Madho Singh Mahi Singh vs The State

Teja Singh, C.J.—This is an appeal by Madho Singh from an order of the Sessions Judge, Barnala, convicting him u/s 323, I.P.C. for causing simple hurt to Mst. Nihal Kaur, and u/s 302, I.P.C for deliberately putting to death Gurcharaa Kaur, minor daughter of Mst. Nihal Kaur, and sentencing to one year''s R.I. on the first count and transportation for life under the other. Both the sentences have been ordered to run concurrent.

The occurrence which is the subject matter of the case, took place on 17-4-1950 in the compound of Mst. Nihal Kaur''s house. The Appellant & Mst. Nihal Kaur belong to village Haromajra. We are told that for some reason or the other the Ramdasis of the village had decided to boycott the Appellant who belongs to the same brotherhood and this created some sort of ill-will between him and other Ramdasis. On the fateful day, between 8 and 9 A.M., when Mst. Nihal Kaur was in the compound of her house, the Appellant came up armed with a Gandhali and caused two injuries on the head and one on the right arm of Mst. Nihal Kaur who fell down. On seeing this, Mst. Nihal Kaur''s daughter Gurcharan Kaur, who was aged about 4 years, ran towards the Baithak of Asa. The Appellant also ran after her and struck her on the head with the result that she too fell down and became unconscious. P.W. Amur Singh was the first to come to the scene of occurrence and witness the crime. He tried to catch hold of the Appellant but the latter resisted and they both started grappling with each other. In the meanwhile P.W. Asa Singh and Ishar Singh son of Mangal also came up and all three of them succeeded in getting hold of him. They took him to his brother Ishar Singh''s house and there chained him to a mulberry tree. Mst. Nihal Kaur started towards Maler Kotla with her daughter who was still unconscious. The child expired on the way. The reDort at the police station was lodged by Mst. Nihal Kaur about 1 P.M.

The police challaned the Appellant in the Court of A.D.M. Barnala u/s 304, I.P.C. but the A.D.M. convicted him u/s 304(II), I.P.C. and sentenced him to 3 years'' R.I and a fine of Rs. 200/- or in default of the payment of fine to 6 months'' further R.I. The A.D.M. also ordered that on the expiry of the applicant''s sentence, he should not be released unless he executed a personal bond with one surety in the amount of Rs. 2000/- to keep the peace and to be of good behaviour for a period of 3 years and if he failed in this, he would undergo additional R.I. for 3 years. From this order of the A.D.M., the Appellant preferred an appeal to the Sessions Judge Barnala. The learned Sessions Judge being of the view that there was reason to think that the Appellant was not in a fit mental condition to take part in his defence, allowed the appeal, set aside his conviction and sentence and remanded the case to the Court of A.D.M. for proceedings u/s 464, Code of Criminal Procedure

After the remand the Additional District Magistrate, ordered the Appellant to be kept under observation by the Civil Surgeon of the District and when this had been done, he recorded the statement of the Civil Surgeon as well as that of Dr. D.K. Jain, who had examine ed the Appellant immediately after his arrest, and came to the conclusion that he was of at sound mind and was in a fit condition for take part in the proceedings. As regards the merits of the case, the A.D.M. was of the view that there was a prima-facie case under Sections 302 and 323 against the Appellant and since the former offence could only be tried by the Sessions Judge, he charged the Appellant under both the Sections and committed him for trial to the Court of Session.

The first point that has been taken before us by the Appellant''s counsel is that the learned Sessions Judge was wrong in holding that the Appellant was not of unsound mind and was capable of making his defence. As I have already stated two medical witnesses gave evidence about the Appellant''s mental condition at the time the proceedings against him started. The first was Dr. Daya Kishan Jain. This gentleman gave his designation as Medical Officer of Malerkotla but did not say a word as regards his academic qualifications and experience. He deposed that when the Appellant was in judicial lock-up at Malerkotla, as doctor-in-charge of the lock-up he saw him several times and his opinion was that "his mental condition was not at all sound". He also deposed that the Appellant''s behaviour and movements were like those of an unsound person, and this opinion he had formed from the answers that he gave to the questions that he put to him. The doctor admitted that all that he was required to do at the time he saw the Appellant was to examine his injuries and no question arose about his mental condition. In addition he did not keep any note of the observations, that if at all he made from time to time, or the questions put to and the answers given by the Appellant. At least he did not produce any such record in Court in these circumstances I am not prepared to attach any importance to his evidence.

