Krishna Dev Shukla vs State of U.P.

Anurag Kumar, J.—The accused Krishna Dev Shukla has preferred this appeal to challenge the Judgment and order of the trial court dated 10.1.2003 passed in S.T. No. 960 of 1998, State v. Krishna Dev Shukla, u/s 302, I.P.C. in Crime No. 157 of 1998, P.S. Cantt., Lucknow, whereby, the appellant had been held guilty for the offence u/s 304 (Part-II.), I.P.C. in place of offence u/s 302, I.P.C. and has been sentenced to undergo a sentence of seven years rigorous imprisonment. As per prosecution case, on 1.6.1998, a written report was filed by the complainant Tribhuvan Singh father of the deceased Sarvesh Kumar Singh at Police Station Cantt. Lucknow alleging that on 19.6.1998 at about 7.40 p.m. Sarvesh Kumar Singh his son was standing before his door in front of the shop and accused Krishna Dev Shukla, fired at deceased Sarvesh Kumar with his licenced gun causing gun shot injuries on his head. His son was brought to the Command Hospital where he was declared dead the occurrence had been witnessed by Vishwa Nath Singh and Chandra Bhushan Mishra and other mohalla people in electric light. On the basis of this written report, chick F.I.R. was prepared and a case u/s 302, I.P.C. was registered against the accused Krishna Dev Shukla, in which, police started investigation and after conclusion of investigation, police filed a charge-sheet against the appellant in court. On 29.8.1998, the case of the accused was committed to the court of Session for trial, by C.J.M., Lucknow. The case was transferred to Special Additional Sessions Judge, who framed charge against the accused-appellant u/s 302, I.P.C. Case was later transferred to the court of Additional Sessions Judge (F.T.C.), Lucknow. The prosecution examined ten witnesses and after examination of the accused-appellant u/s 313, Cr.P.C., the trial court after hearing the arguments of both side held appellant guilty of an offence u/s 304 (Part II), I.P.C. instead of Section 302, I.P.C. and awarded the sentence referred above. Hence, this appeal was filed by the accused-appellant to challenge the conviction and sentence.

Heard learned counsel for the appellant Sri Aditya Singh and Sri M.Y. Ansari, learned A.G.A.

Learned counsel for the appellant mainly rests his argument on the point that at the time of incident appellant was of unsound mind and he is not capable of understanding what he is doing and he is entitled to get the benefit of Section 84 of I.P.C. as it is clear from the judgment itself that the appellant is of unsound mind. Trial court in his judgment came to the conclusion that there might some disturbance in the mind of the accused. He also submits that from perusal of entire facts and circumstances, it is quite clear that at the time of incident, appellant is of unsound mind. No motive was assigned to the accused-appellant for committing the offence. It proves that appellant fired at deceased in his insanity. Learned court without sufficient reason rejected the plea of Section 84 of I.P.C. and held accused-appellant guilty u/s 304. (Part II) of the I.P.C.

Learned A.G.A. vehemently opposed the contention of the appellant''s counsel and submitted that the burden of claiming benefit of Section 84 of I.P.C. lies on the accused-appellant and he totally fails to discharge that burden. There is no evidence on record that at the time of incident appellant was of unsound mind and he is entitled to get the benefit of Section 84 of the I.P.C.

Before considering the submission of both side, it would be convenient to notice the relevant aspect of law of the plea of insanity. At the outset. I considered the material provisions. The said provisions of Sections 299 and 84 of Indian Penal Code which are as follows:

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.

The provisions of Sections 105 and 4 of Indian Evidence Act are also important in this regard which are as follows:

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, u/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 the absence of such circumstances. u/s 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 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 consider 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 u/s 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 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 I.P.C. 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 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.

