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Kanbi Kurji Duba Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 63 of 1960
Judge
Reported inAIR1960Guj1; 1960CriLJ1200
ActsIndian Penal Code (IPC), 1860 - Sections 84
AppellantKanbi Kurji Duba
RespondentState
Appellant Advocate M.P. Thakkar, Adv.
Respondent Advocate H.K. Thakore, Asst. Government Pleader
Cases ReferredIn Ashiruddin Ahmed v. The King
Excerpt:
.....killed his son and daughter - behaviour of accused prior to commission of offence not normal - accused suffering from infirmity and delusions - accused not in position to realize that act committed by him was contrary to law - held, accused entitled to benefit under section 84. - - jagjivan that about a year prior to the date of the incident, the accused had run away from his house 'getting half mad' and he had been brought back by his relations to pipalia, similarly, ravji kasha has deposed that during the year prior to the date of the incident, the accessed 'had become like a mad man',and the villages children used to chase him shouting that the mad man has come. 84. the mere fact that on former occasions head been occasionally subject tunisian delusions or had suffered from..........by the high courts of nagpur, patna and bombay. there is evidence of symptoms of the accused's mind suffering previously from infirmity and delusions. there is the evidence that in the proceeding year the accused had left his home his relations. there is also the evidence that his behaviour was such that the children of the village used to chases him calling him 'half mad'; and as the police paten has deposed, the accused used to regard himself as suryavanshi and arjun. thus, its clear that he was suffering from a delusion or a hallucination that he was a pure blooded suryavanashi and arjun of the mahabharat. coupled with this evidence as to this delusion, there is the evidence that to provoke the accused to committee brutal act of killing his own wife and his eldest son, with whom.....
Judgment:

(1) At the material time, the accused, house wife, the accused Jamuna and his two sons, the elder being Anther, were living in the village Bhandarda in the District of Sorath. They had come from Papilla to this villages only two or three months prior to the dates of the incident. The accessed had purchased a few months prior to the date of the incident certain fee lands which were situates about half a lie away from the village Bhandarada. On the 11th of May 1959, that being the Ganesh Chaturthi, the accused, the deceasesds Jamuna and their two sons went to a the place called 'Dhukhan' apparently to bring some earth from there. They had gone in apart belonging to the accused and there was a crow bar with them when they went to the place. At about 9 a.m., the accused returned to the villages accompanied, how-ever, only by his younger son about three years of age. While he was passing by the house of the AR Panache of the village, witness Bhaishanker Pranjivan, the accessed called out to the witness as 'Bhishma Pitamaha' and told him that he had killed 'Bhangadi' and 'Karna' meaning there by his wife the deceased Jamuna and his elder son Anther. He repeated this thrice to the Sar Panch. Besides the Sar Panch, there were present one Kasha, Harin Bhura and Ravji. Since the Sar Panch, Besides the Sar Panch, there were present one Keshaw, Hari Bhura and Ravji. Since the Sar Panch could not follow what the accused meant to convey to him, he sent ravage to the residence of the police patel to inform him of what the accused was saying. The accused proceeded in his cart to his house. After unyoking the bullocks form the cart he came back near the house of the Sar Panch and sat down in the verandah of a house of the Sar opposites to the house of the Sar Panch. Soon thereafter the polices pates, witness Narayan came there, who, after ascertaining the facets, made his first information reported sent it to the Sub-Inspector, An a, which was the nearest police station P.S.I. Jagjivan Girdhar started for Bhandarda on receipt of the first in form action report and reached that place at about l7-30 p.m. The accessed was in the meantime kept bound by the police patel at the Chora. He made the necessary investigation in the course of which he took charge of the crowbar which was on the person of the accused. On these two article having been sent the Chemical Analyser and the Serologist, both of them were found to have been stained with human blood. The accused there after was charge sheeted under S. 302, Penal Code, for giving caused the double murder of his wife, the deceased Jamuna, and his son, the deceased Natha.

(2) The defence of the accused was that he had become mad at the time of the incident, that he was not in his sense and therefore he had no knowledge of what he had done.

Shelat, J.

