MANU/OR/0167/1992

Equivalent Citation: 75(1993)C LT439, 1993C riLJ1201, 1993(I)OLR97

IN THE HIGH COURT OF ORISSA

Jail Criminal Appeal No. 36 of 1889
Decided On: 02.11.1992
Appellants: Ajaya Mahakud
Vs.
Respondent: State
Hon'ble Judges/Coram:
Dr. Arijit Pasayat and D.M. Patnaik, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: A.S. Naidu, Adv.
For Respondents/Defendant: G.K. Mohanty, Addl. Standing Counsel
Case Note:
Criminal - Conviction - Section 302 and Section 84 of Indian Penal Code,
1860 - Sessions Judge convicted Appellant for an offence of murder -
Hence, this Appeal - Whether, unsoundness of mind of accused could be
protected under Section 84 of IPC - Held, accused committed act, by reason
of unsoundness of mind, was incapable of knowing nature of act and it was
wrong and contrary to law - However, there was no material to show that
there was any deliberateness or preparation and act was accompanied by
manifestations of unnatural and fiendish brutality was committed in open
place and there was no evidence of a desire to concealment - Moreover,
accused did not show consciousness of his guilt by acts like running away
from scene, or trying to avoid detection - Further, accused did not offer any
false excuse or made any false statements, when arrested - Thus, mere fact
that a male violent act was committed, on a sudden impulse with no
discoverable motive would not in general, afford sufficient basis for
accepting a plea of insanity - Hence, protections under Section 84 of IPC
were extended to accused - Appeal allowed.Ratio Decidendi"Unsoundness
of mind and insanity of accused shall be taken into consideration while
awarding conviction."
JUDGMENT
Arijit Pasayat, J.
1. In this appeal from District Jail, Sundargarh, Ajaya Mahakud (hereinafter referred
to as the "accused') calls in question legality of his conviction Under Section 302 of
the Indian Penal Code, 1860 (in short, 'IPC') and sentence of imprisonment for life as
awarded by the learned Sessions Judge, Sundargarh.
2. Accusation of the gruesome and cruel act which led to the trial of the accused is as
follows :
On the night of 29-10-1987, the accused pushed a young child of about 4
years into fire which resulted in his death. The deceased was the son of one
Biswanath Behera who had developed some intimacy with the accused,

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 during his stay in village Kasla for about a month, where he had gone for
preparing tiles. After Biswanath returned from Kasla, the accused came and
stayed in his house, as he expressed that he was not feeling well. On 28-10-
1987 his nephew Suren, and one NilaKantha Naik came from village Kasla in
search of the accused. They all took food in the night of occurrence. As
sufficient space was not there, Suren and Nilakantha stayed in the house of
one Krushna Behera who had his house near the house of Biswanath. Since it
was a cold night, fire was burning in the fireplace. At about 11 p.m. the
accused started murmuring and told Biswanath that he was not feeling well
and his nephew and the other man should be called. Biswanath went to
Krushna's house to call them. Within a few minutes thereafter, when they all
came, they saw the accused placing the deceased child on the burning fire by
holding his legs. When they wanted to rescue the child from the fire, the
accused wanted to assault Biswanath by means of a lathi. Several persons
assembled there and the accused was taken to control and brought from
inside the house and was detained. In the process of his struggling to
escape, he sustained injuries on his head. The child was immediately shifted
to Joda Hospital for treatment and the matter was reported at Koida Police
Station by Nilakantha Behera, the uncle of Biswanath. While under treatment
at Joda Hospital, the child died on 31-10-1987. Investigation was undertaken
and the accused faced trial. In order to establish its case, 11 witnesses were
examined by the prosecution.
3 . The accused took a plea of innocence. He, however, pleaded that he was not in
senses and cannot say as to what happened. He admitted that he stayed in the house
of Biswanath on the night of occurrence. During trial the plea of unsoundness of
mind was pressed into service. In other words, it was pleaded that the benefit of
Section 84 IPC, was to be extended.
4 . The learned trial Judge did not accept the plea and placing reliance on the
evidence of the PWs 1, 3 and 5. who claimed to have witnessed part of the
occurrence, found the accused guilty and convicted and sentenced him as aforesaid.
5 . In support of the appeal, the learned counsel for the accused has urged that the
approach of the learned Sessions Judge was not correct. While coming to the
conclusion that there was no material in support of unsoundness of mind of the
accused, he should have referred to the evidence which reflected that the behaviour
of the accused was abnormal, and that was indicative of unsoundness of mind. The
learned counsel for State has, however, submitted that the learned Sessions Judge
has rightly held that protection Under Section 84, IPC was not available.
6 . Section 84 lays down the legal test of responsibility in cases of alleged
unsoundness of mind. There, is no definition of "unsoundness of mind" in the Indian
Penal Code. Courts have, however, mainly treated this expression as equivalent to
insanity. But the term "insanity" itself has no precise definition. It is a term used to
describe varying degrees of mental disorder. So, every person, who is mentally
diseased, is not ipso facto exempted from criminal responsibility. A distinction is to
be made between legal insanity and medical insanity. A Court is concerned with legal
insanity, and not with medical insanity. The burden of proof rests on an accused to
prove his insanity, which arises by virtue of Section 105 of the Indian Evidence Act,
1972 and is not so onerous as that upon the prosecution to prove that the accused
committed the act with which he is charged. The burden on the accused is no higher
than that resting upon a plaintiff or a defendant in a civil proceeding. (See Dahyabhai
v. State of Gujarat MANU/SC/0068/1964). In dealing with cases involving a defence
of insanity, distinction must be made between cases, in which insanity is more or

