Hemu Bechar vs The State

Thia is an appeal from a conviction of the appellant by the Sessions Judge, Jhalawad, u/s 302, Penal Code and a sentence of transportation for life.

The prosecution alleged that in the early morning of 20-7-1949 at about 4 or 5 A.M. the accused caused fatal injuries with a sharp edged instrument to his wife Bhagirathi as a result of which she died. The incident took place at Muli. The accused was apprehended in Junagadh on 22-7-1949 at about 8 P.M.

There is no doubt that the accused caused death of his wife Bhagirathi under circumstances that would amount to the offence of murder. The accused has, however, pleaded insanity and claimed immunity u/s 84, Penal Code. The deceased had 10 injuries two of which alone were sufficient to cause death in the ordinary course of nature. (After narrating the evidence the judgment proceeded:)

The defence centres round the plea of insanity. The learned Sessions Judge has very carefully considered all the evidence adduced in the case and has come to the conclusion that the accused was not by reason of any unsoundness of mind incapable of knowing the nature of the act done by him and thereafter he is not exempt from liability u/s 84, Penal Code. With this finding we entirely agree.

At the outset we may observe that this is not one of those cases of alleged insanity which require the patient to be kept under medical observation and where the absence of medical evidence on the point would constitute a serious flaw in the prosecution case. There is an indication in the evidence of the policeman Saidbin that the accused was sent to Limbdi Hospital but nothing further appears on the record as to what happened thereafter. No medical witness has been examined in the case as to the alleged insanity of the accused but for the reasons and circumstances of the case hereafter presently discussed, we are of the opinion that this lacuna of want of medical evidence has not prejudiced the accused. During the entire course of the trial both before the committing Magistrate and the Sessions Court there is nothing to suggest that the accused was insane during the period of the trial. Indeed, his examination in both Courts shows the usual intelligence of a normal person. In the committing Magistrate''s Court he has given rational answers to the questions put to him adding that he would further submit his written statement, which in fact he did. In the Sessions Court he has similarly given rational answers setting up the plea of insanity. He added that he might have been arrested at Junagadh and that the muddamal ''Jamaiya'' might have been recovered from his person but that he did not remember. He admitted the statements made in the Magistrate''s Court. So that, we have here an accused who has behaved like a normal person right from the day of his arrest at Junagadh. The case, therefore, rests upon the evidence of the alleged insanity of the accused at and before the time of the crime. To judge the state of the mind of the accused, his behaviour immediately after the crime would be very relevant. As observed in the case of Deorao v. Emperor AIR 1946 Nag. 321:

In all cases where legal insanity is set up, it is most material to consider the circumstances which have preceded, attended and followed the crime; whether there was deliberation and preparation for the act; whether it was done in a manner which showed a desire to concealment; whether after the crime the offender showed consciousness of guilt and made efforts to avoid detection and whether after the arrest he offered false excuses and made false statements.

In the same case it was further observed:

Every man is presumed to be sane and to possees sufficient degree of reason to be responsible for his crime until the contrary is proved. Every sane person is presumed to intend the natural and probable consequences of his act. u/s 105, Evidence Act, the onus is on the accused to establish legal insanity within the meaning of Section 84, Penal Code. The mere fact that an act or omission is without apparent motive is not by itself sufficient to establish insanity. But if there is other evidence of insanity such a fact may be of importance as helping to prove insanity.

This ruling was relied upon by the learned Advocate for the appellant as on the facts of that particular case the Court came to the conclusion that the accused was entitled to protection u/s 84, Penal Code.

To the same effect are the observations in the case of Dewa Rama v. Emperor AIR 1937 Lah. 486, relied upon by the learned Advocate for the appellant:

Section 84, Penal Code requires it to be proved that at the time when the offence was committed the offender 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. It would be obviously very difficult ordinarily to prove the precise state of offender''s mind at the time of the commission of an offence.

In that case also the Court held that the accused was entitled to immunity u/s 84, Penal Code as the Court came to the conclusion that it was established beyond doubt that accused murdered his wife and daughter under a state of mind which was unhinged by the death of his son and that he was suffering from great mental depression and insomnia and was subject to delusions and often became violent and there was no apparent motive for the crime of double murder of his wife and daughter. The learned Advocate-General drew our attention particularly to a ruling of the Lahore High Court. The case is reported in Mani Ram v. Emperor AIR 1927 Lah. 62, where it was held that the coexistence of 5 circumstances viz. (1) the absence of any motive, (2) absence of secrecy, (3) multiple murders. (4) want of pre-arrangement and (5) want of accomplices, were not sufficient to bring the case within the meaning of Section 84, Penal Code. The law requires proof of incapacity to realise the nature of the act and presumes that where a man''s mind or his faculties of ratiocination are sufficiently clear to apprehend what he is doing he must always be presumed to intend the consequences of the action he takes.

