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TMI Blog1964 (3) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... capable of understanding the nature of his act. 3. 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 s. 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. On appeal the High Court agreed with that finding, though for different reasons, and confirmed the conviction and sentence of the accused. Hence the present appeal. 4. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o give judgment as to any legal right or liability dependent on the existence of fact which he asserts, must prove that those facts exist. 6. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 7. 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 s. 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as s. 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 in exception, under s. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prosecution, 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 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." 10. This Court in K. M. Nanavati v. State of Maharashtra [1962] Supp. 1 S.C.R. 567 had to consider the question of burden of proof in the context of a defence based on the exception embodied in s. 80 of the Indian Penal Code. In that context the law is summarized thus : "The alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 case [1962] Supp. 1 S.C.R. 567. A Scottish case, H.M. Advocate v. Fraser (1878) 4 Couper 70, 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to put questions under s. 154 of the Evidence Act only in the examination-in-chief 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-examination 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 s. 154 of the Evidence Act : that is governed by the provisions of s. 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 nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure followed by the learned Judge does not conflict with the express provisions of s. 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 v. The State of U.P. [1959] Supp. 2 S.C.R. 875 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperly; and that thereafter he went back to his village and sent a message through someone that he would go 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 P.W. 7, no doubt denied that Natverlal gave him the letter written by the accused, but the 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 P.W. 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 P.W. 7 to persuade his son not to discard his wife. P.W.s 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 supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 letter'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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 s. 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. 21. The subsequent events leading up to the trial make it abundantly clear that the plea of insanity was a belated afterthought 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. P.W. 16, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... 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