(1) The question that was raised in the trial Court and which had been raised before us by Mr. Thakkar is whether the accused was suffering at the time of the incident in question from such unsoundness of in that he did not know that the act which he was doing was wrong or that it was contrary to law. In order to establish this defense, Mr. Thakkar has relied upon certain portions the evidence of these witnesses apart from what we have already narrated. Kasha Ramji has stated that the accused was not on any hostile or uncordial teasers with the desceased Jamuna and Natha. Police Pateal Narayan has deposed that the accused in the past used to murder that he was Suryavansi Arjun and that the village people of Bhandarda used to consider and treat the accused as a person who was half mad. There is also the evidence of P.S.I. Jagjivan that about a year prior to the date of the incident, the accused had run away from his house 'getting half mad' and he had been brought back by his relations to Pipalia, Similarly, Ravji Kasha has deposed that during the year prior to the date of the incident, the accessed 'had become like a mad man', and the villages children used to chase him shouting that the mad man has come. Mr. Thakkar has contended that this part of the evidence suggested that the accused was suffering from certain hallucinations or delusions, under which he considered himself to be a Suryavanshi and Arjun and regarded his wife Jamuna as Bhangdi presume ably meaning there by a woman who had given birth to an illegitimate son and his eldest son Natha as Karna, the inveterate enemy of Arjun. Mr. Thakkar has submitted that suffering as he was from these delusions and hallucinations, the accused killed his wife Jamuna and his son Natha believing that Natha was Karna and he being Arjun, there would be nothing wrong inclausing the death of his inveterate enemy Karna likewise, he wouldn't consider killing his wife Jamuna as anything wrong as he was suffering from adellusions and hallucination that she was a woman who had given birth to an illegitimate son and was therefore contemptible and regarded her and in fact called her Bhangdi.

(2) The learned Assistant Government Pleder, however, submitted that these facts, assuming that the accused was suffering from these hallucinations, were in sufficient to constitute that an soundness of mind by reason of which the accused could be said to be incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to lay, and that therefore the accused would not be entitled to the benefit of the general Exception laid down in S. 84 of the Penal Code. He drew our attention to two other facts which, according to him, indicated that the accused could not be suffering from any hallucinations or any an soundness of mind. These facts were the fact of the accused having purchased lands in the previous year as deposed to by witness Amrut Raghunath and the fact of the accessed having cultivated these lands. Pleader, these two facts showed that the accused was certainly not suffering from any defect or infirmity off mind, which would entitle him to the benefit of S. 84

(3) Now, it is clear that under S. 84 it is not every person mentally diseased who, in son facto, is exempted from criminal responsibility. Such exemption isolated only where the insane person is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary tallow. Section 84 lays down the legal test of responsibility in cases of alleged unsoundness off mind, and it is by that test, as distinguished from the medical test, that the criminality of an act is to be determined. The provisions of S.84 are in substance theme as toes laid down by the House of Lords in Daniel Mc Naughton's case, (1943) 10 Cl and Fin 200. Section 84 thus provides that a man who is, by reason his own conduct and deprived of the power of his own conducted deprived of the power of passing a rational judgment on the moral character of the act he meant to do cannot be legally responsible for the act. Also if a man suffers under a partial delusion only but insane in other respects, he must be dealt with as if the facts with respect to which the delusion existed were real. The fact therefore that the accused had in the preceding year purchased lands and had cultivated those lands would not by itself mean that he would not be suffering from delusions or hall urination son certain matters or aspects which would render him incapable of either knowing the nature of the act or that the act which he was doing was wrong or contrary to law. There can, however, be no doubt that to establish a defense on the ground on unsoundness of mind, the accused must affirmatively prove that at the time of committing the act the was laboring under such a feet overseen as not to know either the nature and the quality of the act that he was doing or if he did know it, he did not realizes that what he did know it, heeded not realize that what he was doing was either wrong or contrary to law. If he did know it, he would be responsible and would not havens the benefit of S. 84. The mere fact that on former occasions head been occasionally subject Tunisian delusions or had suffered from derangement of mind and subsequently had behaved like mentally deficient person is per so in sufficient to a bring his case within the exemption. The antecedent and subsequent conduct of the man is relevant only to show what the state of his mind was at the tie when the act was at the time when the act was committed. In other words, corned with the states of mind of the accused at the time of the act. As stated in Russel on Crime (10th Edition), p. 58, the function of the Court and juryin cases where insanity's pleaded in defense, is not to decide whether the prisoner is insane, but whether the prisoner is or is not in law criminally responsible for his deed. It is from this aspect that we haven to decide whether on the facts and the circumstances of this case the accused is entitled to the benefit under S. 84 of the Penal Code.

