IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 376 of 1996 For Approval and Signature: Hon'ble MR.JUSTICE J.N.BHATT and Hon'ble MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : YES -------------------------------------------------------------- BOLABHAI HIRABHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR AR THACKER for Petitioner [Appointed under Legal Aid] MR KP RAVAL, APP for Respondent No.1, State of Guj. -------------------------------------------------------------- CORAM : MR.JUSTICE J.N.BHATT and MR.JUSTICE J.R.VORA Date of decision: 20/06/2000 ORAL JUDGEMENT(Per J.N.Bhatt, J.) Whether, the appellant-accused is guilty of offence punishable under section 302 of the Indian Penal Code (IP Code), or his act falls within the exception under section 84 of the IP Code, is the question posed before us, in this appeal, against the judgment and order of conviction recorded by the learned Additional Sessions Judge, Sabarkantha, in Sessions Case No.103/95, on 23.4.1996. Pursuant to the direction contained in the order dated October 28, 1997, in Criminal Appeal No.976/97 arising out of SLP (Crl.) No.2615/97, passed by the Hon'ble Supreme Court, this appeal came to be re-admitted and record and proceedings were called for and since the appellant is in custody and he could not secure service of private Advocate and it seems he is an indigent person, he was provided with, legal aid in his defence. While disposing of the appeal, the Hon'ble Supreme Court observed to dispose of this appeal, as expeditiously as possible, preferably, within a period of three months from the date of communication of the order. [It is, really, very unfortunate that this High Court could not hear the matter within the time-frame desired in the order and failed to honour the wish of the Apex Court, apparently, as it seems to be on account of the heavy workload. However, upon our attention being drawn in current sitting with such business which began on 12.6.2000, we, urgently, heard the appeal.] A few, material, and relevant facts, leading to the rise of this appeal, need narration, so as to appreciate, the merits of the appeal and the challenge by the respondent State. The appellant, who, is the original accused, came to be charged for having committed offence punishable under section 302 of the IP Code, for committing the murder of his wife, Jiji, by giving axe blows, on 10.6.95, around 2.00 p.m. in his house, situated, at village Digthali, Taluka Khedbrahma, District Sabarkantha, Gujarat, to which the accused denied and also raised the plea of insanity. Accused, according to the prosecution, entertained a superstitious belief and a notion that his deceased wife was practising witch-craft, as a result of which, the health of the accused was affected and deteriorated. Deceased, Jiji and accused, her husband, lived the married life more than a quarter-century and out of which there were six children. Prosecution witness Vanabhai was the eldest son. Prosecution witness No.1, Rashma Hira, was the brother of the accused, who had lodged the complaint, Ex.9, before PSI, Khedbrahma, on the same day after the incident occurred. Pursuant to the complaint of prosecution witness, Rashma, the investigation was commenced. Muddamal axe, allegedly, used by the accused was recovered from the venue of offence having blood marks. The defence raised on behalf of the accused is that of an insanity. In support of this version, defence, witness Dr.R.B.Agarwal, M.D., in Phychiatrist was also examined. It is, therefore, the defence that the act of the accused is covered by the exception prescribed in Section 84 of the IP Code. Since the accused could not afford to engage the service of a private advocate, the appeal came to be filed through Jail, and, therefore, he has been provided with legal assistance in support of his defence in the appeal. So far as, the homicidal death of deceased, Jiji, wife of the accused is concerned, there is no dispute. The prosecution has, successfully, established by leading evidence in general and the medical evidence of the prosecution witness No.10, K.T.Akhani, at Ex.27, in particular, that deceased, Jiji, died a homicidal death on account of the injuries sustained by her, which were possible by muddamal axe produced, at article No.5. The P.M. report is produced, at Ex.28. The case of the prosecution that the author of the homicidal death is the husband-accused, the appellant in this appeal, is also proved without any doubt in view of the evidence of the prosecution in general and in view of the evidence of prosecution witness No.1, complainant, Reshma Hira, at Ex.8, who is an eye-witness and brother of the accused and the evidence of prosecution witness No.2, Vana Bhola, Ex.10, another eye witness and who is the son of the accused. In view of the specific plea of insanity and general exception laid down in section 84 of the IP Code, let us first consider the provisions thereof. Section 84 of IP Code is one of the general exceptions incorporated in Chapter IV of IP Code from section 76 to 106. General exceptions in Chapter IV of the IP Code clearly go to show that such are the exceptions in favour of infants, lunatics, idiots persons, or persons incapable of judgment by reason of intoxication caused against his will, etc. In so far as the defence of the accused is concerned, it will be necessary to refer to the provisions of Section 84, which reads as under: "84. Nothing is an offence which is done by a peson 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." Though the offence is committed, it would fall within the ambit of section 84, if it is, successfully, shown that the act