iminal Appeal No 58 of 1962
Appeal by special leave from the judgment and order dated June 27 1961 of the Gujarat High Court in Criminal Appeal No 6561960
B K Banerjee for the appellant
D R Prem R H Dhebar and B R G K Achar for the respondent
March 19 1964
The Judgment of the Court was delivered by SUBBA RAO J
This appeal raises the question of the defence of insanity for an offence under section 302 of the Indian Penal Code
The appellant was the husband of the deceased Kalavati
She was married to the appellant in the year 1958
On the night of April 9 1959 as usual the appellant and his wife slept in their bed room and the doors leading to that room were bolted from inside
At about 3 or 330 am on the next day Kalavati cried that she was being killed
The neighbours collected in front of the said room and called upon the ac cused to open the door
When the door was opened they found Kalavati dead with a number of wounds on her body
The accused was sent up for trial to the sessions on the charge of murder
Before the Additional Sessions Judge Kaira a defence was set up that the accused was insane when the incident was alleged to have taken place and was not capable of understanding the nature of his act
The learned Additional Sessions Judge considered the entire evidence placed before him and came to the conclusion that the accused had failed to satisfy him that when he committed the murder of his wife he was not capable to knowing the nature of the act and that what he was doing was either wrong or contrary to law
Having rejected his plea of insanity the learned Additional Sessions Judge convicted him under section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life
On appeal 363 the High Court agreed with that finding though for different reasons and confirmed the conviction and sentence of the accused
Hence the present appeal
Learned counsel for the appellant contended that the High Court having believed the evidence of the prosecution witnesses should have held that the accused had discharged the burden placed on him of proving that at the time he killed his wife he was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law
He further contended that even if he had failed to establish that fact conclusively the evidence adduced was such as to raise a reasonable doubt in the mind of the Judge as regards one of the ingredients of the offence namely criminal intention and therefore the court should have acquitted him for the reason that the prosecution had not proved the case beyond reasonable doubt
Before we address ourselves to the facts of the case and the findings arrived at by the High Court it would be convenient to notice the relevant aspects of the law of the plea of insanity
At the outset let us consider the material provisions without reference to decided cases
The said provisions are INDIAN PENAL CODE Section 299 Whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death commits the offence of culpable homicide
Section 84 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
INDIAN EVIDENCE ACT Section 105 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 XLV of 1860 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
364 Section 4 Shall presume Whenever it is directed by this Act that the Court shall presume a fact it shall regard such facts as proved unless and until it is disproved Proved A fact is said to be proved when after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists
Disproved A fact is said to be disproved when after considering the matters before it the Court either believes that it does not exist or considers its non existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it does not exist
Section 101 Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts must prove that those facts exist
When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person
It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt
The prosecution therefore in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in section 299 of the Indian Penal Code
This general burden never shifts and it always rests on the prosecution
But as section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law
This being an exception under section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused and the court shall presume the absence of such circumstances
Under section 105 of the Evidence Act read with the definition of shall presume in section 4 thereof the court shall regard the absence of such circumstances as proved unless after considering the matters before it it believes that said circumstances existed or their existence was so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that they did exist
To put 365 it in other words the accused will have to rebut the presumption that such circumstances did not exist by placing material before the court sufficient to make it con sider the existence of the said circumstances so probable that a prudent man would act upon them
The accused has to satisfy the standard of a prudent man
If the material placed before the court
such as oral and documentary evidence presumptions admissions or even the prosecution evidence satisfies the test of prudent man the accused will have discharged his burden
The evidence so placed may not be sufficient to  discharge the burden under section 105 of the Evidence Act but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself
It may for instance raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in section 299 of the Indian Penal Code
If the judge has such reasonable doubt he has to acquit the accused for in that event the prosecution will have failed to prove conclusively the guilt of the accused
