JUDGMENT
R.S. Garg, J.
1. The appellant being aggrieved by the judgment dated 30-12-1994 passed in Sessions Trial No. 4 of 1994 by the learned Second Additional Sessions Judge, Raigarh convicting the appellant under Section 304 Part-II, IPC and sentencing him to undergo rigorous imprisonment for eight years has filed this appeal,
2. The prosecution case in brief is that on 140-1993 Baju and Chhandu had gone to see the accused as he was a little unwell, at about 3/4 A.M. the accused hit Baju by means of an axe on the back of the left parietal region, after hearing the alarms and the shouts the other inmates of the house woke up and caught the accused. They found that Baju had died on the spot. A report was lodged at about 11.00 A.M. on which an inquest was made. The body of the deceased was inspected and sent for post-mortem. Stained and plain earth, mattress, bed-sheet and clothes of the accused so also the axe were recovered. The statements of the witnesses were recorded. After submission of the challan as the accused denied commission of the offence he was put to trial. During the course of the trial the accused raised the defence under Section 84 of the Indian Penal Code but however the learned Trial Court after hearing the parties recorded the findings against the accused and convicted and sentenced him as referred to above.
3. For proper appreciation of the defence arguments it would be necessary to see the provisions contained in Section 84 of the Indian Penal Code. The said Section reads as under :–
“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.
The intention of the legislature in enacting Section 84 was that as an insane person who is incapable of knowing what he is doing or that he is doing what
is wrong or contrary to law, cannot he said to have a guilty intention. He is exempted from punishment by virtue of this section. The law presumes every person to be sane and quite capable of distinguishing between right and wrong, till the contrary is proved. The burden to prove insanity is on the accused and it can be discharged by him by bringing direct evidence on record and may also be proved from circumstances which preceded, attended and followed the crime.
4. The rule of burden of proof in content of plea of insanity arc : (a) that the prosecution must prove beyond reasonable doubt that the offence was committed by the accused, (b) that it is rebuttable presumption that the prisoner was not insane when he committed offence, (c) that the accused may rebut the presumption of insanity at the relevant time bringing the case within Section 84 by producing oral, documentary, circumstantial and other materials and he may discharge the burden by establishing a reasonably probable case and (d) that even if the accused fails to establish affirmatively or conclusively that he was of unsound mind and committed the set under the circumstances set out in Section 84, but raises a reasonable doubt in the mind of the Court as regards presence of essential ingredients of the offence, which includes mens rea, the requisite criminal intention, 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. Where the accused pleads insanity at the time of the commission of the offence the burden of proof of such plea is entirely on the accused.
5. In the matter of State v. Ahmadulla (AIR 1961 SC998),Datiyabhai Chhaganbhai Thakkar v. State (AIR 1964 SC 1563), Ratan Lal v. State (AIR 1971 SC 778), Bhikari v. State (AIR 1966 SC 1) and Quamaiyattu v. State (AIR 1974 SC 216) the Supreme Court has observed that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed, the burden of proving which lies on the accused in order to seek the exemption provided in Section 84. In the matter of Sheralli Wali Mohammed v. State (AIR 1972 SC 2443) the Supreme Court has observed that it is not insanity of every description that can be pleaded in defence, it must be legal insanity which exonerates the accused from criminal liability.
6. In order to constitute legal insanity unsoundness of mind must be such as to make the offender incapable of knowing the nature of his act or that he is doing what is wrong or contrary to law.
7. According to the Supreme Court, as laid down in the matter of Amrit Bhushan v. State (AIR 1977 SC 608) medical insanity should be distinguished from legal insanity and unsoundness of mind which may amount to insanity from a medical point of view will not necessarily mean legal insanity for claiming exemption under Section 84, IPC. Legal insanity would always be different from eccentricity or changed behaviour. Ordinarily the defence that
the accused all of a sudden became insane and committed the offence would be highly improbable if judged from the conduct which preceded, attended and followed the crime, the Court if, is still convinced that the accused so did, the Court may grant the benefit of Section 84 to the accused.
8. The Indian Penal Code does not define ‘unsoundness of mind’. The Courts in Indian have treated this expression as equivalent to insanity. But the law limits the exemption from liability to those cases where the cognitive features are completely impaired and not to cases where the insanity affects only the emotion and the will. For appreciation of Section 84 it must be kept in mind that this section does not confer immunity from criminal liability in every case of insanity of the accused. Coupled with the insanity of the accused there must be the additional fact that at the time of the commission of the act, he in consequence of the insanity was incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law.
