KANBI KURJI DUDA Vs. STATE OF GUJARAT
LAWS(GJH)-1960-6-7
HIGH COURT OF GUJARAT
Decided on June 28,1960

KANBI KURJI DUDA Appellant
VERSUS
STATE Respondents


Referred Judgements :-

KALICHARAN V. EMPEROR [REFERRED]
ASHIRUDDIN AHMED V. THE KING [REFERRED]
KING EMPEROR V. GEDKA GOALA [REFERRED]



Cited Judgements :-

PRATAPGIRI SHIVGIRI VS. STATE OF GUJARAT [LAWS(GJH)-1963-11-6] [REFERRED]
SHAMA TUDU VS. STATE [LAWS(ORI)-1986-4-35] [REFERRED TO]


JUDGEMENT

J.M.SHELAT - (1.)The question that was raised in the trial Court and which has 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 mind that be 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 in the evidence of these witnesses. Apart from what we have already narrated Keshav Ramji has stated that the accused was not on any hostile or incordial terms with the deceased Jamna and Natha. Police Patel Naran has deposed that the accused in the past used to murmur 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 Keshav has deposed that during the year prior to the date of the incident the accused had become like a mad man and the village 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 Suryavansi and Arjun and regarded his wife Jamna as Bhangdi presumably meaning thereby 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 Jamna and his son Natha believing that Natha was Karna and he being Arjun there would be nothing wrong in causing the death of his inveterate enemy Karna. Likewise he would not consider killing his wife Jamna as anything wrong as he was suffering from a delusion 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 Pleader however submitted that these facts assuming that the accused was suffering from these hallucinations were insufficient to constitute that unsoundness 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 law and that therefore the accused would not be entitled to the benefit of the general Exception laid down in sec. 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 unsoundness 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 accused having cultivated these lands According to the learned Assistant Government Pleader these two facts showed that the accused was certainly no suffering from any defect or infirmity of mind which would entitle him to the benefit of sec. 84. Now it is clear that under sec. 84 it is not every person mentally deceased who ipso facto is exempted from criminal responsibility. Such exemption is allowed 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 to law. Sec. 84 lays down the legal test of responsibility in cases of alleged unsoundness of 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 sec. 84 are in substance the same as those laid down by the House of Lords in Mc Naughtons Case. Sec. 84 thus provides that a man who is by reason of unsoundness of mind prevented from controlling his own conduct and 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 Dot be suffering from delusions or hallucinations on 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 of unsoundness of mind the accused must affirmatively prove that at the time of committing the act he was doing under such a defect of reason 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 realise that what he was doing was either wrong or contrary to law. If he did know it he would be responsible and would not have the benefit of sec. 84. The mere fact that on former occasions he had been occasionally subject to insane delusions or had suffered from derangement of mind and subsequently he had behaved like a mentally deficient person is per se insufficient to 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 time when the act was committed. In other words so far as sec. 84 is concerned the Court is only concerned with the state of mind of the accused at the time of the act As stated in Russell on Crime (10th Edition) p. 58 the function of the Court and jury in cases where insane but whether the prisoner is or is not in law criminally responsible for his deed. It is from this aspect that we have to decide whether on the facts and the circumstances of this case the accused is entitled to the benefit under sec. 84 of the Penal Code.
(3.)Mr. Thakkar laid considerable stress on the subsequent conduct of the accused and there from sought to argue that 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 unable to realise that what he had done was either wrong or contrary to law. There was as pointed out by him a complete lack of motive on the part of the accused to commit such an extraordinary brutal act of killing his own wife and son with whom he had 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 any one the fact that he had caused the death of his wife and his son. On his way home he had stopped near the house of the Sarpanch and in the presence of the other villagers he had openly declared 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 to run away from the village or to conceal the incriminating items of evidence namely the blood-stained crowbar and the blood-stained Chorna nor had he made any effort to abscond from the village so as to escape the penalties of the law for the acts that he 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 murmur in the presence of others that he was Suryavansi 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 hallucination in consequence of which he was not in a position to realise that what he was doing was either wrong or contrary to law.
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