There is no conflict between the general burden which is always on the prosecution and which never shifts and the special burden that rests on the accused to make out his defence of insanity
The textbooks placed before us and the decisions cited at the Bar lead to the same conclusion
In Halsbury s Laws of England 3rd edn Vol 10 at p 288 it is stated thus The onus of establishing insanity is on the accused
The burden of proof upon him is no higher than which rests upon a party to civil proceedings
 Glanville Williams in his book Criminal Law The General Part 2nd Edn places the relevant aspect in the correct perspective thus at p 516 As stated before to find that the accused did not know the nature and quality of his act is in part only another way of finding that he was ignorant as to some fact constituting an ingredient of the crime and if the crime is one requiring intention or recklessness he must on the view advanced in this book be innocent of mens rea
Since the persuasive burden of proof of mens rea is on the prose cution on question of defence or of disease of the mind arises except in so far as the prisoner is called upon for his own safety to neutralise the evidence of the prosecution
No persuasive burden of proof rests on him and if the jury are uncertain whether the allegation of mens rea is made out   the benefit of the doubt must be given to the prisoner for in the words 366 of Lord Reading in another context the Crown would then have failed to discharge the burden imposed on it by our law of satisfying the jury beyond reasonable doubt of the guilt of the prisoner
 This Court in K M Nanavati vs State of Maharashtra1 had to consider the question of burden of proof in the context ofa defence based on the exception embodied in section 80 of the Indian Penal Code
In that context the law is summarized thus The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under section 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 see sections 4 and 5 of the Prevention of Corruption Act
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 see 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 see section 80 of the Indian Penal Code   
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
 After giving an illustration this Court proceeded to state That evidence may not be sufficient to prove all the ingredients of section 80 of the Indian Penal Code but may prove that the shooting was by accident or inadvertence ie 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 or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder  
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 1 1962 Supp 1 SCR 567 597 598
367 What is said of section 80 of the Indian Penal Code will equally apply to section 84 thereof
A Division Bench of the Patna High Court in Kamla Singh vs The State 1 invoked the same principle when the plea of insanity was raised
A Division Bench of the Nagpur High Court in Ramhitram vs State1 has struck a different note inasmuch as it held that the benefit of doubt which the law gives on the presumption of innocence is available only where the prosecution had not been able to connect the accused with the occurrence and that it had nothing to do with the mental state of the accused
With great respect we cannot agree with this view
If this view were correct the court would be helpless and would be legally bound to convict an accused even though there was genuine and reasonable doubt in its mind that the accused had not the requisite intention when he did the act for which he was charged
This view is also inconsistent with that expressed in Nanavati s case3
A Scottish case HM Advocate vs Fraser4 noticed in Glanville Williams  Criminal Law The General Part 2nd Edn at p 517 pinpoints the distinction between these two categories of burden of proof
There a man killed his baby while he was asleep he was dreaming that he was struggling with a wild beast
The learned author elaborates the problem thus When the Crown proved that the accused had killed his baby what may be called an evidential presumption or presumption of fact arose that the killing was murder
Had no evidence been adduced for the defence the jury could have convicted of murder and their verdict would have been upheld on appeal
The burden of adducing evidence of the delusion therefore lay on the accused
Suppose that when all the evidence was in the jury did not know what to make of the matter
They might suspect the accused to be inventing a tale to cover his guilt and yet not be reasonably certain about it
In that event the accused would be entitled to an acquittal
The prosecution must prove beyond reasonable doubt not only the actus reus but the mens rea  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 section 84 of the 1AIR 1955 Pat 209
2 AIR 1956 Nag
31962 Supp 1 SCR 567
4 368 Indian Penal Code the accused may rebut it by placing be fore 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 theaccused 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
Now we come to the merits of the case
Ordinarily this Court in exercise of its jurisdiction under article 136 of the Constitution accepts the findings of fact arrived at by the High Court
But after having gone through the judgments of the learned Additional Sessions Judge and the High Court we are satisfied that this is an exceptional case to depart from the said practice
The learned Additional Sessions Judge rejected the evidence of the prosecution witnesses on the ground that their version was a subsequent development designed to belly the accused
The learned Judges of the High Court accepted their evidence for two different reasons