(4) Mr. Thakkar laid considerable stress on the subsequent conduct of the accused and therefrom sought to argue that conduct sufficiently indicated that the accused was and must be suffering from unsoundness of mind so as to make him incapable of distinguishing between right and wrong and of being to realise that what he had done was either wrong or contrary law. There was, as pointed out by him, a complete lack of motive on the part of the accessed to commit such an extraordinary brutal act of killing his own wife and son, with whom head been, as the evidence discloses, not on any hostile or unfriendly relations. In the second place, the evidence disclosed that there was no attempt on the part of the accused to conceal from anyone the fact that he had caused the death of his wife and his son Natha. Even after disclosing this fact, there was no attempt on his part torn away from the villages or to conceal the incriminating items of evidence, namely the bloodstained crowbar and the blood-stained Chorna nor had he made any effort to abscond from the villages so as to escape the penalties of the law for the acts that the had committed. Apart from this fact, there was the evidence as to the eccentric and unusual behavior on his part testified by the police patel of the village, which showed that even prior to the date of the incident, the accused used to murmerin the presence of others that he was Suryavanshi and Arjun. The cumulative effect of all these circumstances, contended Mr. Thakkar, was that the accused could not have been aware either of the wrongness of his act or its criminality. This conclusion is fortified by the fact that when the accused disclosed that he had killed his wife and his son he had indicated neither the repentance nor remorse for the acts which he had committed. These facts, therefore, argued Mr. Thakkar, constituted a set of circumstances, which clearly indicated that the accused was suffering from that infirmity of mind by reason of his being subject to the aforesaid hallucinations, in consequence of which he was not in a position to realise that what he was doing was either wrong or contrary to law. The learned Assistant Government Pleadeer on the other hand, relied upon Kalicharan v. Emperor AIR 1948 Nag 20(2) where it has been observed:

'A person is presumed to be responsible for his action and the natural consequences thereof unless he affirmatively proves that he is entitled to exemption from criminal liability. In order to bring the case within the exemption under S. 84, Penal Code, the accused must prove that at the time of committing the offense was laboring under s defect of reason which had been caused by unsoundness of mind with the result that he was rendered incapable of knowing the nature of the act and that he was rendered incapable of knowing the nature of the act and that he was doing what was either wrong or contrary to law'.

'A crime is not executed by its own atrocity. From the fact that the accused killed four persons in succession without any motive no inference can be drawn that his reason must have been affected by insanity temporarily. One must lookout side the act itself for the evidence as to how much the accused knew about it'.

(5) 28th June, 1960, - Similarly, in Queen Empress v. Lakshman Dagdu, ILR 10 Bom 512, the facts were that the accused had killed his two children in respect of which he was charged with the offence of murder. The evidence of his wife was that he was fond of these two children. The accused had fever for five days and had not been able to go to work. He had become vesryiritable, sensitive to note, and confused in his thoughts but he had not become delirious. On the day in question his wife had left him at 2 p.m. leaving the two children in his charge as usual, one aged three and the other aged one. After the were left him, the two children began to cry, which it was alleged, annoyed him. He killed both the children. The evidence, how obverse, disclosed that he had not shown any symptoms of insanity previously. After the killing of the two children, the accuses had made no attempt to escape. He also expressed no sorrows remorse, and surrendered himself to the police making a full confection before a Magistrate. It was held that the accosted was conscious of the nature of the natures of his act and must therefore be presumed to have been conscious of his criminality. He was therefore found guilty of murder.

(6) In comparing the facts of this case with the facts before us, we may observe that the accused in Lashman Dagdu's case, ILR 10 Bom 512, had himself assigned a motive for his crime, thought was found insufficient and even unreasonable. It was, therefore, held that the fact that the accused had fevers as a result of which he had become very irritable and sensitive to sound and his thoughts were confused was not sufficient to hold that he was not conscious to the nature of his act. It was held that as the accused was conscious of the nature of his act, he must be presumed to have been conscious of its criminality. In both the Nagpur and Bombay cases, the defence mainly was of a sudden irresistible homicidal impulse on the part of the accused which caused a temporary intellectual observation at the time of the preparation of the crime. That argument was negatived on the ground that a Court of Law would look for some clear and distinct proof of mental delusion or intellectual observation existing previously or at time of the preparation of the crime. In Emperor v. Gedka Goala, ILR 16 Pat 333: (AIR 1937 Pat 363), a decision relied upon by the learned Assistant Government Pleader, it was held that a person is not entitled to exemption from criminal liability cases in which it is only shown that he is subject to insane impulse while he cognitive faculties remain. So far as can be judged from his actors and words, unimpaired. It was also held that where the Sessions Judge drew an inference of 'derangement of brain' from the very nature of the act done by the accused such a test was inadequate and one must look outside the act itself for the evidence as to how the accused knew about it. In the case of Gedka Goala, ILR 16 Pat 333: (AIR 1937 Pat 363) absence of any motive, absence of secrecy, want of pre arrangement and want of accomplices were not found sufficient to constitute a reference under S. 84. It was held that these circumstances by themselves were insufficient to support the inference that the accused suffered from unsoundness of mind of the kind referred to in S.84.

