Hari Singh Gond vs State Of M.P

Judge Mandla in Sessions Case No. 66 of 1995 who imposed sentences of imprisonment for life and three years

respectively.

2. Background facts, as projected by the prosecution,

during trial are as follows:

Harilal Gond (hereinafter referred to as the `deceased')

was the maternal grandfather in law of the accused and in the

night of incident accused, deceased and his samdhi Motilal

were sleeping in the same house.

Shyamlal (PW1), son in law of the deceased brought his

son in law accused Hari Singh on 23.2.1995 to Mohda from

Singanpuri for treatment. On 25.2.1995 in the evening Motilal

(PW2) the father of Shyamlal and his samdhi i.e. deceased and

son in law i.e. accused Hari Singh were sleeping in the same

room after having their meal. Shyamlal alone was sleeping in

his room. Shyamlal got up around 3-3.30 after hearing the

shouting of his son in law who was pushing his door. Then

accused ran towards him to beat and in fact beat Shyamlal

with the lathi which he was carrying in his hand. Shyamlal

2 ran away and went to the house of Baldan. After sometime he

observed that his house was burning. Then he came running

towards his house and conveyed the same to the villagers.

When he went alognwith villagers to his house then the

villagers Mulloo Singh, Chamru Singh etc. caught hold of

accused Hari Singh and they observed that there was a fire in

the room where Harilal the father in law of Shyamlal was

sleeping and his father in law was burnt and had died. Motilal

the father of the Shyamlal told him that Hari Singh had

slapped him at his cheek and had also kicked him at his back

and by taking lathi and trishul he ran after him, then he also

ran away. Then accused started beating deceased Harilal with

stick and accused hit Harilal several times due to which

Harilal died. Then accused put some grains on fire which were

lying in that room, due to which not only the house caught the

fire but Harilal was also burnt. The incident was reported by

Shyam Lal in writing to police chowki Maneri of police station

Bija Dandi at 9.00 A.M. in the morning and the report is Ex.

P-1. On conducting the post-mortem of Harilal, the whole

dead body was found to have been burnt, there were many

3 injuries on his body and there was fracture in the head and all

the injuries were ante mortem.

After investigation, charge sheet was filed. Since

accused pleaded innocence, trial was held.

The trial court relied on the evidence of eye witness Moti

Lal (PW 2) while Kali Bai (PW 4) corroborated the statement of

eye witness about the unusual behaviour of the accused.

The trial court found the evidence to be cogent and

accordingly recorded conviction and imposed sentence as

noted above. It did not accept the plea that Section 84 IPC

has application. In appeal before the High Court the stand

about unsoundness of mind and protection under Section 84

IPC was pressed into service.

The prosecution on the other hand submitted that

Section 84 has no relevance or application. High Court

accepted State's stand and accordingly dismissed the appeal.

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3. In the present appeal it was submitted that the unusual

behaviour of the accused has been stated by even the eye

witness PW2 and PW 4 and, therefore, the courts below were

not justified in rejecting the plea of protection under Section

84 of the Act.

4. Learned counsel for the respondent on the other hand

supported the judgment of the trial court and the High Court.

5. Section 84 lays down the legal test of responsibility in

cases of alleged unsoundness of mind. There, is no definition

of "unsoundness of mind" in the IPC. Courts have, however,

mainly treated this expression as equivalent to insanity. But

the term "insanity" itself has no precise definition. It is a term

used to describe varying degrees of mental disorder. So, every

person, who is mentally diseased, is not ipso facto exempted

from criminal responsibility. A distinction is to be made

between legal insanity and medical insanity. A Court is

concerned with legal insanity, and not with medical insanity.

The burden of proof rests on an accused to prove his insanity,

5 which arises by virtue of Section 105 of the Indian Evidence

Act, 1972 (in short the `Evidence Act') and is not so onerous as

that upon the prosecution to prove that the accused

committed the act with which he is charged. The burden on

the accused is no higher than that resting upon a plaintiff or a

defendant in a civil proceeding. (See Dahyabhai v. State of

Gujarat AIR 1964 SC 1563). In dealing with cases involving a

defence of insanity, distinction must be made between cases,

in which insanity is more or less proved and the question is

only as to the degree of irresponsibility, and cases, in which

insanity is sought to be proved in respect of a person, who for

all intents and purposes, appears sane. In all cases, where

previous insanity is proved or admitted, certain considerations

have to be borne in mind. Mayne summarises them as follows:

"Whether there was deliberation and preparation for the act; whether it was done in a manner which showed a desire to concealment ; whether after the crime, the offender showed consciousness of guilt and made efforts to avoid detections whether, after his arrest, he offered false excuses and made false statements. All facts of this sort are material as bearing on the test, which Bramwall, submitted to a jury in such a case :

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`Would the prisoner have committed the act if there had been a policeman at his elbow ? It is to be remembered that these tests are good for cases in which previous insanity is more or less established. These tests are not always reliable where there is, what Mayne calls, "inferential insanity".

6. Under Section 84 IPC, a person is exonerated from

liability for doing an act on the ground of unsoundness of

mind if he, at the time of doing the act, is either incapable of

knowing (a) the nature of the act, or (b) that he is doing what

is either wrong or contrary to law. The accused is protected

not only when, on account of insanity, he was incapable of

knowing the nature of the act, but also when he did not know

either that the act was wrong or that it was contrary to law,

although he might know the nature of the act itself. He is,

however, not protected if he knew that what he was doing was

wrong, even if he did not know that it was contrary to law, and

also if he knew that what he was doing was contrary to law

even though he did not know that it was wrong. The onus of

proving unsoundness of mind is on the accused. But where

during the investigation previous history of insanity is

7 revealed, it is the duty of an honest investigator to subject the

accused to a medical examination and place that evidence

before the Court and if this is not done, it creates a serious

infirmity in the prosecution case and the benefit of doubt has

to be given to the accused. The onus, however, has to be

discharged by producing evidence as to the conduct of the

accused shortly prior to the offence and his conduct at the

time or immediately afterwards, also by evidence of his mental

condition and other relevant factors. Every person is

presumed to know the natural consequences of his act.