Now we come to the merits of the case. The prosecution examined ten witnesses in all, but only eyewitness was P.W. 3 Sri Krishna Kumar who has seen all the occurrence. In his statement, he specifically stated that he alongwith deceased Sarvesh Kumar and one Rakesh Kumar was standing and talking to each other. He also stated that accused opened fire on Sarvesh Kumar, who received gun shot injuries on his head. From the statement of P.W. 3, it is clear that accused-appellant intentionally fired at deceased Sarvesh Kumar, who received gun shot injuries. There is nothing in his evidence which creates any kind of doubt in his statement. P.W. 1 also supported the prosecution version stating that he saw accused-appellant on the roof of his house having gun in his hand. From the entire evidence of the prosecution, it is fully proved that appellant fired with licenced gun at deceased Sarvesh Kumar and due to that fire injuries he died. The prosecution discharged his burden and fully proved the case against the appellant.

Now it is on the accused to prove his unsoundness at the time of Incident to claim the benefit of Section 84 of the I.P.C. It is on the defence to prove that at the time of incident the mental capability of the accused is such that he is unable to understand the nature of the act. The appellant''s counsel submitted that from the certificate filed by the accused-appellant of the Mental Hospital, Agra, showing that the accused was admitted there during the period of 21.11.1995 to 18.12.1995, fully proved that his mental condition was not fit and he is a person of unsound mind. Learned trial court rejected this plea of the accused-appellant rightly on the ground that the period of admission of accused-appellant in mental hospital is long before of the incident on 1.6.1998. As per certificate, it is also clear that at the time of discharge on 8.12.1995, the appellant was mentally fit.

Learned counsel for the appellant also placed reliance on the order-sheet of the court dated 2.12.1998 and 20.2.1999 showing that the accused-appellant was admitted during that period in mental hospital of Medical College. Lucknow. It is true that the appellant was admitted in medical college on that dates, but there is nothing on the record which shows that at the time of occurrence the appellant is of unsound mind. The burden is on the defence u/s 105 of the Evidence Act to prove that at the time of occurrence accused appellant is of unsound mind. At this juncture, it will be worthwhile to mention here that the appellant was in defence service and after retirement, he got appointment in the Punjab National Bank. At the time of occurrence he was working as Guard in the Punjab National Bank. It is not possible for a bank to keep a person of unsound mind as his guard. The bank guard always remains on duty with his gun during duty period, but no such type of incident is reported prior to this incident in which the accused had opened fire on any one while he was working in the bank or any where after the duty. There is no evidence on record which shows that accused-appellant is behaving like an unsound mind person even occasionally, it was never proved by the accused-appellant that at the time of incident his mental condition was not proper and he committed the aforesaid act due to unsoundness of his mind and he is incapable of knowing the nature of the act at the time of commission of offence.

Regarding submission of appellant''s counsel that appellant''s mental condition is not sound at the time of occurrence also proves by the fact that no motive was assigned for committing the act. It is true that there is no motive in the prosecution version, but in this respect the legal position regarding proof of motive is an essential requirement for bringing home the guilt of the accused is fairly well-settled by a long line of decisions of the Hon''ble Apex Court.

Hon''ble Apex Court in Sheo Shankar Singh Vs. State of Jharkhand and Another, , held as follows:

There is a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye-witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eyewitnesses comes to the conclusion that the version given by them is credible absence of evidence to prove the motive is rendered inconsequential.

From the above law laid down by the Hon''ble Apex Court, it is quite clear that in the present case also prosecution proved through direct evidence regarding committal of offence by accused appellant and lack of motive looses its effect.

After recording the evidence as many as ten witnesses by the trial court, appellant himself was examined u/s 313. Cr.P.C. and the appellant gave reply to all questions put to him u/s 313, Cr.P.C. It appears that he gave answers in such a way which shows his mental alertness regarding relevant questions put to him. In his statement, he has not taken any plea of this mental sickness.