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less proved and the question is only as to the degree of irresponsibility, and cases, in
which insanity is sought to be proved in respect of a person, who for all intents and
purposes, appears sane. In all cases, where previous insanity is proved or admitted,
certain considerations have to be borne in mind. Mayne summarises them as follows
:
"Whether there was deliberation and preparation for the act; whether it was
done in a manner which showed a desire to concealment ; whether after the
crime, the offender showed consciousness of guilt and made efforts to avoid
detections ; whether, after his arrest, he offered false excuses and made
false statements. All facts of this sort are material as bearing on the test,
which Bramwall, J. submitted to a jury in such a case : 'Would the prisoner
have committed the act if there had been a policeman at his elbow ? It is to
be remembered that these tests are good for cases in which previous insanity
is more or lass established. These tests are not always reliable where there
is, what Mayne calls, inferential insanity'."
7 . Under Section 84, a person is exonerated from liability for doing an act on the
ground of unsoundness of mind if he, at the time of doing the act, is either incapable
of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or
contrary to law. The accused is protected not only when, on account of insanity, he
was incapable of knowing the nature of the act, but also when he did not know either
that the act was wrong or that it was contrary to law, although he might know the
nature of the act itself. He is, however, not protected if he knew that what he was
doing was wrong, even if he did not know that it was contrary to law, and also if he
knew that what he was doing was contrary to law even though he did not know that
it was wrong. The onus of proving unsoundness of mind is on the accused. But where
during the investigation previous history of insanity is revealed, it is the duty of an
honest investigator to subject the accused to a medical examination and place that
evidence before the Court and if this is not dons, it creates a serious infirmity in the
prosecution case and the benefit of doubt has to be given to the accused. The onus,
however has to be discharged by producing evidence as to the conduct of the
accused shortly prior to the offence and his Conduct at the time or immediately
afterwards, also by evidence of his mental condition and other relevant factors. Every
parson is presumed to know the natural consequences of his act. Similarly every
person is also presumed to know the law. The prosecution has not to establish these
facts.
8. There are four kinds of persons who may be said to be non compos mentis (not of
sound mind), i.e., (1) an idiot; (2) one made non compos by illness (3) a lunatic or
a mad man and (4.) one who is drunk. An idiot is one who is of non-sane memory
from his birth, by a perpetual infirmity, without lucid intervals; and those are said to
be idiots who cannot count twenty, or tell the days of the week, or who do not know
their fathers or mothers, or the like,(See Archbold's Criminal Pleadings, Evidence and
Practice, 35th Edn. pp. 31-32; Russell on Crimes and Misdemeanors, 12th Edn. Vol. .,
p. 105; 1 Hala's Pleas of the Grown 34). A person made non compos men-Us by
illness is excused in criminal cases from such acts as are -committed while under the
influence of his disorder, (See 1 Hale PC 30). A lunatic is one who is afflicted by
mental disorder only at certain periods and vicissitudes, having intervals of reason,
(See Russell, 12 Edn. Vol. 1, p. 103; Hale PC 31). Madness is permanent. Lunacy and
madness are spoken of as acquired insanity, and idiocy as natural insanity.
9. Section 84 embodies the fundamental maxim of criminal law, i.e., actus non facit
reum nisi mens sit rea" (an act does not constitute guilt unless done with a guilty
intention). In order to constitute an offence, the intent and act must concur; but in