done by the accused, whereby, offence is committed, was the outcome of, or by reason of unsoundness of mind, at the time of acting or doing it, and the act committed by a person in such a situation is not punishable though the offence is committed. A person is incapable of knowing the nature of the act or that he is, mentally, incapacitated to perceive or conceive what he was doing was either wrong or contrary to the provisions of law is exempted from being punished by virtue of inhibition projected in section 84 of the IP Code. In so far as the general exception inscribed in section 84 is concerned, following material proposition may be articulated before we embark upon the analysis and evaluation of factual position and evidence emerging from the record of the present case. (1) The plea of insanity is to be established by the accused; (2) In order to consider the plea of insanity or unsoundness of mind of a person, who, has committed the offence, the facts and relevant events preceded, attended and succeeded to the incriminating event are relevant and material. (3) The extent and degree of proof in proving the case of general exception is not as high as the degree or extent required of prosecution to establish its case. (4) It is, therefore, a settled proposition of law that the person propounding anyone of the general exceptions incorporated in section 76 to 106 of the IP Code is not obliged to prove it beyond reasonable doubt as that of the prosecution, but can succeed in probabilising the version or any of the exceptions. (5) Having once discharged the onus of proving one of the general exceptions, it would be for the prosecution then to satisfy the Court beyond reasonable doubt that the incriminating act of the person propounding a general exception was not in unsoundness of mind or such a person was knowing the nature of the act, like that, what is right and what is contrary to law. (6) In support of the plea of insanity, what is required to be shown by the defence is the incapacity of faculty of mind, transitorily, or regularly in knowing the result of the act, whether right or wrong, whether contrary to law or not. Therefore, the defence has to show that the incriminating act was not an act expected of or a design or a decideratum on the part of the maker of such act or offence. (7) The insanity to be proved is required to be the legal insanity and not the medical insanity which should affect the cognitive faculties depriving of a person from the sense of making a judgment or a choice. (8) It is, rightly, said by Black Stone that mad man has no will. (9) A man of unsound mind is, therefore, in all ages, an object of commiseration but as society has to be protected even against the attacks of maniac and, therefore, Sections 328 and 329 of Criminal Procedure Code provide for his detention to prevent mischief. (10) There are four kinds of persons who may be said to be non compos mentis (not of sound mind), (i) an idiot, (ii) non compos by illness (iii) a lunatic or mad man, and (iv) one who is drunk. It can, very well, be seen from the aforesaid propositions that in order to succeed in raising the plea of general exceptions and claiming exemption from the criminal liability, it is necessary to establish by defence, on the ground of insanity, that at the time of committing the act leading to an offence, the accused was harbouring or labouring or suffering under such a mental defect or psychological deficiency. In considering whether the accused person was of unsound mind, the state of mind of the accused, at the time of commission of offence, has to be considered. However, acts and behaviour of the accused preceding and succeeding are relevant for determining the state of mind, at the time of commission of the offence. In short, in order to succeed in proving the general exception provided in section 84, as stated above, and the resultant legal immunity from criminal liability, a person or a party accused, who, propounds the plea of insanity has to satisfy the court that the incriminating act was not an intended one or that there was incapacity to know and understand the nature of the act and the resultant effect, thereof. In other words, it is necessary to establish what was the nature of act or what was right or wrong was not conceivable and perceivable by the person. No doubt, mere eccentric or some disorder of mind or some defect of faculty of mind which would not affect the judgment and reasons, obviously could not be said to, legally, constitute an act enshrined and prescribed in section 84 of the IP Code. Undoubtedly, the faculty of mind depriving the person from knowing the right or wrong act incapacitating him from understanding the outcome of the act has various influential factors. It would not be possible to put the same in a straight-jacket formula. It is, therefore, absolutely, imperative to evaluate and analyse the evidence and to form an opinion as to whether the party accused having committed an offence could be said to be governed by the exception or not. It is, therefore, necessary to, closely, look into the relevant factual scenario from the record of the present case. Needless to mention that the plea of insanity and unsoundness of mind propounded by the appellant-original accused is not believed by the Trial Court. We have, threadbare, examined the reasons assigned in rejecting such a plea. We have, also, given our anxious thoughts to the submissions raised on behalf of the accused reiterating the plea of insanity before us. We have been taken, extensively, through the relevant evidence of the prosecution and the defence witnesses examined by the accused. Therefore, it