Skip to content


The State Vs. Durgacharan Barik Alias Duria - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberDeath Reference No. 5 of 1962 and Criminal Appeal No. 125 of 1962
Judge
Reported inAIR1963Ori33
ActsIndian Penal Code (IPC), 1860 - Sections 84 and 302; Evidence Act - Sections 4 and 105
AppellantThe State
RespondentDurgacharan Barik Alias Duria
Appellant AdvocateGovt. Adv. in Death Ref. No. 5 of 1962 and ;K.S.R. Murty, Adv. in Cr. Appeal No. 125/62
Respondent AdvocateK.S.R. Murty, Adv. in Death Ref. No. 5 of 1962 and ;Govt. Adv. in Cr. Appeal No. 125/62
Excerpt:
.....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 if any on record, and his subsequent conduct and also of course on the surrounding circumstances including an absence of motive. such persons though insane, would refrain from committing any acts of violence or mischief if more powerful men are present, in the words of bramwell b. he complained of pain on his head. in fact, the deceased had gone to the accused's saloon for shaving and asked the accused to shave him clearly. after killing, the accused sat over the dead body of the deceased and thrust his (accused's) fingers into..........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 if any on record, and his subsequent conduct and also of course on the surrounding circumstances including an absence of motive. the fact that the prosecution evidence raises a mere vague suspicion that the accused might have been of unsound mind of a very minor type is not by itself sufficient to discharge the onus of proof which lies on the accused.7. the legal conception of insanity differs considerably from the medical conception. it is not every form of insanity or madness that is recognised by law as a sufficient excuse......
Judgment:

Barman, J.

1. The accused Durga Charan Barik (appellant) herein, a young barber aged twenty-two years, killed one Sankar alias Lingaraj Mekap, a boy of eighteen years, by causing three long gaping injuries by razor cuts in the neck and throat in the heart of Puri town in front of jagannath Temple at broad day light in the morning of February 25, 1962. The defence took the plea of unsoundness of mind. The learned trial Judge convicted the accused of murder and sentenced him to death.

2. What happened was this. The accused was a proprietor of a saloon, in Puri Town and he had an assistant. On February 25, 1962 which was a Sunday, at about. 7-30 A.M. in the morning, the deceased went to the saloon of the accused for getting himself shaved. By that time two persons had already come for shaving and hair cut. In fact, there were two shaving chairs In the saloon so that two men could be served at a time. The deceased, in his turn, sat on one of the shaving chairs and he was being shaved by the accused's assistant while the accused himself was serving one after another on the other chair. While thus the accused was shaving one of his customers, there was some talk between the deceased and the other customers about some body, intimately known to the accused, having stolen shoes. In the midst of the talk, for reasons not quite clear from evidence on record, the accused suddenly left the further shaving of the other customer and took up the shaving of the deceased and asked his assistant to shave the other customer.

A little while after the change of place of the barbers in course of shaving operation, the accused inflicted a long gaping cut injury on the right side of the neck of the deceased. The accused was then holding the hairs of the deceased. The deceased was struggling to leave the place. The deceased managed to release himself and ran out of the saloon towards an adjacent shop. The accused pursued the deceased. The accused was still holding the open razor in his hand with the blade of the razor smeared with blood. The accused again caught hold of the hairs of the deceased, and, inflicted another razor cut on the upper surface of the left jaw spreading to the neck. The accused did not rest there. He gave another razor cut on the front side of the neck of the deceased thereby cutting the throat deep. The deceased died on the spot. The accused then sat on the chest of the deceased who was lying dead on the ground. The evidence of the eye-witnesses is that the accused then thrust his fingers into the opening caused on the front side of the neck of the deceased by razor cut and pulled out some cords from inside.

By that time people on the road intervened and gave the accused a few blows and one of the eye witnesses poured some hot water on the accused. The accused then left the deceased and ran away from the place. Then some of the persons who assembled chased the accused and there was an alarm raised by the people. In the meantime a Havildar with a Constable was coming on the way the accused was running. At the sight of the policemen, the accused turned round and ran to the direction from which the accused was coming. Some persons then apprehended the accused. The accused was brought back to the place where the dead body of the deceased was lying. In due course, investigation was taken up by the police. The accused was arrested, kept under observation of a doctor and ultimately sent up for trial.