The second doctor is Dr. Harjas Rai, Civil Surgeon, Sangrur. The evidence that he gave was that after the Appellant had been admitted to the civil hospital. Evidently this must have been under the orders of the A.D.M. after the case had been remanded to him by the Sessions Judge. He kept him under observation from 15-3-1951 to 31-3-1951. The opinion that he formed after having kept the Appellant under observation for this period, and from the various circumstances to which he referred in his evidence, was that the Appellant was mentally sound and fit. This is the relevant part of his statement:

There was no history of alcoholism or of his being addicted now or in the past to any other intoxicant. He gave history of an injury to his head some time ago. But his scalp did not show any scar. He did not get any fit of any sort during the period specified above. During the period of his stay at Sangrur he had been behaving quite normally and sensibly answering all the questfons that were put to him from time to time.... His judgment of understanding questions and giving answers is normal. He is in my opinion capable of making his defence.

After the conclusion of the medical evidence, the Appellant was asked by the Sessions Judge if he wanted to produce any evidence in rebuttal, but he declined to do so. His counsel referred us to the parts of the evidence of Amar Singh and Asa who were examined at the trial with a view to proving the offence. The former averred that the Appellant suffered from rash every now and then but he could not say whether he was mad or not. The latter stated that at the time the Appellant suffered from rash he was sometimes seen sucking the blood out of the rash and that sometimes he was kept under chains by his relatives. Our attention was also drawn by the Appellant''s counsel to the evidence of the Appellant''s brother Ishar Singh D.W. 1 and Shadi D.W. 2. These witnesses came forward with the story that the Appellant suffered from fits of insanity before the occurrence, but, as has been pointed out by the learned Sessions. Judge in his judgment, their statements are discrepant on several points and unsupported as they are by any kind of medical evidence, no importance whatsoever can be attached to them. I may here add, that in order to find out whether an accused person is incapable of making his defence because of unsoundness of mind, what we have to take into consideration is his mental condition at the time the enquiry or trial against him starts and not at any previous occasion and on this point we have definite evidence of Dr. Harjas Rai, Civil Surgeon Sangrur, that he was mentally sound and in a fit position to make his defence. This point is, therefore, decided against the Appellant.

Now coming to the merits of the case. (His Lordship reviewed the evidence.) In view of all this, I have no hesitation in coming to the conclusion that the prosecution version was substantially correct, that the Appellant was proved to have caused injuries to Nihal Kaur and that the Appellant killed Mst. Gurcharaxt Kaur.

The Appellant''s counsel made an effort to convince us that even at the time he was alleged to have caused injuries to Nihal Kaur and Gurcharan Kaur, the Appellant was of unsound mind and by virtue of Section 84 of the I.P.C. what he did could not be described as an offence. The words of Section 84 are,

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.

As was pointed out by a Bench of the Patna High Court in - Narain Sahi Vs. Emperor, where a plea of insanity is raised u/s 84, the Court has to consider two issues: Firstly, whether the accused has established that at the time of committing the act he was of unsound mind. If he does not succeed in this preliminary issue, the pleat fails. Secondly, if he was of unsound mind whether he has established that the unsoundness of mind was of a degree and nature to satisfy one of the knowledge tests laid down by the section it was also held in that case that whether or not an accused at the time he committed the act was. of unsound mind is a matter of inference from his previous and contemporaneous acts, statements & demeanour and from any other relevant evidence as to insanity in his ancestors or relations, as to particular illness affecting the mind and from any medical evidence, that may be tendered, Mere eccentricity is not enough, there must be evidence to show that at the material time the accused was suffering from some definite or recognisable form of mental disease.

In - ''Bagga v. Emperor'' AIR 1931 Lah. 275 the High Court of Lahore held that there is a clear distinction between "medical insanity and "legal insanity" and the Courts are only concerned with the legal and not with the medical view of the question. The onus to prove insanity is on the accused person, and what he has to establish is that the mental condition referred to in Section 84 existed at the time when the act was committed.

To the same effect is the decision of the Allahabad High Court in - Pancha Vs. Emperor, The learned Judges observed that Section 84 places a heavy burden on the defence before the act can be excused. The mere fact that the accused mind was partially deranged or that he was subject to some uncontrollable impulse due to insanity would not do. The evidence ought to be sufficient for a categorical finding that at the time the accused committed the act he was of an unsound mind to such an extent that he was incapable of knowing that what he was doing at the time or knowing that what he was doing was wrong or contrary to Jaw. No doubt in order to find whether the accused was, by reason of unsoundness of mind, incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law, a Court may rely not only on the defence evidence but also on what is elicited from the prosecution witnesses as well as on circumstantial evidence consisting of the previous history of the accused and his subsequent conduct, and also, of course, on the surrounding circumstances including, an absence of motive. The fact that the prosecution evidence raises grave suspicions that the accused might have been of unsound mind in the legal sense of the term, is not by itself sufficient to discharge the onus of proof which lies on the accused.

