self defence he would be exempt from punishment. In the answer No. 4 in Mcnaughtons case the nature of delusion was further considered as under:--FOR example if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life and he kills that man as he supposes in self defence he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune and he killed him for such supposed injury he would be liable to punishment. (Russell on Crime 1958 Eleventh Edition at page 117 ). Therefore a distinction is always drawn between delusions affecting cognitive faculties and insane impulses in which cognitive faculties remain unimpaired so far as could be judged from the acts and words of the accused. Further it is consistently held that a crime is not excused by its own atrocity. One must look outside the act for the evidence as to how much the accused knew about it. Therefore on one hand the exemption is allowed in cases of such delusions where his cognitive faculties were impaired as in the case of Ashiruddin Ahmed v. The King A. I. R. 1949 Cal. 182 where the accused in his dream was commanded by someone in paradise to sacrifice his young son and the next morning he killed him in a mosque or as in the case of Kanbi Kurji v. The State of Gujarat (1960) 1 G. L. R. 27 where the accused was under a delusion that he was Arjun and his wife and son were Bhangadi and Karna and he killed them in imagined self defence of himself and his imaginary family. But on the other hand where insanity did not reach that stage and his cognitive faculty retained unimpaired as in the case of sudden irresistiblehomicidal impulses the defence was negatived as he was conscious of the nature of the act and he must be presumed to have been conscious of its criminality. (See Queen Empress v. Laxman Dagdu I. L. R. 10 Bom. 512 ). In the above Calcutta case I. L. R. 23 Cal. 604 the evidence of mental derangement both before and after the occurrence and the fact that murder was committed without any such motive were held to be insufficient. In the case of Mani Ram v. The Crown I. L. R. 8 Lah. 512 ). In the above Calcutta case I. L. R. 23 Cal. 604 the evidence of mental derangement both before and after the occurrence and the fact that murder was committed without any such motive were held to be insufficient. In the case of Mani Ram v. The Crown I. L. R. 8 Lah. 114which was quoted with approval in the case of King Emperor v. Gedka Goala I. L. R. (1937) 16 Pat. 333 at Page 342 the circumstances viz. (1) absence of any motive (2) absence of secrecy (3) multiple murders (4) want of prearrangement and (5) want of accomplices even were held to be insufficient. The Division Bench of this Court in the case of Kanbi Kurji v. The State of Gujarat (1960) 1 I. L. R. 27 at page 28 also observed:--"the mere fact that on former occasions he had been occasionally subject to insane delusions or had suffered derangement of mind and subsequently he had behaved like a mentally deficient person is per se insufficient to bring his case within the exemption. The antecedent and subsequent conduct of the man is relevant only to show what the state of his mind was at the time when the act was committed. In other words so far as sec. 84 is concerned the Court is only concerned with the state of mind of the accused at the time of the act". ( 6 ) THE principles which emerge from these authorities are as under:- (1) The test of legal insanity as distinct from medical insanity is that the nature and extent of unsoundness of mind must reach such a stage where the cognitive faculty of the mind would be so materially affected as would make the offender incapable of knowing the nature of the act or that he is doing what is wrong or contrary to law. (2) Farther one must look outside the act itself for the evidence as to how much the accused knew about it Apart from the act there must be some clear and distinct proof of mental delusion or intellectual aberration existing previously or at the time of perpetration of the crime. (2) Farther one must look outside the act itself for the evidence as to how much the accused knew about it Apart from the act there must be some clear and distinct proof of mental delusion or intellectual aberration existing previously or at the time of perpetration of the crime. The Court is only concerned with the state of mind of the accused at the time of the act and the antecedent and subsequent conduct of the man is relevant only to show what the state of the mind was at the time when the act was committed. (3) The burden is on the accused to establish affirmatively such defence and the same cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is resonalble and probable. It must further be shown that the explanation is a true one i. e. so probable that a prudent man ought in the circumstances to have accepted it. ( 7 ) AS for the second plea to bring the case under exception I to section 300 it is now settled in the case of 8. M. Nanavati v. The State of Maharashtra A. I. R. 1962 S. C. 605 at page 626 para 77 that under this exception culpable homicides not murder if the following conditions are complied with:-- (1) The deceased must have given provocation to the accused. (2) The provocation must be grave. (3) The provocation must be sudden. (4) The offender by reason of the said provocation shall have been deprived of his power of self control. (5) He should have killed the deceased during the continuance of the deprivation of the power of self control. (6) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident. In Para 85 the test of grave and sudden provocation was whether a reasonable man belonging to the same class of society as the Accused placed in the situation in which the accused was placed would be so provoked as to lose his self control. Here also the ingredients of the offence and of the exception do not touch one another and so the case would fall under the second category of cases contemplated in the Nanavatis case discussed above. Here also the ingredients of the offence and of the exception do not touch one another and so the case would fall under the second category of cases contemplated in the Nanavatis case discussed above. And the burden of proof would be on the accused to prove the circumstances covered by the exception affirmatively by not only proving that the explanation was reasonable and probable but also that it was true also i. e. so probable that a prudent man ought under the circumstances to have accepted it. [ The rest of the judgment is not material for this report. ] appeal dismissed. .