Luvana Vaghumal Kherajmal vs State on 10 March, 1954

Gujarat High Court

Luvana Vaghumal Kherajmal vs State on 10 March, 1954
Equivalent citations: 1955 CriLJ 63
Author: Baxi
Bench: Shah, Baxi
JUDGMENT Baxi, J.

(1) The appellant was convicted for the offence-Under Section 302 IPC of murdering his wife-and
sentenced to transportation for life.

He is a displaced person and lived with his-wife and three daughters in a room on the ground floor
of a building in Kutiana. The adjoining, rooms on the ground floor are occupied by Jivat-mal
Lalchand. The rooms on the upper floor are occupied by Timamal Sabumal. Across the-road and in
front of the deli of the appellant's, house live Dadumal Devandas and Kanayala Sunderdas.

The appellant's father-in-law Anandmal Asan-das, who lives in Bhavnagar, had come two days
before the offence to take the appellant's wife with him. The offence is alleged to have been
committed during the night between 4-4-53 and 5-4-53.

According to prosecution the appellant was sleeping with his wife and their youngest daughter in the
room. Jiwatmal and the appellant's two other daughters were sleeping in the court yard. Anandmal
was sleeping on the floor with Timamal.

At about 1 or 1-30 a. m. Jiwatmal woke up on hearing cries coming from the appellant's room.
Someone was crying "murder murder." Jiwatmal thereupon called Timamal and Anandmal, who
came down on hearing Jiwatmal's cries. They all rushed to the appellant's room and called' him to
open the door, which was bolted from. inside. The appellant however did not open the door and they
looked through a widow. A kerosene night lamp was burning in the room and with the aid of its light
they saw the appellant's wife lying on the floor in a pool of blood while the appellant was pacing the
room in an agitated state of mind.

His Dhoti and shirt were stained with blood. Jiwatmal and others then rushed out of the deli and
called out to other neighbours for help.

Kanyalal Sunderdas and Dadumal Devandaa came down on hearing the cries. The appellant, in the
meantime, opened the rear door of his room abutting on a road and went away. Jiwatmal and
Timamal tried to chase him but they could not catch him and he disappeared in the darkness of the
night. Meanwhile the Police Constable Tarachand Gordhan happened to pass by. Kanyalal told him
that the appellant had murdered his wife and had run away towards the cemetery and the corpse
was lying in the house. The appellant's father Kherajmal had also come up by this time. The
Constable therefore went Into the room and had a look at the corpse and then went to the Police
Station where he gave information to the Sub-Inspector of Police.

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 Luvana Vaghumal Kherajmal vs State on 10 March, 1954

The Sub-Inspector immediately came to the scene. The floor of the room was found full of blood and
the muddamal blood-stained knife was recovered from under a carpet of one of the cots.

In the meanwhile the appellant was seen hiding in a ruined house in the cemetery. He was found
stark naked by some other Constable and his father Kherajmal on being told about it lent him- a
shirt and a Dhoti. He was arrested by the police at about 3 p.m. The blood-stained Dhoti and shirt
which he had worn during the night were found in another adjoining ruin. These clothes and the
knife are found by the Government Serologist to be stained with human blood.

(2) A post mortem examination of the dead body revealed that the deceased had 20 injuries on her
person, 14 of which were stab wounds and contused wounds. They were all on the neck and
shoulders and near the clavicle bone. One injury had punctured the carotid after causing
haemorrhage and in the opinion of the Doctor death was due to loss of blood by haemorrhage.

The appellant denied having committed the offence and pleaded utter ignorance of the murder. The
cross-examination of prosecution witnesses was however directed to showing that the appellant was
of unsound mind. Two defence witnesses Revachand Savaldas and Thanumal Gulmal were also
examined in support of the plea of insanity. The learned Additional Sessions Judge held that the
appellant had committed the murder and rejected his plea of insanity and convicted and sentenced
him as above.

(3) That the appellant fatally stabbed his wife with the muddamal knife and committed the offence
of murder was not disputed before us and it is now impossible to dispute it. We have described the
injuries on the deceased and the nature of the wounds leaves no doubt that whoever caused them
must have intended to cause her death or to cause such bodily injuries to her which were sufficient
in the ordinary course of nature to cause death. That the appellant was the person responsible for
the injuries is equally clear.

Anandmal Ex. 8, Jiwatmal Ex. 16 and Timamal Ex. 19 were the first to come on the scene and they
saw the woman lying on the floor and the appellant pacing the room in an agitated state of mind and
his dhoti and the shirt were stained with human blood. The appellant was alone with his wife at the
time of the murder and the room was bolted from inside and no one else could have entered it. He
was seen running away when the alarm was given and found hiding in a ruin nearby. He had
discarded the bloodstained clothes and according to prosecution he had even attempted to rub off
the blood stains on his person with dust.