Let us now examine the evidence in this case in the light of the above principles. It is not even alleged that there was any history of insanity in the Appellant''s family. All that his two witnesses deposed was that he was liable to fits of insanity and they particularly referred to rash that he developed occasionally, but in view of the admission of D.W. Ishar Singh, the Appellant''s own brother, that he never showed him to any doctor or physician, it appears to me that even if there was any trouble it could not have been of a serious kind. It was also admitted by the defence witnesses that even when the Appellant was kept under chains, he was set free to go out for easing himself. This strengthens the conclusion that it could not have been a case of real insanity and even if it was, the Appellant had lucid intervals. In order to find out what the Appellant''s mental condition was when, he injured Mst. Nihalo and Gurcharan Kaur the best evidence would have been of his behaviour before or after the incident or of what he did and said when ho was captured. Unfortunately no evidence whatsoever was given on this point and all that we know is that when efforts were made by Asa and other witnesses to capture him, he resisted and grappled with them. If it is possible to draw any inference from this conduct of the Appellant it can only be that he knew that he had done something which was wrong or unlawful and consequently he did not like to be captured. No question was put to the witnesses whether they asked the Appellant why he had attacked Nihalo and the little girl, nor did the defence witnesses say anything about it. The Sub-Inspector, however, deposed that whatever questions he put to the Appellant he answered them coherently and like a normal man.

If we take all these facts together with the evidence of Dr. Harjas Rai, Civil Surgeon, Sangrur, who kept the Appellant under observation for about 15 days, there can be no doubt that the plea that the Appellant was unsound at the time of the occurrence cannot be true. In any case the Appellant has not been able to establish that the unsoundness of his mind was such that it had made him incapable of knowing'' the nature of the act that he did, or that what he did was either wrong or contrary to law.

Much capital was made by his counsel out of the fact that there was no motive on the part of the Appellant to commit the crime. In the first place it is wrong to say that motive was absent altogether, because it is in the evidence of the prosecution witnesses that, because of the attitude of the brotherhood arid particularly of Nihalo''s family towards the Appellant, he was not very happy with them. grant that in case of a person possessing normal reason and intelligence, this can hardly be a motive for a deliberate murder, but different persons have different mentalities and it may be that the Appellant being of a sensitive nature, took the matter at heart and decided to avenge himself upon the poor woman as soon as he got his opportunity, or it may also be that something else happened which excited his feelings. In any case, as has been held in the cases cited above, mere absence of motive does not justify the conclusion that the accused was of unsound mind. In my judgment, therefore, Section 84 has no application whatsoever.

So far as Mst. Nihalo is concerned, the doctor''s evidence being that her injuries were simple, the case falls within the purview of Section 323, I.P.C. The difficulty is only with regard to Mst. Gurcharan Kaur. According to Dr. D.K. Jain, who conducted her post mortem examination, she had a contused mark on the top of the head 2" in length and 11/2 in breadth. In the middle of the mark there was a small contused wound and underneath it frontal bone and left parietal were found fractured. The fracture of the frontal bone extended to the whole length and that of the left parietal had separated it from the other parietal. Brain matter was oozing out at the sites of both the fractures and death, in the opinion of the doctor, was due to compression of brain. It was pointed out by the Appellant''s counsel that the doctor did not state that the injury was sufficient to cause death in the ordinary course of nature. This may-have been due either to the reason that no question was put to him on the point or to the carelessness on the part of the doctor himself. But when we look at the nature of the injuries and the result which is produced, we cannot but conclude that the injury must have been inflicted with a considerable force and whether or not it was not intended to cause death, it was sufficient to produce that result in the ordinary course. The Appellant is a grown-up man. We had the advantage of seeing him in Court. He is tall and fairly stout. His victim on the other hand was a mere child and when he hit her on the head with a heavy weapon like a Gandhali, there can be no doubt that the resulting injury even though not intended to cause death, was bound to result into it. The case in my opinion clearly falls within Clause Third of Section 300, I.P.C. and the Appellant was rightly convicted of murder. So far as the sentence is concerned the Appellant has already been awarded the lesser penalty produced u/s 302, I.P.C. Accordingly the appeal cannot succeed and must stand dismissed.

I wish, however, to add that this is a case in which the Government might consider the desirability of commuting the Appellant''s sentence for the offence of murder. Notwithstanding the fact that I have held that the Appellant was not able to prove that when he committed the offence he was of unsound mind and he was entitled to Section 84 of the I.P.C. I do think that his mental faculties were somewhat below normal and probably he was of excitable temperament. Then the case, though really unfortunate, was not one of deliberate murder. I am inclined to think that ends of justice would be amply served if the Appellant''s sentence for the offence of murder is commuted from transportation for life to 5 years, R.I. Accordingly I direct that a copy of this order should be forwarded to the Government for such action as they might like to take.

Gurnam Singh, J.

I agree.