(7) It should be remember that in all these three cases what was held was that the facts found therein were not sufficient for a conclusion that the accused was suffering from some delusion or intellectual aberration, which would deprive him of the faculty of appreciating the nature of this act, there being no evidence as to the symptoms of any insanity or infirmity of mind previously orate the time of the crime in question. It is thus clear that it is only that unsoundness of mind which materially impairs the cognitive faculty of the mind that can form a ground for exemption from criminal liability. The natures and the extent of the unsoundness of mind required must reach that stage as would make the offender incapable of knowing the nature of his act or that he is doing what is either wrong or contrary to law. Two illustrations commonly cited to distinguish the two different conditions of mind may here be set out. A person strikes another and in consequence of an insane delusion believes that he is striking a bird. In such a case he does not know the nature of his act. In the other case, he may kill child under an insane delusion that he is saving him from sin and sending him to heaven. Here he is incapable of knowing, by reason of his inanity, that he is doing what is morally wrong, although he is aware of the nature of the act.

(8) In Ashiruddin Ahmed v. The King AIR 1949 Cal 182, the accused in his dream was commanded by someone in paradises to sacrifice his own son of five years. The next morning the accused took his son to a mosque and killed him by thrusting a knife in his throat. He then went straight to his uncle but finding a chowkidar near by took the uncle to a tank at some distance and slowly told him the story. It was held that of the three elements necessary to reestablished under S. 84, any one of which must established by an accused to obtain the benefit of the provisions, the first, the nature of the act, was clearly known to the accused, the accused also knew that the act was contrary law; but he certainly did not know that the act was wrong. The accused was clearly of unsound mind and acting under the delusion of his dream, he had made the sacrifice of his dream, he had made the scarf of his son believing it to be right. He was therefore entitled to the benefit of S.84.

(9) The facts in the case before us are different from those to be found in the aforesaid mentioned cases decided by the High Courts of Nagpur, Patna and Bombay. There is evidence of symptoms of the accused's mind suffering previously from infirmity and delusions. There is the evidence that in the proceeding year the accused had left his home his relations. There is also the evidence that his behaviour was such that the children of the village used to chases him calling him 'half mad'; and as the police paten has deposed, the accused used to regard himself as Suryavanshi and Arjun. Thus, its clear that he was suffering from a delusion or a hallucination that he was a pure blooded Suryavanashi and Arjun of the Mahabharat. Coupled with this evidence as to this delusion, there is the evidence that to provoke the accused to committee brutal act of killing his own wife and his eldest son, with whom his relations were by no means unfriendly or uncordial. Immediately after killing them, he openly told the Sar Panch, addressing theater as 'Bhisma Pitamaha', again a famous and significant name in Mahabharat that he had killed Bhangdi, meaning his wife, and Karna, meaning his son. Since the accused thought himself to be Arjun, he could not have regarded the deceased Jamuna the mother of his eldest son Natha, as his wife. He called her and presumably regarded her as Bhangdi, a term of absolute contempt, presumably considering her as a person who had given birth to a son before marriages. Likewise he thought himself to be Arjun and regarded Karna in the form of his eldest son Natha as his inveterate enemy, whom he must kiln self-defense not only of himself but of his imaginary family. It would seem, therefore, came back to the violates just after committing the brutalized and declared before the Sar Panch his terrible acts and if he was conscious or capable of he could have well concealed it. There was however no attempt on his part to conceal what he had done. Instead of concealing the deed that he had committed, he declared openly before the Sar Panch and the other villagers that he had killed the persons whom he then believed as Bhangdi and Karna. He did not even conceal the two incriminating pieces of evidence against him, namely the block stained crowbar with which he obviously committed the crimes and the blood-stained Chorna on his person. He obviously felt no remorse nor repentance. He must have believed that what he had done was neither wrong nor contrary to law. There can thus be no question that the accused at this time was suffering and was subject to delusions which incapacitated him from being conscious that what he had done was wrong, though he was aware of the nature of the acts committed by him. These facts thus are not on the same footing as the facts in the cases before the High Courts of Nagpur, Bombay and Patna, where the defence was based merely on a sudden homicidal impulse said to have been suffered by the accused and the insanity which was sought to be traced from the criminal acts committed by the before us evidence to suggest that the accused was suffering from symptoms of unsoundness of mind as a result of the delusions and hallucinations suffered by him. In these circumstances, we are of the view that the evidence on record clearly indicates one of the three alternatives provided for in S. 84 of the Penal Code, namely, that though conscious of the nature of the acts committed by him, the accused was not in a position to appreciate and realise that the acts committed y him were either wrong or contrary to law. In these circumstances, the accused is entitled to the benefit of the provisions of S.84.

(10) The order conviction and sentence passed therefore by the learned Sessions Judge, Sorath, on the accused must be set aside and the appeal cannot be discharged at this stage from the custody he is in.

(11) For his own security and that of others, we propose that the accused should be continued in jail until Government gets him examined by the medical authorities the State and till he is found by them sufficiently fit to be released from jail custody. Under S. 471, Criminal Procedure Code, the actin that we have proposed and the order which we are making accordingly should be reported to Government

(12) Appeal allowed.


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