Similarly every person is also presumed to know the law. The

prosecution has not to establish these facts.

7. There are four kinds of persons who may be said to be

non compos mentis (not of sound mind), i.e., (1) an idiot; (2)

one made non compos by illness (3) a lunatic or a mad man

and (4.) one who is drunk. An idiot is one who is of non-sane

memory from his birth, by a perpetual infirmity, without lucid

intervals; and those are said to be idiots who cannot count

twenty, or tell the days of the week, or who do not know their

8 fathers or mothers, or the like, (See Archbold's Criminal

Pleadings, Evidence and Practice, 35th Edn. pp.31-32; Russell

on Crimes and Misdemeanors, 12th Edn. Vol., p.105; 1 Hala's

Pleas of the Grown 34). A person made non compos mentis by

illness is excused in criminal cases from such acts as are-

committed while under the influence of his disorder, (See 1

Hale PC 30). A lunatic is one who is afflicted by mental

disorder only at certain periods and vicissitudes, having

intervals of reason, (See Russell, 12 Edn. Vol. 1, p. 103; Hale

PC 31). Madness is permanent. Lunacy and madness are

spoken of as acquired insanity, and idiocy as natural insanity.

8. Section 84 embodies the fundamental maxim of criminal

law, i.e., actus non reum facit nisi mens sit rea" (an act does not

constitute guilt unless done with a guilty intention). In order

to constitute an offence, the intent and act must concur; but

in the case of insane persons, no culpability is fastened on

them as they have no free will (furios is nulla voluntas est).

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9. The section itself provides that the benefit is available

only after it is 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 doing, or that even if he did not know

it, it was either wrong or contrary to law then this section

must be applied. The crucial point of time for deciding

whether the benefit of this section should be given or not, is

the material time when the offence takes place. In coming to

that conclusion, the relevant circumstances are to be taken

into consideration, it would be dangerous to admit the defence

of insanity upon arguments derived merely from the character

of the crime. It is only unsoundness of mind which naturally

impairs the cognitive faculties of the mind that can form a

ground of: exemption from criminal responsibility. Stephen in

`History of the Criminal Law of England, Vo. II, page 166 has

observed that if a person cuts off the head of a sleeping man

because it would be great fun to see him looking for it when

he woke up, would obviously be a case where the perpetrator

of the act would be incapable of knowing the physical effects

10 of his act. The law recognizes 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 dim to

apprehend what he is doing, he must always be presumed to

intend the consequence of the action he takes. Mere absence

of motive for a crime, howsoever atrocious it may be, cannot in

the absence of plea and proof of legal insanity, bring the case

within this section This Court in Sherall Walli Mohammed v.

State of Maharashtra: (1972 Cr.LJ 1523 (SC)), held that the

mere fact that no motive has been proved why the accused

murdered his wife and child or the fact that he made no

attempt to run away when the door was broken open would

not indicate that he was insane or that he did not have

necessary mens rea for the offence. Mere abnormality of mind

or partial delusion, irresistible impulse or compulsive

behaviour of a psychopath affords no protection under Section

84 as the law contained in that section is still squarely based

on the outdated Naughton rules of 19th Century England. The

provisions of Section 84 are in substance the same as that

laid down in the answers of the Judges to the questions put to

11 them by the House of Lords, in M Naughton's case (1843) 4 St.

Tr. (NS) 847. Behaviour, antecedent, attendant and

subsequent to the event, may be relevant in finding the mental

condition of the accused at the time of the event, but not that

remote in time. It is difficult to prove the precise state of the

offender's mind at the time of the commission of the offence,

but some indication thereof is often furnished by the conduct

of the offender while committing it or immediately after the

commission of the offence. A lucid interval of an insane person

is not merely a cessation of the violent symptoms of the

disorder, but a restoration of the faculties of the mind

sufficiently to enable the person soundly to judge the act; but

the expression does not necessarily mean complete or prefect

restoration of the mental faculties to their original condition.

So, if there is such a restoration, the person concerned can do

the act with such reason, memory and judgment as to make it

a legal act ; but merely a cessation of the violent symptoms of

the disorder is not sufficient.

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10. The standard to be applied is whether according to the

ordinary standard, adopted by reasonable men, the act was

right or wrong. The mere fact that an accused is conceited,

odd irascible and his brain is not quite all right, or that the

physical and mental ailments from which he suffered had

rendered his intellect weak and had affected his emotions and

will, or that he had committed certain unusual acts, in the

past or that he was liable to recurring fits of insanity at short

intervals, or that he was subject to getting epileptic fits but

there was nothing abnormal in his behaviour, or that his

behaviour was queer, cannot be sufficient to attract the

application of this section.

11. The trial Court and the High Court have, on the facts of

the case, rightly held that Section 84 IPC has no application.

12. It is submitted that the accused-appellant is in custody

since 23.1.1996 and Section 339 of the Code of Criminal

Procedure, 1973 (in short the `Cr.P.C') has application. We

express no opinion in that regard.

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13. Appeal is dismissed.

.........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, August 29, 2008

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