3. The only question is: Was the accused, at the time of killing the deceased, a person of unsound mind in the legal sense of the term? Section 84 in Chapter IV of the Indian Penal Code, laying down the 'General Exceptions', provides as follows:

'84 Act of a person of unsound mind. 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 regards burden of proof, Section 105 Indian Evidence Act is this':

'105. Burden of proving that case of accused comes within exception -- When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exception in the I. P. C, or within any special exception of 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.'

The words 'shall presume', occurring in Sec. 105 Indian Evidence Act quoted above, have also been defined in Section 4 of the Evidence Act which, so far is material, is set out as follows:

'4. xx xx xx xx xx xx 'Shall presume' -- Whenever it is directed by thisAct that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. xx xx xx xx xx xx

These provisions are but statutory recognition of the principles borrowed from the most elaborate and authoritative exposition of the English Common Law of insanity as embodied in answers of 15 Judges given as early as 1843 to the questions put to them by the House of Lords in consequence of the popular alarm provoked by the acquittal of Daniel Mc.Naghten who shot dead Mr. Edward Drummond, the private Secretary to Sir Robert Peel. The learned Judges unanimously laid down that.

'notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievances or injury........he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law. .........

xx xx xx xx xx xx 'every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes until the contrary is proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party 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, if he did know it, that he did not know he was doing what was wrong.'

What were laid down as early as 1843 in M'Naghten's case (1843) 10 Ci and Fin 200 : 8 ER 718 were adopted in the Indian statutes, and indeed the entire M'Naghten's principles were spread over Section 84 Indian Penal Code and Section 105 read with Section 4, Evidence Act 1872 all as quoted above.

4. The legal import of the words--

'is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.'

occurring in Section 84 I. P. C., has been clarified in the answers given by the Judges in England in M'Naghten's case, (1843) 10 CI and Fin 200. The actual knowledge of the law of the land is not essential. What the English Judges meant and laid down was this: The law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do and if that act was at the same time contrary to law of the land, he fs punishable and the usual course therefore is to leave the question to the Jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong. Therefore the question to be determined is, whether at the time the act in question was committed, the accused had or had not the Use of understanding, so as to know that he was doing a wrong or wicked act. If the Court should be of opinion, that the accused was not sensible, at the time he committed it, that he was violating the law both of God and man, then he would be entitled to a verdict in his favour; but if, on the contrary, the Court is of opinion that when he committed the act he was in a sound state of mind, then the Court's verdict must be against him. As to what kind and degree of insanity would amount to a defence the law is this: To render a person irresponsible for crime on account of unsoundness of mind, the unsoundness should, according to the law as it has long been understood and held, be such as render him incapable of knowing right from wrong. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case.

5. The Courts in India have consistently followed these principles. The accused is not called upon to prove the ingredients of the provisions of Section 84 I. P. C, beyond all reasonable doubt in order to get an order of acquittal. It will be sufficient if on a review of all the evidence before the Court, the Court feels that the ingredients required under the section may reasonably be probable, the accused is entitled to acquittal or, in other words, on a review of the entire evidence, if the Court entertains a reasonable doubt about the guilt of the accused, he is entitled to an acquittal In the case, on the cardinal principles of criminal justice which have not been affected by the special provisions of section 105, Indian Evidence Act. Thus, it is sufficient for the defence to raise reasonable doubt, and necessarily the standard of proof required is not the same for the defence as for the prosecution, so that if the defence case of insanity is found on evidence to be probable, then the accused is entitled to an acquittal. The question is not whether the accused has established insanity categorically. The question is whether, regard being had to the circumstances, the court should act on the supposition that there was a reasonable probability that the accused acted while his cogitative faculties were impaired to the extent of his not realising that what he was doing was wrong or contrary to law.

6. Section 84 of the Penal Code and Section 105, read with Section 4 of the Evidence Act however, place a heavy burden on the defence before the act can be excused. The effect of Section 4 of the Indian Evidence Act interpreting the words 'shall presume' is that the Court shall regard the absence of unsoundness of mind as proved, unless and until it is disproved. The mere fact that the accused's mind was partially deranged or that he was subject to some uncontrollable impulse due to insanity would not do. So long as the accused was not insane as to make it impossible for him to know the nature of the act or to realise that his act was wrong or contrary to law, he would be guilty of the offence committed by him. The evidence ought to be sufficient for a categorical finding that at the time when the accused committed the act he was of unsound mind to such an extent that he was incapable of knowing what he was doing was wrong or contrary to law.