These circumstances are incompatible with any other conclusion except that he and no one else
could have committed the murder and the only point which requires to be considered is whether the
appellant has succeeded in establishing the plea of insanity.

(4) Section 84 of the Penal Code, which deals with insanity as a defence against criminal liability, is
In the following terms:

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 Luvana Vaghumal Kherajmal vs State on 10 March, 1954

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.

In order therefore to establish the plea of in-.sanity the accused has to show that he was of (unsound
mind at the time of the commission of the act and that by reason of this unsoundness of the mind he
was incapable of knowing the nature of the act or that what he was doing was either wrong or
contrary to law. It is not enough to prove mere mental derangement or what is termed as medical
insanity. The accused must show that his cogitative faculties were so impair ed that he was deprived
of the power of understanding the nature of the act or distinguishing right from wrong. Conversely if
his cogitative faculties are not so impaired as to make it impossible for him to know the nature oJ
his act or that what he was doing was wrong or contrary to law he is not exempt from criminal
liability. Besides this state of mind must be proved to exist at the time of the commission of the act.
The appellant's plea of insanity has to be judged in the light of the above principles.

(5) The prosecution examined the appellant's father Kherajmal Ex. 33. He gives us a detailed
account of the nature of the symptoms displayed by the appellant and the duration and course of the
alleged insanity.

According to him the appellant was out of job for about a year (before the date of his deposition in
the Sessions Court) i. e. since about September 1952. He was not getting sleep which vas the cause of
his mental derangement. He seemed to have occasional mental aberration with lucid intervals
between them but while the fit was on him he would cast off his clothes, run away from the house,
sometimes he would weep and sometimes he would laugh, and continue to stare about him. During
lucid intervals however he was quite normal.

Kherjamal further deposes that he had consulted Vaid Ghumanmal for the appellant's mental illness
and Ghumanmal was treating him. He cites two specific instances showing the appellant's mental
condition. He had beaten his wife on 27-8-52 but we shall revert to this incident later on. In about
January 1953 the appellant ran away from home and Kherajmal and the appellant's wife had to go
and search for him. They brought him back but at this time he was quite naked. The defence witness
Rewachand Sawaldas Ex. 45 corroborates Kherajmal on this point.

Kherajmal further tells us that the appellant had one of these fits on him during the last seven or
eight days before the offence and had to be actually confined in his room and was released only two
days before the offence when his father-in-law Anandmal came from Bhavnagar and he was handed
over to Anandlal.

Bachumal Kothumal Ex. 30, is another witness, who describes the appellant's symptoms. In answer
to the Court he stated that he had seen the appellant in the bazar about eight days before the offence
and at that time he appeared to be insane. Anandmal the appellant's father-in-law, Ex. 8, is,
however, very definite that he did not know about the appellant's insanity and suggests that there
was nothing wrong with him except that he suffered from sleeplessness. He does not mention that
on his arrival from Bhavnagar, the appellant was released from confinement and handed over to

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 Luvana Vaghumal Kherajmal vs State on 10 March, 1954

him and no such question was put to him during his cross-examination Jiwatmal and Timamal, who
live in the same building, also do not appear to have noticed any symptoms of insanity of the
appellant and they apparently know nothing about his being confined in the room. On the contrary
they depose that the appellant used to give rational answers to the questions put to him about his
health and complained of sleeplessness, Dadumal Dewandas, Ex, 22, who lives in the opposite house
does not speak of any exhibition of insanity by the appellant nor did Kanyalal Sunderdas Ex. 24
notice any symptoms except that he had heard that the appellant had once run away from home.

The appellant was examined by the Medical Officer in Kutiana in August 1952 when the appellant
had complained to him of insomnia and mental weakness. At that time the appellant's intellect had
appeared to him to be "dull". This was about eight months before the offence and He did not see the
appellant again till after his arrest but at this time in the Doctor's words the appellant was shouting
"like a mad man." This, in a nutshell, is the evidence on the appellant's alleged insanity.

(6) From the above evidence there appears to tie no doubt that the appellant had lost sleep for about
eight months before the offence. This is deposed to by the Medical Officer and all other witnesses
and this insomnia might have brought about a nervous state of mind in the accused. But Kherajmal
is exaggerating the symptoms and His statement that the appellant exhibited signs of insanity eight
days before the offence and had to be confined is without a doubt untrue. Anand-mal to whom the
appellant is stated to have been handed over makes no mention of it.