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the case of insane persons, no culpability is fastened on them as they have no free
will (furiosi nulla voluntas est).
10. The section itself provides that the benefit is available only after it is proved that
at the time of committing the act, the 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 not know it, that he did know it, that he did not know he was
doing what was wrong. The crucial point of time for deciding whether the benefit of
this section should be given or not is the material time when the offence takes place.
If at that moment a man is found to be labouring under such a defect of reason as
not to know the nature of the act he was doing or that, even if he knew it, he did not
know it was either wrong or contrary to law then' this section must be applied. In
coming to that conclusion, the relevant circumstances are to be taken into
consideration, it would be dangerous to admit the: defence of insanity upon
arguments derived merely from the character of the crime. It is only unsoundness of
mind which naturally impairs the cognitive faculties of the mind that can form
aground of: exemption from criminal responsibility. Stephen in 'History of the
Criminal Law of England, Vo. II, page 166' has observed that if a persons cut off the
head of a sleeping man because 'it would be great fun to see him looking for it when
he woke up, would obviously be a case where the perpetrator of the act would be
incapable of knowing the physical effects of his act. The law recognizes nothing but
incapacity to realise the nature of the act and presumes that where a man's mind or
his faculties of ratiocination are sufficiently dean to apprehend what he is doing, he
must always be presumed to intend the consequence of the action he takes. Mere
absence of motive for a crime, howsoever atrocious in may be, cannot in the absence
of plea and proof of legal insanity, bring the case within this section The Supreme
Court in Sherall walli Mohammed v. State of Maharashtra MANU/SC/0238/1972 held
that the mere fact that no motive has been proved why the accused murdered his
wife and child or the fact that he made no attempt to run away when the door was
broken open would not indicate that he was insane or that he did not have necessary
mens sea for the offence. Mere abnormality of mind or partial delusion, irresistible
impulse or compulsive behaviour of a psychopath affords no protection Under Section
84 as the law contained in that section is still squarely based on the out dated
Naughton rules of 19th Century England. The provisions of Section 84 are in
substance the same as that laid down in the answers of the Judges to the questions
put to them by the House of Lords, in M Naughton's case. (1843) 4 ST 847. In
Sidheswari Bora v. The State of Assam 1981 CriL J 1005 a Bench of Gauhati High
Court where the accused killed her ailing child of three and there was also some
evidence elicited in cross-examination to show that the accused had suffered from
some mental derangement two years prior to the incident, it was held that the mere
fact that the murder was committed on a sudden impulse or as a mercy killing was no
ground to give her the benefit of Section 84, IPC, even though both euthanasia
(mercy killing) and irresistible impulse would entitle the accused in England to get
the benefit of diminished responsibility and her crime would be treated as man-
slaughter (i.e., culpable homicide not amounting to murder). In a latter case, the
same High Court felt that where the accused has made out a prima facie case of
irresistible impulse the plea has to be taken into consideration in deciding the
question of giving benefit of Section 84. (See State of Assam v. Inush Ali
MANU/GH/0067/1981). However, the position has undergone a sea-change in
England after enactment of Homicide Act. 1957. We hope that legislative changes
would be brought in with due regard to the far-reaching advancements in the field of
psychology of criminal behaviour. Behaviour, antecedent, attendant and subsequent
to the event, may be relevant in finding the mental condition of the accused at the
time of the event, but not that remote in time. It is difficult to prove the precise state
of the offender's mind at the time of the commission of the offence, but some