Raju J held that a court can permit a party calling a witness to put questions under section 154 of the Evidence Act only in the examination inchief of the witness for this conclusion he has given the following two reasons 1 the wording of sections 137 and 154 of the Evidence Act indicates it and 2 if he is permitted to put questions in the nature of cross examination at the stage of re examination by the adverse party the adverse party will have no chance of cross examining the witness with reference to the answers given to the said questions
Neither of the two reasons in our view is tenable
Section 137 of the Evidence Act gives only the three stages in the examination of a witness namely examination in chief cross examination and re examination
This is a routine sequence in the examination of a witness
This has no relevance to the question when a party calling a witness can be permitted to put to him questions under section 154 of the Evidence Act that is governed by the provisions of section 154 of the said Act which confers a discretionary power on the court to permit a person who calls a witness to put any questions to him which might be put in cross examination by the adverse party
Section 154 does not in terms or by necessary implication confine the exercise of the power by the court before the examination in chief is concluded or to any particular stage of the examination of the witness
It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand
To confine this power to the stage of examination in chief is to make 369 it ineffective in practice
A clever witness in his examination in chief faithfully conforms to what he stated earlier to the police or in the committing court but in the cross examination introduces statements in a subtle way contradicting in effect what he stated in the examination in chief
If his design is obvious we do not see why the court cannot during the course of his cross examination permit the person calling him as a witness to put questions to him which might be put in cross examination by the adverse party
To confine the operation of section 154 of the Evidence Act to a particular stage in the examination of a witness is to read words in the section which are not there
We cannot also agree with the High Court that if a party calling a witness is permitted to put such questions to the witness after he has been cross examined by the adverse party the adverse party will not have any opportunity to further cross examine the witness on the answers elicited by putting such questions
In such an event the court certainly in exercise of its discretion will permit the adverse party to crossexamine the witness on the answers elicited by such questions
The court therefore can permit a person who calls a witness to put questions to him which might be put in the crossexamination at any stage of the examination of the witness provided it takes care to give an opportunity to the accused to cross examine him on the answers elicited which do not find place in the examination in chief
In the present case what happened was that some of the witnesses faithfully repeated what they had stated before the police in the examination inchief but in the cross examination they came out with the story of insanity of the accused
The court at the request of the Advocate for the prosecution permitted him to cross examine the said witnesses
It is not suggested that the Advocate appearing for the accused asked for a further opportunity to cross examine the witnesses and was denied of it by the court
The procedure followed by the learned Judge does not conflict with the express provisions of section 154 of the Evidence Act
Mehta J accepted the evidence of the witnesses on the ground that the earlier statements made by them before the police did not contradict their evidence in the court as the non mention of the mental state of the accused in the earlier statements was only an omission
This reason given by the learned Judge is also not sound
This Court in Tahsildar Singh vs The State of UP1 laid down the following test for ascertaining under what circumstances an alleged omission can be relied upon to contradict the positive evidence in court    3 though a particular statement is not expressly recorded a statement that can be deemed to be part of that expressly recorded can be used 11959 Supp 2 SCR 875 903 370 for contradiction not because it is an omission strictly so called but because it is deemed to form part of the recorded statement 4 such a fiction is permissible by construction only in the following three cases i when a recital is necessarily implied from the recital or recitals found in the statement    ii a negative aspect of a positive when the statement before the police and that before the Court cannot stand together 
Broadly stated the position in the present case is that the witnesses in their statements before the police attributed a clear intention to the accused to commit murder but before the court they stated that the accused was insane and therefore he committed the murder
In the circumstances it was necessarily implied in the previous statements of the witnesses before the police that the accused was not insane at the time he committed the murder
In this view the previous statements of the witnesses before the police can be used to contradict their version in the court
The judgment of the High Court therefore in relying upon some of the important prosecution witnesses was vitiated by the said errors of law
We would therefore proceed to consider the entire evidence for ourselves
When a plea of legal insanity is set up the court has to consider whether at the time of commission of the offence the accused by reason of unsoundness of mind was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law