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 if any on record, and his subsequent conduct and also of course on the surrounding circumstances including an absence of motive. The fact that the prosecution evidence raises a mere vague suspicion that the accused might have been of unsound mind of a very minor type is not by itself sufficient to discharge the onus of proof which lies on the accused.

7. The legal conception of insanity differs considerably from the medical conception. It is not every form of insanity or madness that is recognised by law as a sufficient excuse. Indeed nothing short of the particular degree of insanity as laid down in. Section 84 I. P. C. would bring the case within the exception. All other forms of insanity and all other minor aberrations of mind which are recognised by the medical science as amounting to madness are excluded in the eye of law. At one time there was considerable divergence of opinion between medical and legal opinions. According to medical science, insanity is another name for mental abnormality due to various causes and existing in various degrees. Even an uncontrollable impulse driving a man to kill or wound comes within its scope; but a man whom the medical science would pronounce as insane does not necessarily take leave of his emotions and feelings, such as fear, frustration, revenge etc. Such persons though insane, would refrain from committing any acts of violence or mischief if more powerful men are present, In the words of Bramwell B. 'there are mad men who would not have yielded to their insanity, if a policeman had been at their elbow'.

8. The defence point in substance is that there is something unaccountable in the accused's act of killing the deceased, which will show him to be such a mad man as is to be exempted from punishment. In support of the plea, the defence relied on the following circumstances : The night before the occurrence the accused had no sleep. He had to be carried by his assistant by rickshaw from the saloon to the house of his elder brother. The accused is said to have dropped down on the ground twice or thrice on the verandah that night. He complained of pain on his head. He and the deceased were not on inimical terms. In fact, the deceased had gone to the accused's saloon for shaving and asked the accused to shave him clearly. The deceased had no apprehension in his mind even at the time of the incident.

9. That apart, the defence also relied on certain abnormal behaviour of the accused at the time of the incident to show that he was a person of unsound mind. The curious ways the accused behaved during the incident were these: After killing, the accused sat over the dead body of the deceased and thrust his (accused's) fingers into the opening caused on the from side of the neck of the deceased by razor-cuts and the accused looked like pulling out some cords from inside. The accused did not utter any word and remained mute. He returned voluntarily to the place where the deceased's dead body was lying. It is alleged that the accused did not make any attempt to escape. He did not put forward any excuse for the killing. He did not make any attempt either to conceal or screen himself or to screen the razor with which he killed. The very killing itself was atrocious. He is alleged to have no motive to kill. He had no accomplices. Lastly, the very time and place of the killing at broad cay light in a public thoroughfare are themselves said to be sufficient evidence of the accused's unsoundness of mind.

10. Assuming all these circumstances to he true even so the question still remains: Has the accused succeeded in discharging the burden of proving unsoundness of mind in the legal sense? In the present case, there is no evidence of previous history of insanity on record. There is no back ground of insanity nor any evidence of previous outbursts of violence or exhibition of madness or of any circumstance to prove that the accusad was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. Even eccentricity or unsoundness of mind of a very minor type is not sufficient. It is not even every kind of idle and frantic humour of a man, or something unaccountable in his actions, which will show him to be such a mad man as is to be exempted from punishment; but where a man is totally deprived of his understanding and memory, and does not know what he is doing, any more than a wild beast, he will properly be exempted from the punishment of the law.

The circumstances here do not show that the accused lost all control over himself. This is obvious from the following facts: The accused was owner of the saloon and he was following his normal profession as a barber for some months prior to and up to the very moment of the occurrence itself. The accused used to look after his affairs and there is no evidence that he had to enlist the support of anybody to help him in his ordinary life. The evidence is that the accused always used to talk, behave and work like any other average normal man. Even at the time of the occurrence, the accused was absolutely normal. He was serving his clients one after the other and giving directions to his assistant. The circumstances on which the defence relies are innocuous. They do not establish insanity or even probability of insanity. These circumstances are consistent with the behaviour of a sane person. The defence has failed to discharge the burden of proof.