The Calcutta High Court in Kazi Bazlur Rahman Vs. Emperor, , similarly affirmed what has been laid down by several other High Courts. After discussing that the onus of proof lies upon the accused it observes that:

Uncontrollable impulse co-existing with the full possession of the reasoning powers is no defence in law nor is moral insanity i.e., existence of delusions which indicate a defect of sanity such as will relieve a person from criminal responsibility any defence in law. It is not mere eccentricity or singularity of manner that will suffice to establish the plea of insanity: it must be shown that the prisoner had no competent use of his understanding as as to know that he was doing a wrong thing in the particular act in question. When the commission of offence is clearly established the absence of motive is immaterial. The want of motive for the commission of crime and its being committed under circumstances which render detection inevitable are, no doubt, important points to be taken into consideration coupled with the other evidence on record on the question of insanity. But the fact that a horrible murder has been committed with no apparent motive does not lead to the inference that the perpetrator of the deed must have been mad at the time.

The case of Emperor v. Gedka AIR 1937 Pat. 863, is an important one laying down what Section 84, Penal Code requires in order to sustain a plea of insanity. It has been observed in that case that

it is only unsoundness of mind which materially impairs the cognitive faculties of the mind that conform a ground of exemption from criminal responsibility, the nature and extent of the unsoundness of mind required being such as would make the offender incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law. But where there !s a mere possibility that the accused may have, been insane at the time of commission of the act of murder, then in the absence of proof in the affirmative of the kind of insanity referred to in Section 84, Penal Code, the presumption is that the accused is responsible for his act.

In that case the accused murdered his wife, daughters and one son and caused grievous hurt to his other son and mother and before beginning to commit murder he shut the door of his house. He also threatened the life of his brother-in-law Baying that he had killed Ors. and would kill him too and on meeting a stranger after the commission of these acts he told him that he wanted poison to kill himself as he had finished with Ors. . The accused subsequently made a confession which showed that he had a clear recollection of what he had done. The medical evidence merely showed that the accused might have committed the offence in a temporary fit of insanity. The accused pleaded insanity in defence. It was held that the evidence showed that the accused knew what killing was, and meant to do it, knew what he had already done, knew who his brother and sister-in-law were and where they lived and the way to their place. So far as the nature of the act was concerned, the accused not only was capable of knowing it but did know it as will as any sane man. The accused was thus conscious of the nature of his act and must, therefore, be presumed to have been conscious of his criminality. In the absence, therefore, of proof in the affirmative of his insanity the mere probability of his being insane at the time of the murders perpetrated by him, would not be enough to absolve him of the criminal liability for them.

Bearing in mind the above principles laid down by the various authorities of the High Courts let us look into the facts of the present case. Each case of course depends upon its own particular facts. As stated above the conduct of the accused immediately after the commission of the crime right up to his conviction does not show any trace of his being of unsound mind. After dealing fatal injuries to his wife he was rebuked by his father whereupon being conscious of his crime and the serious consequences it would involve him he put on his coat having a wallet in its pocket containing money, & a gold ring and then absconded. He was found on 22nd July at Junagadh loitering about near a picture house at night by the police officer Sadarkhan. The accused successfully managed to reach Junagadh far away from Muli. There is some reason to show that why the accused of all places went to Junagadh. It is in evidence of father, Bechar, that Vajesang and the accused had been to Junagadh once before for "Sutsang". He, therefore, seems to have consciously directed his footsteps towards that place. On being questioned by the police officer he gave his name and address, his conduct was certainly not that of a demented person aimlessly wandering.