9. To claim the benefit under Section 84 of the Indian Penal Code the accused must satisfy the requirement of this section and it must be 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 as not to know that what he was doing was either wrong or contrary to law. The mere fact that on some occasions the accused had been subject to insane delusions or had suffered from derangement of the mind or had subsequently at times behaved like a mentally deficient person is per-se insufficient to bring his case within the exemption provided by Section 84. The incapacity must have existed at the time of his doing the act charged as an offence. A distinction must be made between insanity affecting the cognitive faculties of a man and that affecting the will or emotions. It is only the first type of insanity that is within the purview of the section. This section would be applicable even to a case in which the accused is subject to periodic fits of insanity. But in such cases it must be proved that at the time when he committed the alleged offence, he was suffering from such a fit of insanity. Irresistible impulse would not come within the purview of this section and would be no defence to the accused. Similarly, mental derangement of a partial type which at the time of the commission of the alleged offences, does not affect the capacity of the accused to understand the nature of his act or that he is doing what is morally or legally wrong, is not within the scope of this section. Mere eccentricity of behaviour will not prove that the person concerned was insane in the sense of this section. The mere fact that the accused had become highly excited and flew into a fury would not bring his case within the exemption and operate as a defence to a charge of murder committed by him in that state of mind. The mere fact that the accused was in a state of acute mental agitation, depression or despondency or that he was, for sometime before the act extremely moody, taciturn and so on will not prove that he was suffering from such unsoundness of mind as to make him incapable of knowing that he was doing or that his act was morally or legally wrong. I am referring to the legal
provisions and its interpretation so that the defence raised by the accused is properly appreciated.
10. Before proceeding to appreciate the evidence it must be kept in mind by a Court that insanity in the sense of this section is a question of fact and the burden is on the accused to prove that at the time of commission of offence he suffered with unsoundness of mind and as such incapable of knowing the nature of the act or that he was doing what is either wrong or contrary to law. The unsoundness of mind can be proved by scientific evidence and even the defence can be sustained under this section and the plea of insanity may be proved from inference of facts and circumstances of each case. The previous history of the mental condition of the accused would always be a relevant piece of evidence in determining the question whether insanity of the type mentioned in this section existed, at the time when he committed the alleged offence.
11. It would not be necessary for the accused to prove his defence beyond shadow of doubt but if he is successful in bringing the probabilities on record and convinces the Court that the defences raised by him are probable then the accused would always be in a position to give dent to the prosecution that at the time of commission of the offence because of unsoundness of mind he was incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
12. If the evidence throws light on the conduct of the accused that at the time of the incident the accused was aware that he was doing something wrong or contrary to law then the accused would not get the benefit of Section 84, IPC. The evidence relating to preparation precautions taken to avoid detection and attempt to conceal the evidence would always go against the accused. The relations of the accused who are likely to remain in intimate contact with the accused are proper witnesses as to the state of mind of the accused. Their evidence has to be appreciated in its proper perspective and cannot be ignored merely because they are relations of the accused.
13. In the present case to prove the guilt of the accused the prosecution has examined as many as 11 witnesses P.W. 1 Bholaram is the father of the accused. According to him the deceased Baju Urav was his brother. The witness says that his son Balsai became mentally sick (mid) but after his treatment he became normal. In relation to the incident he turned hostile. The father of the accused who could give the best evidence did not produce any further evidence as to what was derangement or mental sickness. On the other hand, from his statements it appears that the accused became all right after undergoing the treatment. In the cross-examination this witness has said that on the Tuesday the accused was all right but from the night of Wednesday he became insane, he was apprehensive and was abusing. The accused was saying that somebody was coming and was beating him. The statement of this witness do not help and assist the accused. P.W. 2 Sumitra Bai happens to be daughter
of the accused. She did not say anything about the incident and was declared hostile. In cross-examination in para she stated that the accused became mentally sick but after undergoing the treatment he became all right. She also stated that her father became mentally deranged and was running from one place to another. Her statement runs contrary to the statement of P.W. 1 Bholaram. According to P.W. 1 Bholaram the accused became mentally unwell on Wednesday evening while this witness suggested that the accused became unwell or mentally sick for three days. P.W. 3 Sukhamani, wife of the accused did not speak anything about the incident but in the cross-examination she said that the accused became mentally sick and became all right later on. She also stated that since three days prior to the alleged incident her husband became insane, he was apprehensive and was running from one place to another. P.W. 4 Jairam is an independent witness. According to him he was informed by Chhanduram that accused Balsai had committed murder of his uncle. After making his entry in the house of the accused he found that the accused was tied in ropes and was handled by some persons. He also found that the body of the deceased was lying on a mattress. When he asked the accused as to how it so happened the accused informed him that the deceased had eaten his two children, therefore, he committed murder of Baju Urav. The witnesses probably wanted to say that the accused was under a conception that by exercising witchcraft or sorcery the deceased caused death of two children of the accused. In the cross-examination he tried to suggest that the accused had become insane and was behaving abnormally. P.W. 5 Shobhnath also came to the spot after receiving the information. He had also stated that the accused was behaving abnormally when he had seen the accused. P.W. 6 Nansai was the witness to seizure etc. After admitting his signatures, in the cross-examination he stated that his signatures were obtained on the documents but he did not read the same. He, however, denied the suggestion of the defence that no seizures were made before him. P.W. 7 Jagarmati is the daughter of the deceased. According to her Sukhamani wife of the accused Balsai came to their house for inviting her father. Sukhamani had informed her that Balsai was acting abnormally. In the morning after hearing the cries they went to the house of the accused and found that the deceased was lying on the mattress. In para 3 she further stated that Sukhamani wife of the accused informed her that the accused hit the deceased by means of an axe. She, however, admitted that the accused was acting abnormally for sometime.