11. There is one significant aspect. It is evident that at the time of the occurrence, the accused's natural emotions and feelings, as of a normal person, stilt governed his mind and had not left him. He was conscious that he had done something wrong. He exhibited fear. He wanted to escape. It is not that he behaved like an idiot devoid of understanding. The accused in fact was running away from the place of occurrence. The evidence of the Havildar, -- who saw the accused running, --is this:

'On that day at 7-30 A.M. I was coming from the Out-post towards the temple of Lord Jagannath as had duty in the temple. Before I reached Gandua Chaura, I heard about a murder having taken place at Paschim Dwar. So I ran up. Constable No. 261 was also coming with me. When I reached Gandua Chaura, I found the accused was coining running to Gandua Chaura and behind him coming many persons. Seeing me the accused turned round and ran to the direction from which he was coming. Alter the accused thus ran for some distance, he was caught hold by some persons. I also reached near the accused when he was apprehended by the people. The accused was then brought to the place where the dead body was lying. '

It is not correct that the accused was not trying to escape. In fact, the accused got afraid at the very sight of the policeman. The accused, in the normal course of conduct of a guilty man, immediately reacted to the presence of the policemen. The feeling of fear was apparently governing his mind at the time of the occurrence. The saying of Bramwell B.,--that there are mad men who would not have yielded to their insanity, if a policeman had been at their elbow,--proved itself true. This shows that the accused had a guilty conscience. He ran away from the spot of murder when the hulla was raised and then turned round at the sight of the Havildar and the Constable.

12. The evidence of the doctor who kept the accused under observation for more than a month is that he found the accused in a completely normal state. Neither the learned Committing Magistrate nor the learned Sessions Judge on watching the behaviour of the accused suspected that the accused was really insane.

13. As to motive, the defence case is that the accused had no motive to kill the deceased. Motive cannot admit of any direct positive evidence. If nothing is known to the people in the locality which would lead the accused to commit murder of a particular individual, it is in general safe to accept a fact that there was no motive on the part of the accused to commit the crime. There is no burden of proof on the prosecution to establish the existence of any motive. In the present case no serious attempt appears to have been made to discover it.

14. Even then, in the present case there is evidence of some motive for the crime in the background, it must be borne in mind that a trivial motive which may not be strong enough to impel a normal man to act in a particular way, may be quite sufficient for an abnormal person. The circumstances which indicate or suggest some motive -- however vague -- are these : The accused had homo-sexual tendency. The accused was in the habit of committing unnatural offence with young boys. The accused and deceased had some sort of intimacy between them. There is also evidence of previous quarrel between the two youngsters. Once there was even an altercation between them over the accused having caused damage to a cycle which the deceased was given by his master for use. The accused with a habitual homo-sexual back-ground, had presumably certain secrets which the deceased apparently knew. In fact during the said altercation the deceased threatened that he would divulge what he had heard about the accused. The accused out of fear even offered money to the deceased to stop the deceased's mouth; but the deceased refused and threw away the money.

15. That apart, the accused's sudden change over front the other customer to the deceased while already on the other shaving chair and the fact of the accused having pursued the deceased to the road after the first gaping cut as aforesaid show that there was method in the madness. It was probably out of some deep-seated feeling of revenge or fear of his secrets being divulged by the deceased that the accused had killed the deceased. This spirit of defence, -- which governed the deceased's mind,--accounts for the ghastly way the accused behaved sitting over the dead body of the deceased as aforesaid. In my opinion, it is not altogether a motiveless murder. In a criminal trial failure to prove a motive does not necessarily mean that there v/as no motive for the crime. The circumstances of an act being apparently motiveless is not a ground from which the existence of a powerful or irresistible influence or nomicidal tendency can be inferred. Motives exist unknown and innumerable which might prompt the act. Mysterious is the working of human mind.

16. I therefore come to the conclusion that the case of the accused, as disclosed by the evidence does not fall within the exception under Section 84 I. P. C. The defence plea of unsoundness of mind therefore fails. The conviction of the accused under Section 302 I. P. C. is upheld. As regards the sentence, I find no extenuating circumstance in favour of the accused for passing on him a lesser sentence. I would therefore, accept the reference, confirm the sentence of death passed on the accused and dismiss the appeal.

Misra, J.

17. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //