PRATAPGIRI SHIVGIRI Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
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J.B.MEHTA, J. -
(1.) Now only two points have been urged by Mr. Shah on behalf of the accused:--(1) the plea of insanity based on section 84 of the Indian Penal Code and (2) the plea of grave and sudden provocation based on exception I to section 300 of the Indian Penal Code.
(2.) On the first point Mr. Shah has urged before us that even though section 105 of the Evidence Act raises a presumption against the accused and there is a burden on him to rebut the presumption of cases where he raises the plea of the said general or special exception the said burden must be deemed to have been discharged by merely raising a probability of insanity or by a bare explanation which was merely plausible. That is in such cases according to Mr. Shahs contention a reasonable doubt would be created whether the act was done with the requisite intention or knowledge which is one of essential ingredients of the offence of murder. Now the legal impact of this provision on the question of burden of proof has been considered by the Supreme Court in the case of K. M. Nanavati v. State of Maharashtra A. I. R. 1962 S. G 605 at page 616 paragraph 18. The relevant observations areas under:--
In India as it is in England there is a presumption of innocence in favour of the accused as a general rule and it is the duty of the prosecution to prove the guilt of the accused to put it in other words the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the general exception in the Indian Penal Code or any special exception or proviso contained in any other part of the Penal Code or in any law defining an offence sec 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions that is the Court shall regard the non-existence of such circumstances as proved till they are disproved. An illustration based on the facts of the present case may bring out the meaning of the said provision. The prosecution alleges that the accused intentionally shot the deceased but the accused pleads that though the shots emanated from his revolver and hit the deceased it was by accident that is the shots went off the revolver in the course of a struggle in the circumstances mentioned in sec. 80 of the Indian Penal Code and hit the deceased resulting in his death. The Court then shall presume the absence of circumstances bringing the case within the provisions of sec. 80 of the Indian Penal Code that is it shall presume that the shooting was not by accident and that the other circumstances bringing the case within the exception did not exist but this presumption may be rebutted by the accused by adducing evidence to support his plea of accident in the circumstances mentioned therein. The presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients of the offence with which the accused is charged that burden never shifts. The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under sec. 105 of the Evidence Act is more imaginary than real. Indeed there is no conflict at all. There may arise three different situations:- (1) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused:- (2) The special burden may not touch the ingredients of the offence but only the protection given on the assumption of the proof of the said ingredients:- (Sections 77 78 79 81 and 88 of the Indian Penal Code ). (3) It may relate to an exception some of the many circumstances required to attract the exception if proved affecting the proof of all or some of the ingredients of the offence:- In the first case the burden of proving the ingredients or some of the ingredients of the offence as the case may be lies on the accused. In the second case the burden of bringing the case under the exception lies on the accused. In the third case though the burden lies on the accused to bring his case within the exception. the facts proved may not discharge the said burden but may affect the proof of the ingredients of the offence. An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of sec. 300 of the Indian Penal Code the prosecution has to prove the ingredients of murder and one of the ingredients of that offence is that the accused intentionally shot the deceased the accused pleads that he shot at the deceased by accident without any intention or knowledge in doing of a lawful act in a lawful manner by lawful means with proper care and caution:- the accused against whom the presumption is drawn under sec. 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in sec. 80 of the Indian Penal Code may adduce evidence to rebut the presumption. That evidence may not be sufficient to prove all the ingredients of sec. 80 of the Indian Penal Code but may prove that the shooting was by accident of inadvertence i.e. it was done without any intention or requisite state of mind which is the essence of the offence within the meaning of section 300 Indian Penal Code of at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder. In that event though the accused failed to establish to bring his case within the terms of section 80 of the Indian Penal Code. the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. In this view it might be said that the general burden to prove the ingredients of the offence unless there is a specific statute to the contrary is always on the prosecution but the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence indeed the evidence though insufficient to establish the exception may be sufficient to negative one or more of the ingredients of the offence". The Supreme Court further observed at p. 618 that observations of Viscount Sankey L.C. in Woolmington v. Director of Public Prosecutions1935 A. C. 462 at page 481 were not in conflict with the opinion expressed by it. These observations were:--
"But while the prosecution must prove the guilt of the prisoner there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt he is not bound to satisfy the jury of his innocence.....Throughout the web of the English Criminal Law one golden thread is always to be seen it is the duty of the prosecution to prove the prisoners guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner as to whether the prisoner killed the deceased with a malicious intention the prosecution has not made out the case and the prisoner is entitled to an acquittal. Further proceeding it was observed -As in England so in India the prosecution must prove the guilt of the accused i.e. it must establish all the ingredients of the offence with which he is charged. As in England so also in India the general burden of proof is upon the prosecution and if on the basis of the evidence adduced by the prosecution or by the accused there is a reasonable doubt whether the accused committed the offence he is entitled to the benefit of doubt. In India if an accused pleads an exception within the meaning of sec. 80 of the Indian Penal Code there is a presumption against him and the burden to rebut that presumption lies on him. In England there is no provision similar to sec. 80 of the Indian Penal Code but Viscount Sankey L.C. makes it clear that such a burden lies upon the accused if his defence is one of insanity and in a case where there is a statutory exception to the general rule of burden of proof. Such an exception we find in section 105 of the Indian Evidence Act.
(3.) Therefore in cases covered by categories I and 2 mentioned by the Supreme Court in Nanavatis case where the burden of proof of some ingredients of the offence itself is on the accused or where the circumstances that attract the exception do not touch any of the ingredients of the offence because of a specific statutory provision and exception is created to the general rule of burden of proof. In such cases notwithstanding the general rule of burden being on the prosecution to prove the offence the burden of proving the absence of that particular ingredient or absence of the special circumstances so as to bring his case under the exception will be on the accused. It is only in the third category of cases where the proof of some of the many circumstances required to attract the exception would have a necessary impact on the proof of the ingredient of the offence that a further question has to be considered whether the evidence though insufficient to establish the exception was sufficient to negative one or more ingredients of the offence. Section 80 was referred to as an apposite illustration for this purpose. Under section 84 however the unsoundness of mind has to be such as would make the offender incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to law. In such a case the effect of section 105 of the evidence Act is to throw the burden of proof on the accused that he had no requisite knowledge and the Court shall presume that he had the requisite knowledge. Thus the burden of proof of absence of one of the essential ingredients of the offence is cast on the accused and the case is covered under the 1st category and not under the 3rd category of cases envisaged by the Supreme Court. The provisions of section 84 are in substance the same as those laid down by the House of Lords in McNaughtons case the famous pronouncement of the law on the question of insanity in cases of murder. Even in England where there is no provision like section 105 of the Evidence Act as observed by Viscount Sankey L. C. in Woolmingtons ease (1935 A.C. 462 at page 475). In McNaughtons case the onus is definitely and exceptionally placed upon the accused to establish such a defence. This position was specially noticed in the concluding words in the above quotation of Nanavatis case which are put in italics. It is clear that the burden of proof is on the accused if the defence is one of insanity.;
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