14. P.W. 8 Dr. K.D. Dubey had performed the post-mortem and gave the autopsy report. According to him the deceased had suffered a lacerated wound of 3″ x 1/2″ just above the right ear. On opening the body he found fracture of temporal bone ad-measuring 2″ x 2 1/2″ the bone was found in
pieces, haematoma of 1″ x 1″ over the temporal lobe. He certified that the injuries were anti-mortem. P.W. 9 Ujit Minj had recorded the first information report. P.W. 10 M.V. Pandey had made investigation. P.W. 11 Chandramani
Prasad Dubey had made certain seizures and had issued notices to the witnesses for inquest etc.
15. The only argument raised in this appeal is that the accused, because of the unsoundness of mind was incapable of knowing the nature of the act, or that he was incapable to understand the distinction between right and wrong, he was incapable of knowing that what he was doing was either wrong or contrary to law. In view of this argument it is not necessary to enter into the discussion about the death of the deceased, the homicidal nature of the death and that the accused was the author of the injury. Even otherwise from the evidence available on record, it would clearly appear that Baju Urav slept in the house of the deceased, the accused caused injury by means of an axe and the said injury resulted into the death of the deceased.
16. Shri Awadh Tripathi, learned counsel for the appellant placing strong reliance on the statements of the witnesses which had come in their cross-examination submits that the accused was mentally deranged and by reason of unsoundness of mind, was incapable of knowing the nature of the act and that because of the fits which he was suffering for last some days he was incapable of knowing that he was doing what was either wrong or contrary to law.
17. Shri Praful Bharat, learned counsel for the State on the other hand submits that the evidence of the witnesses does not meet the requirement of law.
18. It is to be noted that Guniya or Ojha (village doctor and sorcerer) has not been examined by the accused in his defence. Barring the oral statements which have come in the cross-examination the accused or his relations did not bring on record any fact that what was the sickness or at what time the accused suffered the particular mental sickness or mental derangement. The stereo type evidence simply says that about two years prior to the statements the accused had suffered same derangement and after his treatment he became absolutely all right. It is not the case of the defence nor the witnesses have said that in the said period of two years the accused acted abnormally or as an insane or mentally deranged because of insanity or unsoundness of mind. The witnesses in fact had stated that the accused was suffering with irresistible impulse and was staying that somebody was coming and was beating him. The evidence further is that the accused suffered with some aberrations of mind or he became eccentric. In the opinion of this Court the suggestions given by the witnesses in the cross-examination would not meet the requirement of law as the same would not amount to insanity of the degree and type to describe Section 84 that is incapacitating the accused at the time of committing the alleged offence from understanding what he was doing or that his act was morally or legally wrong. The annoyance or the fury, that the accused had become highly excited became violent or was running from one place to another would not bring his case within the section. The mental agitation,
depression or despondency as suggested by the witnesses in their cross-examination would again be not sufficient to bring the case of the accused under general exemption. From the statements of P.W. 4 Jairam it would appear that the accused informed him that he had hit the deceased on his head because the deceased caused death of his two children.
19. I have already observed that the crucial point of time under Section 84, at which the insanity of the accused in the sense of this Section must have existed, is the time when the alleged offence was committed by the accused. In the present case, from the statements of the relations of the accused who were examined as witnesses in the case it does not appear that at the time of the alleged incident, by reason of unsoundness of mind he was incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
20. The learned Trial Court, in the opinion of this Court, was absolutely justified in recording the findings against the accused.
21. The question of sentence was also pressed into service but the same has become of an academic nature because the accused continued to remain in jail from 2-10-1993 and by this time he has already undergone the jail sentence awarded to him.
22. After going through the entire evidence and the legal position I am unable to hold that the accused could make out a case for interference by this Court.
23. The appeal deserves to and is accordingly dismissed.
24. Criminal Appeal dismissed.