The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed
Whether the accused was in such a state of mind as to be entitled to the benefit of section 84 of the Indian Penal Code can only be established from the circumstances which preceded attended and followed the crime
The first question is what is the motive for the appellant to kill his wife in the ghastly manner he did by inflicting 44 knife injuries on her body Natverlal Atmaram the father of the deceased Kalavati was examined as PW 13
He said that about 20 days before his daughter was murdered he received a letter from the accused asking him to take away his daughter on the ground that he did not like her that he went to Bherai with that letter showed it to Chhaganbhai the father of the accused and had a talk with him about it that Chhaganbhai took that letter from him and promised to persuade the accused not to discard his wife  that after a week be again went to Bherai and asked the accused why he did not like the deceased and the accused replied that he did not like her as she was not working properly and that thereafter he went back to his village and sent a message through someone that he would go 371 to Bherai to take his daughter on Chaitra Sudi 1
The murder took place on the night before Chaitra Sudi 1
In the cross examination he admitted that he did not tell the police that he  had given the letter to the father of the accused but he told the Sub Inspector that he had shown the letter to him
Chhaganlal the father of the accused as PW 7 no doubt denied that Natverlal gave him the letter written by the accused but he admitted that Natverlal came to his village 10 or 15 days before the incident to take his daughter away
The evidence of Natverlal that he went to the village of the accused is corroborated by the evidence of PW 7
It is therefore likely that the accused wrote a letter to Natverlal to take away Kalavati and it is also likely that Natverlal gave that letter to PW 7 to persuade his son not to discard his wife
PWs 2 to 7 said in the cross examination that the accused and his wife were on cordial terms but as we will indicate later in our judgment all these witnesses turned hostile in the sessions court and made a sustained attempt to support the case of insanity
That apart their evidence does not disclose what opportunities they had to notice the cordial relation that existed between the accused and the deceased
The learned Additional Sessions Judge rightly disbelieved their evidence
The learned Additional Sessions Judge who had seen Natverlal in the witness box has accepted his evidence
We having gone through his evidence
see no reason to differ from the opinion of the learned Additional Sessions Judge
It is also not denied that though the accused was in Ahmedabad for ten months he did not take his wife with him
We accept the evidence of Natverlal and hold that the accused did not like his wife and therefore wanted his father in law to take her away to his home and that his father in law promised to do so before Chaitra Sudi 1
The next question is what was the previous history of the mental condition of the accused Here again the prosecu tion witnesses PWs 2 to 7 deposed for the first time in the sessions court that 4 or 5 years before the incident the accused was getting fits of insanity
But all these witnesses stated before the police that the accused had committed the murder of his wife indicating thereby that he was sane at that time
Further their evidence is inconsistent with the facts established in the case
During this period it was admitted by PW 7 the accused was not treated by any doctor
Prior to the incident he was serving in Ahmedabad in Monogram Mills for about a year and a half
Though the father of the deceased was staying in a village only a few miles away from the village of the accused and though the betrothal was fixed 5 years before the marriage he did not know that the accused was insane for if he had known that such was the mental condition of the accused he would not have given his daughter in marriage to 372 him
It is impossible to conceive that he would not have known that the accused was insane if he was really so and particularly when it is the case of the accused that it was not kept secret but was well known to many people and to some of the witnesses who came to depose for him
A month and a half prior to the incident Chhaganlal had one to Ahmedabad for medical treatment and during that period the accused came from Ahmedabad to manage his father s shop in his absence
The fact that he was recalled from Ahmedabad was not disputed but while Natverlal said that the accused was recalled in order to manage Chhaganlal s shop in his absence Chhaganlal said that he was recalled because he was getting insane
The best evidence would have been that of the relative in whose house the accused was residing in Ahmedabad
But the relative was not examined
It appears to us that the accused was serving in Ahmedabad in Monogram Mills and he was asked to come to the village of his father to attend to the latter s business a month and a half before the incident as the father was leaving for Ahmedabad for medical treatment
Before the commencement of the trial in the sessions court on June 27 1959 an application was filed on behalf of the accused supported by an affidavit field by the father of the accused praying that as the accused had become insane he should be sent for proper medical treatment and observation
In that affidavit it was not stated that the accused was getting fits of insanity for the last 4 or 5 years and that he had one such fit at that time