Now let us examine the direct evidence-in support of the plea of insanity. This evidence consists of the dying declarations of the deceased Bhagirathi and the evidence of his near relatives Vajesang, Bechar, Hira, Bhikhu and Jivubai. To this evidence is added the evidence of a neighbour named Gandalal. What can be gathered from the dying declarations of Bhagirathi is to the effect that during the year before the crime the accused was in the habit of quarrelling and beating his wife but that on the reprimands of his father he would cease from this objectionable behaviour, Vajesang (Ex. 3) states that he threw a meal which he had brought to the accused under the delusion that he was throwing it to a dog which was not there-and once he took off a Bachhadi and ran away towards the village Nayka. He further states that sometimes he would make gesticulations mishandle clothes and would scatter about the meals which were offered to him. Daring the last 15 days before the crime it is particularly alleged that he was showing advanced symptoms of insanity and would not recognise anything. The accused would abuse his wife, his father and all Ors. but he would quieten down, after two or four days and he would then apologise.

The accused''s father, Bechar, deposes-generally to the symptoms described by Vajesang and gives Anr. instance that the accused had once gone away, about four or five days previous'' to the attack, to Ramparda Station and returned in the evening. The accused stated that he-had returned because he was informed at the-station that the police carts had come for his wife. According to Bechar the accused had gone to his sister at Shekhpur from the station and reported the above facts to her. He states that when the accused came home he appeared to be insane and his eyes were scarlet red and he was staring about. He also adds that the accused would sometimes strip himself naked but when scolded by him he would put on the clothes. He gives Anr. instance of a paroxysm when the accused got up with a light and looked for an intruder who was not there but he admits that the accused was neither looked nor other wise kept under confinement.

Hira, the accused''s 12 years old daughter, deposes as to certain fits that the accused used to get when he became unconscious but at the same time she states that the accused used to till the field in the summer. Bhikhu used to carry meals in the morning. She adds that during the 8 days previous to the crime he was very mad. He would throw away food but he did not beat any body. It is particularly to be noted that she definitely Bays that on the day of the offence he had gone to the field for sowing Bajri in the morning. He was in the field for the whole day and returned home in the evening. He used to go for sowing during the 3 or 4 days before the occurrence and used to return home at night. She, however, states that Bhikhu used to be Bent with the accused so that the latter might not do mischief in the field or in the village. Bhikhu''s evidence generally describes the symptoms described by Vajesang in answer to leading questions formulated by the accused''s learned advocate. On the day of preoccurrence he states that the accused had gone to the field and returned borne at noon mealtime. He states that generally he used to be sent along with the accused to look after him and that the conduct of the accused was that of a mad man as sometimes he used to throw away food and strip himself. Jivubai, Bhikhu''a mother, merely states that the accused during the 15 days previous to the offence was completely mad and would sometimes strip himself naked.

Gandalal, the neighbour of the accused, deposes to the accused beating his wife frequently. He alleges that he owned a cart and the accused used to go in circles round the cart and if the witness accosted him, the accused would or would not reply and would Bit after looking here and there.

This is the substance of the evidence adduced in the case about the alleged insanity of the accused. All the witnesses except Gandalal are his near relations and they are naturally interested in securing bio acquittal. Their evidence on the question of insanity has, therefore, to be accepted with caution especially as it is beyond doubt as stated above that the accused had acted as a normal man immediately after the incident. The learned Advocate-General has further pointed out from the evidence recorded that for 3 or 4 days before the crime, the accused was attending to the sowing operations alone and ploughing the field. The father Bechar had a sons one of whom had died whose son is Bhikhu. The father had allotted to each of the sons separate cultivations and the accused was given one of the fields. On the day of the incident itself the accused''s behaviour was normal. He had gone to the field and had returned and there was nothing to indicate that he had any paroxysm of insanity. The accused was no doubt eccentric in his behaviour and was in the habit of boating his wife. On the night of the murder the accused woke up his wife at 1 A.M. and asked her to accompany him for answering a call of nature. The deceased refused to accompany him alone at night; time fearing some injury whereafter they went to bed as usual. At about 4 or 5 A.M. the accused dealt fatal blows to his wife. He was reprimanded by his father and realising the crime that he had committed he put on his coat, took some money and a ring and fled. This does not appear to be the conduct of a person who was not conscious of the criminality of the act done by him. His subsequent behaviour has been that of a normal man. The learned Sessions Judge is of the opinion that the near relatives who have given evidence of insanity had exaggerated in the interest of the accused. With this opinion we agree. We are consequently of the opinion that there is no proof that the accused was at the time of the crime by reason of unsoundness of mind incapable of knowing the nature of the act or that it was either wrong or contrary to law. Under the circumstances we dismiss this appeal and maintain the conviction and sentence.