is necessary to refer to the relevant evidence of the witnesses in the context of the aforesaid propositions. Prosecution witness No.1, Rashma Hira, was examined at Ex.8. He is the real brother of the accused, on whose evidence, the Trial Court has placed strong reliance. He is also the complainant and eye-witness. However, the Trial Court has not relied on certain material averments emerging from his evidence, in so far as plea of insanity is concerned. Similarly, the Trial Court has also failed to appreciate the evidence of prosecution witness No.2, Vana Bhola, Ex.10, who is the son of the accused and also, other prosecution witnesses. In our opinion, the Trial Court has committed serious error causing grave injustice to the accused in not appreciating the following unquestionable factual situation emerging from the record of the present case, out of the depositions of the witnesses, which are relied on by the Trial Court, for the purpose of establishing the guilt of the accused. (1) Accused committed offence by inflicting axe blow on the person of his wife Jiji without any slightest or remotest allegation of motive. No doubt, we are conscious of the fact that mere absence of motive does not, ipso facto, lead to substantiate the plea of insanity. But it is, surely, one of the circumstances. (2) The accused was suffering from mental disorder and unsoundness of mind long before the occurrence of the incident in question. (3) He was not, only, a mentally eccentric or psychic disorder, but was losing complete balance of mind that he has been beating or trying to beat anyone without any rhyme or reason. (4) He was required to be tied down with rope, many a times, so as to control his emotions and impulses, without which he would beat to an extent of killing. (5) He was required to be taken to place known as 'Miradatar' which was, superstitiously, believed to be a place curing mentally disorder or unsound person. (6) The accused was required to be looked after, watched constantly by someone else he would commit not, only, some untoward event or act or even an offence. (7) He had, unmindfully, started giving axe blows without any reason or motive and also unmindfully thrown the axe there and then at the venue of offence, which may not happen, in a case of intended or planned offence. (8) He was kept in custody by locking him in a room till the police arrived after the incident as he was very emotive, impulsive and suffering from unsoundness of mind. (9) He was under the treatment of Phychiatrist. (10) He was known by family and villagers as a mad man. The prosecution witness No.1, Rashma, brother of the accused has, clearly, stated in his evidence, under the cross-examination that his brother-accused has been suffering from unsoundness and disorder of mind, seriously, since last two years prior to the date of incident. He was having frequent such attacks, that he was required to be tied down. He was, therefore, under treatment in a hospital, at Palanpur, where he was given electric shocks. He was getting so much so strong impulses of mind that he was losing his mental balance, as a result of which, he used to beat to an extent of causing serious injuries even to the relatives and family members. He was having such an attack gradually and on having reached to the climax, he was out of control. Therefore, he was required to be tied down with rope. It is, therefore, very clear, from the evidence of his own brother that the accused has been a victim of unsoundness of mind and, at times, he has been completely out of control and psychologically imbalanced. It is not understood why this part of the evidence of prosecution witness, Rashma Hira, who is, the real brother of the accused is discarded, in so far as plea of insanity is concerned. Not only that the plea of insanity supported by prosecution witness No.1, brother of the accused is also reinforced by the evidence of PW 2, Vana Bhola, Ex.10. It is also, amply, evident from his testimony that the accused was behaving like an idiot or lunatic and he was, therefore, required constant care and watch by somebody, else he used to catch hold of even strangers without any reason and start beating. He has, also, clearly, admitted that his father was required to be taken to 'Miradatar' as he was, mentally, unsound and that on account of his mental disorder, his father was characterised and known by the village folk and family as mad person. It is, also, clear from his evidence that his father has been under medical care and treatment for unsoundness of mind and insanity. It is also very, clearly, testified that the accused, his father, has been acting like a mad-man or lunatic person since last 3 years before he was examined. The accused was, also, unmindfully catching anybody and beating, as a result of which he was required to be constantly cared and watched by somebody and he was himself looking after him, closely, almost for a period of one year. He has also admitted in his evidence that on account of unsoundness of mind of his father, i.e. accused, he and all his family members were very much disturbed, agitated and annoyed. We have failed to comprehend as to why this part of the evidence of the prosecution witness Vana, an eye-witness, son of the accused, throwing light on the plea of insanity should be thrown overboard. His testimony, supports the plea raised by the accused in his defence and also the evidence of prosecution witness No.1, Rashma, brother of the accused, on this plea. It would be, also, interesting to refer to the evidence of Prosecution witness No.3, Sanja Jiva, who is the cousin-brother of the accused, who rushed to