If that was a fact one would expect the father to allege prominently the said fact in his affidavit
These facts lead to a reasonable inference that the case of the accused that he had periodical fits of insanity was an afterthought
The general statements of witnesses PWs 1 to 6 that he had such fits must therefore necessarily be false
therefore hold that the accused had no antecedent history of insanity
Now coming to the date when the incident took place PW 7 the father of the accused said that the accused was insane for 2 or 3 days prior to the incident
His evidence further discloses that he and his wife had gone to Ahmedabad on the date of the incident and returned in the same evening
If really the accused had a fit of insanity a day or two before the incident is it likely that both the parents would have left him and one to Ahmedabad To get over this incongruity PW 7 said that he went to Ahmedabad to see a bridegroom for his daughter and also to get medicine for the accused
But he did not say which doctor he consulted and wherefrom he purchased the medicines or whether in fact he bought any medicines at all
If the accused had a fit of insanity
is it likely that the wife would have slept with him in the same room We must therefore hold that it had not been established that 2 or 3 days before the incident the accused had a fit of insanity
373 Now we come to the evidence of what happened on the night of the incident
Nobody except the accused knows what happened in the bed room
PWs 2 to 7 deposed that on the 10th April 1959 corresponding to Chaitra Sudi 1 between 3 and 4 am they heard shouts of the deceased Kalavati to the effect that she was being killed that they all went to the room but found it locked from inside that when the accused was asked to open the door he said that he would open it only after the Mukhi PW 1 was called that after the Mukhi came there the accused opened the door and came out of the room with a blood stained knife in his hand that the accused began talking irrelevantly and was speaking why you killed in  mother why you burnt my father s house that afterwards the accused sat down and threw dust and mud at the persons gathered there and that he was also laughing without any cause
In short all the witnesses in one voice suggested that the accused was under a hallucination that the deceased had murdered his mother and burnt his father s house and therefore he killed her in that state of mind without knowing what he was doing
But none of these witnesses had described the condition of the accused immediately when he came out of the room which they did so graphically in the sessions court at the time when they made statements before the police
in effect they stated before the police that the accused came out of the room with a blood stained knife in his hand and admitted that he had murdered his wife but in the witness box they said that when the accused came out of the room he was behaving like a mad man and giving imaginary reasons for killing his wife
The statements made in the depositions are really inconsistent with the earlier statements made before the police and they are therefore contradictions within the meaning of section 162 of the Code of Criminal Procedure
We cannot place any reliance on the evidence of these witnesses it is an obvious development to help the accused
The subsequent events leading up to the trial make it abundantly clear that the plea of insanity was a belated after thought and a false case
After the accused came out of the room he was taken to the chora and was confined in a room in the chora
PW 16 the police sub inspector reached Bherai at about 930 am
He interrogated the accused recorded his statement and arrested him at about 1030 am
According to him as the accused was willing to make a confession he was sent to the judicial magistrate
This witness described the condition of the accused when he met him thus When I went in the Chora he had saluted me and he was completely sane
There was absolutely no sign of insanity and he was not behaving as an insane man
He was not abusing
He had replied to 374 my questions understanding them and was giving relevant replies
And therefore I had sent him to the Magistrate for confession as he wanted to confess
 There is no reason to disbelieve this evidence particularly when this is consistent with the subsequent conduct of the accused
But PW 9 who attested the panchnama exhibit 19 recording the condition of the accused s body and his clothes deposed that the accused was murmuring and laughing
But no mention of his condition was described in the panchnama
Thereafter the accused was sent to the Medical Officer Mater for examination and treatment of his injuries
The doctor examined the accused at 930 pm and gave his evidence as PW 11
He proved the certificate issued by him exhibit 23
Nothing about the mental condition of the accused was noted in that certificate
Not a single question was put to this witness in the cross examination about the mental condition of the accused
On the same day the accused was sent to the judicial Magistrate First Class for making a confession
On the next day he was produced before the said Magistrate who asked him the necessary questions and gave him the warning that his confession would be used against him at the trial
The accused was given time for reflection and was produced before the Magistrate on April 13 1959
On that date he refused to make the confession
His conduct before the Magistrate as recorded in exhibit 31 indicates that he was in a fit condition to appreciate the questions put to him and finally to make up his mind not to make the confession which he had earlier offered to do
During the enquiry proceedings under Ch