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indication thereof is often furnished by the conduct of the offender while committing
it or immediately after the commission of the offence. A lucid interval of an insane
person is not merely a cessation of the violent symptoms of the disorder, but a
restoration of the faculties of the mind sufficiently to enable the person soundly to
judge the act ; but the expression does not necessarily mean complete or prefect
restoration of the mental faculties to their original condition. So, if there is such a
restoration, the person concerned can do the act with such reason, memory and
judgment as to make it a legal act ; but merely a cessation of the violent symptoms
of the disorder is not sufficient.
The standard to be applied is whether according to the ordinary standard, adopted by
reasonable men, the act was right or wrong. The mere fact that an accused is
conceited, odd irascible and his brain is not quite all right, or that the physical and
mental ailments from which he suffered had rendered his intellect weak and had
affected his emotions and will, or that he had committed certain unusual acts, in the
past or that he was liable to recurring fits of insanity at short intervals, or that he
was subject to getting epileptic fits but there was nothing abnormal in his behaviour,
or that his behaviour was queer, cannot be sufficient to attract the application of this
section.
11. We do not want to proliferate our judgment with various decisions rendered by
different Courts on these aspects. Every minor mental aberration is riot insanity. To
be entitled to the protection of this section, the person must be non compos mentis
at the time of commission of the offence. The pattern of the crime, the circumstances
under which it was committed, the manner and method of its execution and the
behaviour of the offender before or after the commission of the crime furnish some of
the important clues to ascertain whether the accused had no cognitive faculty to
know the nature of the act or that what he was doing was either wrong or contrary to
law. Merely establishing that sometime prior to the occurrence, the accused was
behaving, in strange manner or had been taciturn, moody or saturnine, will' not be
sufficient to bring his case Under Section 84. The question as to whether the accused
was insane at the time of occurrence so as to attract the application of Section 84 is a
question of fact to be decided on merits in each case on the facts of that case.
1 2 . Coming to the facts of the case at hand, we find there is not ready much
antecedent material about the accused behavioural pattern. But, from the evidence of
the prosecution witnesses, more particularly PWs 1, 3 and 5, it is evident that the
accused had (a) bitten the left cheek of the child in a fiendish manner; (b) kept the
child pressed inside the burning fire with his foot on his neck ; (c) tried to assault
the father of the child with a lathi when he tried to rescue the child ; (d) shouted that
he had killed the child and would kill others ; (e) continued shouting that he would
kill when he was being taken to the police station ; (f) been behaving like a mad man
when he sent PW 1 to call PW 2 and Suren ; (g) no motive to commit the crime.
There is no material to show that there was any deliberateness or preparation. The
act was accompanied by manifestations of unnatural and fiendish brutality, was
committed in an open place, and there was no evidence of a desire to concealment.
The accused did not show consciousness of his guilt by acts like running away from
the scene, or trying to avoid detection. He did not offer any false excuse or make any
false statements, when arrested. The mere fact that a male violent act was
committed, on a sudden impulse with no discoverable motive will not in general,
afford sufficient basis for accepting a plea of insanity. In the instant case, we are
satisfied that the protections Under Section 84, IPC are to be extended to the
accused. Though he committed the act, by reason of unsoundness of mind, was
incapable of knowing the nature of the act, that it was wrong and contrary to law.
The accused shall be lodged at the Circle Jail. Sambalpur. He shall be treated for

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active symptoms at V. S. S. Medical College Hospital, Burla. For other therapies the
Psychiatrist appointed in the Circle Jail, Sambalpur shall be consulted and the
accused shall be kept under his treatment until he is certified to be mentally fit by
him. It is open to any of his friends or relatives to move the learned Sessions Judge,
Sundargarh to deliver the accused to him/her. If such a motion is made, the same
shall be considered keeping the welfare of the accused in view.
The appeal is allowed.
D.M. Patnaik, J.
13. I agree.

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