The defence witness Rewachand no doubt corroborates Kherajmal and states that the appellant had
run away from his house and was brought back by his wife and Kherajmal in a naked condition but
surprisingly not one of the next door neighbours viz. Jiwatmal, Timamal, Dadumal and Kanyalal
deposes to any exhibition of insanity by the appellant. That he was definitely not violent and there
was no need to confine him is also proved by Jiwatmal. who states in paragraphs 72 and 74 of his
deposition, that the appellant had not assaulted any one during four or five months before the
offence and that neither he nor Timamal nor any one else entertained any misgiving that the
appellant would kill his wife.

It is true that the appellant had beaten his wife about eight months before the offence. Her
complaint dated 28-8-52 had been brought on record as Ex. 43 to prove it. In this complaint she
states that her husband had run away after beating her and that he had beaten her because he was
mentally not sound. But the statement appears to have been made because the matter had become
public and the police and leaders of displaced persons in Kutiana had visited and questioned her
and the statement appears to have been inspired by her natural anxiety., to save her husband or
through pressure of his relations.

The statement is moreover of no avail to the defence. The beating took place in the initial stages of
the appellants' alleged insanity and Kherajmal admits that since then the appellant had lucid
intervals. Therefore except as a piece of evidence that the appellant had once beaten his wife the
statement is without any significance.

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 Luvana Vaghumal Kherajmal vs State on 10 March, 1954

Another significant piece of evidence which falsifies Kherajmal is his own conduct in separating his
son. He would not do so if the appellant was subject to fits of insanity.

It is further noticeable that if the appellant exhibited signs of violent insanity which rendered it
necessary to confine him, he should not have been allowed to sleep with his wife and children. All
that the evidence amounts to is that the appellant was suffering from insomnia which might have
brought about nervousness of mind. The evidence of Anandmal and all the neighbours which we
prefer to accept to the evidence of Kherajmal and which has been accepted by the Sessions Judge
does not suggest anything more than that.

(7) The appellant's own conduct at the time of the offence throws considerable light on his mental
state. When the hue and cry was raised, he ran away from the back door and hid himself in a ruin.
He discarded his blood-stained clothes and even attempted to remove the stains from his person by
rubbing them with dust though the Medical Officer states that the appellant appeared to have
contacted dust while in the act of secreting himself in the ruin and it did not appear to him that he
had intentionally applied dust to his person in order to remove blood stains.

We attach no importance to his opinion as the question whether dust was applied deliberately or not
by the appellant is a question which an expert is not required to answer.

Moreover except that he examined the appellant once about eight months, before the offence his
entire evidence appears to have been the result of inferences based upon his observations on one
occasion only made eight months before the offence. The Medical Officer states that the appellant
was shouting after his arrest like a mad man but he had not kept him under observation and his
shouts may well be simulated. His history before the offence and his conduct during and after the
offence which are sure criteria for judging his mental state leave no doubt that whether lie was
mentally weak or not at the time of committing the murder he fully understood the nature of his act
and his plea of insanity was rightly rejected by the learned Additional Sessions Judge.

(8) Before concluding the judgment it is necessary to advert to an order of the Additional Sessions
Judge passed during the trial. The defence had summoned Vaid Ghumanmal, but the summons
could not be served on him and the appellant's learned Advocate applied for an adjournment. The
learned Judge refused to adjourn the case.

The appellant had been examined according to Kherajmal and Timamal by Ghumanmal about six or
eight months before the offence and his Advocate declared before the Judge that Ghuman-mal's
evidence would be in relation to the appellant's condition during that period. The learned Judge
therefore held that Ghumanmars evidence would not throw any light on the state of mind of the
accused at or about the time of the murder which was the really material point and refused the
adjournment. It was argued before us that the Additional Sessions Judge's order was wrong and he
should have permitted the appellant an opportunity of examining Vaid Ghumanamal.

In our opinion the learned Additional Sessions Judge exercised his discretion properly in refusing
the adjournment. On the appellant's advocate's statement in the Court below and from the evidence

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 Luvana Vaghumal Kherajmal vs State on 10 March, 1954

of Kherajmal and Timamal, it is clear that Ghumanmal's evidence would serve no useful purpose in
ascertaining the accused's state ef mind at or about the time of the commission I of the offence as
Ghumanraal had seen the appellant about six or eight months before the offence. The learned
Advocate General informed 11s that Ghumanmal was a displaced person and bad left Saurashtra.
We do not think that under the circumstances the learned Judge did not act properly in refusing to
adjourn the trial.

(9) In the result the appellant's conviction and sentence are confirmed and the appeal is ordered to
be dismissed. The appellant appears to have committed the offence in a state of desperation brought
about by utter destitution to which he was reduced for some months before the offence. His
unemployment was undermining his mental powers and we think that under these circumstances
the Government may well exercise its prerogative of mercy and commute his sentence to a smaller
term of imprisonment.

Shah C.J.

(10) I agree.

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