Learned counsel for the appellant has relied on the case of Debeswar Bhuyan v. State of Assam, 2012 (2) Acquittal 300 (Gau), in which the Division Bench of Gauhati High Court held that burden of proving existence of circumstances bringing the case within purview of Section 84, I.P.C. would lie upon accused. Evidence however, may not be sufficient to discharge burden u/s 105 of Evidence Act it may raise a reasonable doubt in mind of Judge as regards any of the necessary ingredients of offence.

Hon''ble Apex Court in the case of Siddhapal Kamala Yadav Vs. State of Maharashtra, , held as under:

u/s 84, I.P.C. a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is. however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong. The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. Every person is presumed to know the natural consequences of his act. Similarly, every person is also presumed to know the law. The prosecution has not to establish these facts.

Further Hon''ble Apex Court in the case of Siddhapal Kamala Yadav (supra) also held that crucial time for deciding availability of benefit u/s 84 of the I.P.C. is time when offence is committed. Character of crime cannot by itself be ground to benefit.

Further Hon''ble Apex Court in the case of Siddhapal Kamala Yadav (supra) also held as under:

The section itself provides that the benefit is available only after it is 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 that even if he did not know it. It was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of: exemption from criminal responsibility. Stephen in History of the Criminal Law of England, Vol. II, page 166 has observed that if a person cuts off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be Incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realise the nature of the act and presumes that where a man''s mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section This Court in Sheralli Wali Mohammed Vs. The State of Maharashtra, , held that the mere fact that no motive has been proved why the accused murdered his wife and child or the fact that he made no attempt to run away when the door was broken open would not indicate that he was insane or that he did not have necessary mens rea for the offence. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behavior of a psychopath affords no protection u/s 84 as the law contained in that section is still squarely based on the outdated Naughton rules of 19th Century England. The provisions of Section 84 are in substance the same as that laid down in the answers of the Judges to the questions put to them by the House of Lords, in M. Naughton''s case, (1843) 4 St Tr (NS) 847. Behavior, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender''s mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. A lucid interval of an Insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or prefect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act; but merely a cessation of the violent symptoms of the disorder is not sufficient.

At this Juncture we may notice the Section 105 of the Evidence Act, 1872 which clearly provides that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of general exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the Indian Penal Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Therefore, in this case, since the appellant is seeking benefit of exception u/s 84 of the Indian Penal Code, therefore, it is the duty of the appellant-accused to prove the existence of circumstances, bringing his case within the said exception, i.e., u/s 84 because Section 84 of Indian Penal Code, is exception to definitions of offences and makes the act of a person of unsound mind no offence in a case when if some act would have been done by the man of sound mind that would have been offence and would have been punishable under the provisions of the Indian Penal Code. Section 106 of the Evidence Act, 1872 further provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him and the appellant totally failed to proved that his case covered u/s 84 of I.P.C. From the above discussion, I am of the view that accused/appellant is not entitled to get the benefit of Section 84 of the I.P.C.

At this juncture, considering the law laid down by the Hon''ble Apex Court in Siddhapal Kamala Yadav (supra), I may observe that relevant issue is only that whether the accused was man of unsound mind at the time of commission of offence, which is proved beyond reasonable doubt by the prosecution, and the mental condition of the appellant at the time of trial or at the time of hearing of this appeal is irrelevant for the purpose of Section 84 of I.P.C. From the perusal of record and above discussion, it is quite clear that prosecution proved his case beyond doubt against accused-appellant and appellant totally fail to prove that at the time of Incident he is of unsound mind and his mental condition is not such that he is capable of knowing the nature of the act.

From the above discussion, it is quite clear that there no force in the submission of the appellant''s counsel and as such the appeal of the appellant deserves to be dismissed and hence it is dismissed.

The conviction and sentence recorded by the trial court against the accused/appellant Krishna Dev Shukla are affirmed. The accused/appellant is on bail, he shall be taken into custody by the trial court concerned and he shall be sent to jail to serve out the remaining sentence. The office is directed to return the lower court record expeditiously alongwith copy of this judgment for necessary action.