the venue immediately after the incident, on hearing the shouts of prosecution witness, Vana, son of the accused. From his testimony, it is evident that the accused has been in the habit of hurling filthy abuses by catching anybody by raising shouts on account of unsoundness of mind. Therefore, he was required to be tied down with rope. It is very clear from his testimony that village people were so much so apprehensive and scared of accused that they were not going near to the accused as he was madman. It is, also, admitted by him in the cross-examination that the accused was under medical treatment and he was also taken to Miradatar. Even, at the cost of repetition, it may be stated that Miradatar is a place where persons of unsound mind are taken out of superstitious belief that they will be cured. Prosecution witness, Sanja Jiva, has also admitted in his evidence that the accused was under frequent such attacks of unsoundness of mind and as a result of which on the day of incident though there was a public dinner at the nearby place for the marriage ceremony, the accused desisted from going to the place. He was, according to the evidence of Sanja Jiva, tied down many a times with rope and, also, four to five times when he was behaving in such a way to disturb the security and safety of the villagers. It would be interesting to note the evidence of prosecution witness No.6, Ratnabhai Fulabhai, examined at Ex.16, who has been declared as hostile witness by the prosecution. However, he has, clearly, admitted in the cross-examination that the accused was required to be tied down on account of unsoundness of mind and idiocy. It is, also, admitted by him that the accused was required to be shifted to hospital after tying him on account of unsoundness of mind. Of course, he is a hostile witness. However, this part of the story in his testimony is corroborating the version of the defence and supporting the evidence of his own real brother and the cousin brother of the accused, in so far as the unsoundness of mind and insanity of the accused is concerned. It is a settled proposition of law that merely because a witness has been declared hostile, the entire evidence need not be thrown out. A part of the evidence of such a witness can be relied on and in the present case, we find no reason to disbelieve or discard such part of his evidence supporting the plea of insanity. The evidence of real brother, cousin brother and the son of the accused is, partly, relied on by the Trial Court in so far as the culpability of the accused is concerned. We have not been able to comprehend as to why the close relatives of the accused, whose evidence is, partly, relied on, are not relied on, in so far as the plea of insanity is concerned. The reasons assigned by the Trial Court, in this behalf, are not convincing and not logical. As observed hereinbefore, the plea of insanity or for that purpose, any one of the general exceptions inscribed in Chapter V of the Indian Penal Code, the accused has not to establish beyond reasonable doubt, same as that of the prosecution is required. Even if it is probabilised, it can be considered by the Court. Once, such a plea is spelt out to be plausible or probabilised, it is for the prosecution to show that the incriminating act was not an outcome of the unsoundness of the mind resulting into knowing right or wrong or lawful or unlawful. The acts preceded and succeeded are also relevant to prove the plea of insanity. This proposition is also very well explored, expounded and established. The plea raised by the accused in claiming the general exception inscribed in section 84 of the IP Code is supported by the testimonies of the aforesaid prosecution witnesses and also by the defence witness Dr. R.B.Agarwal, examined at Ex.36. He is an independent witness who has no reason to testify in favour or against the accused. He is a practising Psychiatrist working as a Medical Officer and also running a private hospital since more than 18 years. He is M.D.Psychiatric, who has many patients not only from Gujarat, but even from adjoining States, like Rajasthan. He has, vividly, described the mental condition of the accused who was under his treatment and who was examined by him. From the evidence of Dr.Agarwal, it, clearly, and unequivocally, emerges that the accused had severe attack of unsoundness of mind resulting into uncontrollable mental condition. He had examined the accused lastly in his hospital, on 31.10.94. No doubt, the incident has occurred, on 10.6.95, almost, seven months after he, lastly examined the accused. However, it is also clear from the evidence of the brother and the son of the accused that during the last year preceding the date of incident, the mental condition of the accused was so bad and extreme that he was required to be tied down and watched rigourously by the family members. It is, in this context, necessary to appreciate the evidence of Dr. Agarwal, who is a Psychiatrist, under whose care and treatment the accused was given medication. It is, clearly, testified by him that the relatives of the accused were advised that the accused should be admitted as an indoor patient in his hospital, which was not acceptable to the relative of accused for the reasons not brought on record. It was, therefore, by Dr.Agarwal prescribed medicine and kept the accused in his medical management, rather than an indoor patient in his hospital. When the accused was examined by Dr.Agarwal, he was, totally, uncooperative and out of control having no sense of even clothes. He was not even able to properly speak. He had frequent change of not only gesture, but mental condition,