XVIII of the Code of Criminal Procedure no suggestion was made on behalf of the accused that he was insane
For the first time on June 27 1959 at the commencement of the trial in the sessions court an application was filed on behalf of the accused alleging that he was suffering from an attack of insanity
On June 29 1959 the Sessions Judge sent the accused to the Civil Surgeon Khaira for observation
On receiving his report the learned Sessions Judge by his order dated July 13 1959 found the accused insane and incapable of making his defence
On August 28 1959 the court directed the accused to be sent to the Superintendent of Mental Hospital Baroda for keeping him under observation with a direction to send his report on or before September 18 1959
The said Superintendent sent his report on August 27 1960 to the effect that the accused was capable of understanding the proceedings of the court and of making his defence in the court
On enquiry the court held that the accused could understand the proceedings of the case and was capable of making his defence
At the commencement of the trial the pleader for the accused stated that the accused could understand the proceedings
The proceedings before the 375 Sessions Judge only show that for a short time after the case had commenced before him the accused was insane
But that fact would not establish that the accused was having fits of insanity for 4 or 5 years before the incident and that at the time he killed his wife he had such a fit of insanity as to give him the benefit of section 84 of the Indian Penal Code
The said entire conduct of the accused from the time he killed his wife upto the time the sessions proceedings commenced is inconsistent with the fact that he had a fit of insanity when he killed his wife
It is said that the situation in the room supports the ver sion that the accused did not know what he was doing
It is asked why the accused should have given so many stabs to kill an unarmed and undefended woman It is said that it discloses that the accused was doing the act under some hallucination
On the other hand the existence of the weapons in the room the closing of the door from inside his reluctance to come out of the room till the Mukhi came even if that fact is true would indicate that it was a premeditated murder and that he knew that if he came out of the room before the Mukhi came he might be manhandled
Many sane men give more than the necessary stabs to their victims
The number of blows given might perhaps reflect his vengeful mood or his determination to see that the victim had no escape
One does not count his strokes when he commits murder
We therefore do not see any indication of insanity from the materials found in the room on the other hand they support the case of premeditated murder
To summarize the accused did not like his wife even though he was employed in Ahmedabad and stayed there for about 10 months he did not take his wife with him he wrote a letter to his father in law to the effect that the accused did not like her and that he should take her away to his house the father in law promised to come on Chaitra Sudhi 1 the accused obviously expected him to come on April 9 1959 and tolerated the presence of his wife in his house till then as his father in law did not come on or before April 9 1959 the accused in anger or frustration killed his wife
It has not been established that he was insane nor the evidence is sufficient even to throw a reasonable doubt in our mind that the act might have been committed when the accused was in a fit of insanity
We therefore though for different reasons agree with the conclusion arrived at by the High Court and dismiss the appeal


Summary:
The appellant was charged with murdering his wife
Before the Sessions Judge a defence was set up that the appellant was insane when the incident took place and was not capable of understanding the nature of his act
The Sessions Judge rejected the plea of insanity and convicted him under section 302 of the Indian Penal Code
On appeal the High Court confirmed the conviction
Held i There is no conflict between the general burden to prove the guilt beyond reasonable doubt which is always on the prosecution and which never shifts and the special burden that restson the accused to make out his defence of insanity
ii The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions1The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mensrea 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 section 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 which 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
K M Nanavati vs State of Maharashtra 1962 Supp 1 SCR567
followed
Ramhitram vs State AIR 1956 Nag 187 disapproved
Kamla Singh vs State AIR 1955 Pat
209 approved
H M Advocate vs Fraser 18784 Couper 70 referred to
iiiThe court can permit a person who calls a witness to put questions to him which might be put in cross examination at any stage of the examination of the witness provided it takes care to give an opportunity to the accused to cross examine him on the answers elicited which do not find place in the examination in chief
362 Section 137 of the Evidence Act gives only the three stages in the examination of a witness and it has no relevance to the question when a party calling a witness can be permitted to put to him questions under section 154 of the Evidence Act that is governed by the provisions of section 154 of the said Act which confers a discretionary power on the court to permit a person who calls a witness to put any questions to him which might be put in cross examination by the adverse party
Tahsildar Singh vs The State of UP 1959 SUPP
2 SCR 875 followed