STATE OF RAJASTHAN versus SHERA RAM @ VISHNU DUTTA

[2011] 15 (ADOL.) S.C.R. 485

STATE OF RAJASTHAN v.

SHERA RAM @ VISHNU DUTTA (Criminal Appeal No. 1502 of 2005)

DECEMBER 1, 2011 {SWATANTER KUMAR AND RANJANA PRAKASH DESAI, JJ.]

--Penal Code, 1860 ss.84, 302, ?95 and 449 Murder - Plea of insanity - Maintainability of - Respondent caused death of deceased by hurling stone on his head - Conviction -by Trial Court Acquittal by High Court primarily on the ground that at the time of incident, accused was person of unsound mind within meaning of s. 84 - Appeal against the -acquittal Held: Oral and documentary evidence clearly O showed that respondent was suffering from epileptic attacks just prior to the incident - Immediately prior to the occurrence, he had behaved violently and had caused injuries to his own -family members After committing the crime, he was arrested by the Police and even thereafter, he was treated for insanity, while in jail - There was evidence to show continuous mental -sickness of the respondent High Court on the basis of documentary and oral evidence had taken view which was possible view and could not be termed as peNerse or being supported by no evidence - The finding of High Court, being in consonance with the well settled principles of criminal jurisprudence, did not call for any interference, particularly when the appellant-State did not bring to the fore any evidence- documentary or otherwise, to persuade the Supreme Court to take contrary view.

--Appeal Appeal against acquittal Distinction between -appeal against acquittal and appeal against conviction Limitation upon the powers of the appellate court to interfere

-A with the judgment of acquittal and reverse the same Discussed.

--Criminal Trial Exemption from criminal liability

-Accused taking plea o( insanity Held: person alleged to be suffering from any mental disorder cannot be exempted -from criminal liability ipso facto The onus would be on the accused to prove by expert evidence that he is suffering from such mental disorder or mental condition that he could not -be expected to be aware of the consequences of his act Once, person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek -resort to the general exceptions from criminal liability Penal -D Code, 1860 s.84.

Respondent abruptly hurled stone on the head of

person resulting into his instantaneous death. The trial court convicted the respondent under Sections 302, 295 and 449 IPC and sentenced him to undergo imprisonment for life. However, the High Court acquitted him primarily on the ground that at the time of incident, he was person of unsound mind within the meaning of Section 84 IPC. Aggrieved by the said judgment, the State filed the present appeal.

Dismissing the appeal, the Court

HELD: 1.1. As evident, this is an appeal against judgment of acquittal. judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or view which could not have been taken by the court of competent jurisdiction keeping in

STATE OF RAJASTHAN v. SHERA RAM @ VISHNU 487 DUTIA

view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal. [Paras 8,9] [494-H; 495-A-B]

1.2. The penal laws in India are primarily based upon

certain fundamental procedural values, which are right to fair trial and presumption of innocence. person is presumed to be innocent till proven guilty and once held to be not guilty of criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for. [Para 1 OJ [495-C-D]

1.3. There is very thin but fine distinction between

an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of 'the accused has been fortified by his acquittal and if the view adopted by the High Court is reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience. [Para 12] [500-C-F]

1.4. There is no absolute restriction in law to review

and re-look the entire evidence on which the order of acquittal is founded. If, upon scrutiny, the appellate court finds that the lower court's decision is based on erroneous views and against the settled position of law then the said order of acquittal should be set aside. [Para 13] [500-G-H]

1.5. In the present case, the impugned judgment of

acquittal recorded by the High Court does not suffer from any legal infirmity and, therefore, does not call for any interference. In the normal course of events, this Court is required not to interfere with judgment of acquittal. [Para 15] [501-C]

State of Rajasthan, Through Secretary, Home Department v. Abdul Mannan (2011) 8 SCC 65; State (Delhi Administration) v. Laxman Kumar & Ors. (1985) 4 SCC 476: 1985 (2) Suppl. SCR 898; Raj Kishore Jha v. State of Bihar & Ors. AIR 2003 SC 4664: 2003 (4 ) Suppl. SCR 208; Inspector of Police, Tamil Nadu v. John David JT 2011 (5)

SC 1 - relied on.

2.1. Section 84 IPC states that nothing is an offence

which is done by 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 what he is doing is either wrong or contrary to law. It is obvious from bare reading of this provision that what may be generally an offence would not be so if the ingredients of Section 84 IPC are satisfied. It is an exception to the general rule. Thus, person who is proved to have committed an offence, would not be deemed guilty, if he falls in any of the general exceptions stated under this Chapter. [Paras 17, 18] [501-F-H; 502-A]

2.2. To commit criminal offence, mens rea is

generally taken to be an essential element of crime. It is said furiosus nulla voluntus est. In other words, person

STATE OF RAJASTHAN v. SHERA RAM @ VISHNU 489 DUTIA

who is suffering from mental disorder cannot be said to have committed crime as he does not know what he is doing. For committing crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But person of unsound mind or person suffering from mental disorder cannot be said to possess this basic norm of human behavior. [Para 19] [502-B-D]

2.3. person alleged to be suffering from any mental

disorder cannot be exempted from criminal liability ipso facto. The onus would be on the accused to prove by expert evidence that he is suffering frnm such mental disorder or mental condition that he could not be expected to be aware of the consequences of his act. [Para 20) [503-B]

2.4. Once, person is found to be suffering from

mental disorder or mental deficiency, which takes within · its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability. [Para 21] [503-C-D]

Surendra Mishra v. State of Jharkhand (2011) 3

-SCC(Cri.) 232 relied on.

Medical Jurisprudence and Toxicology by Modi and HWV COX Medical Jurisprudence and Toxicology (7th Edn) -by PC Dikshit referred to.

3.1. In the present case, the oral .and documentary

evidence clearly shows that the respondent was suffering from epileptic attacks just prior to the incident.

Immediately prior to the occurrence, he had behaved violently and had caused injuries to his own family members. After committing the crime, he was arrested by the Police and even thereafter, he was treated for insanity, while in jail. [Para 27] (505-H; 506-A]

3.2. There is evidence to show continuous mental

sickness of the respondent. He not only caused death of the deceased but also on the very same day injured and caused hurt to his family members including DW-1. His statement made under Section 313 Cr.PC is fully corroborated by oral and documentary evidence of DW-2, the Doctor who had treated the respondent, and the medical prescription slips, Ext. D-3 and D-4. Though, the High Court has not discussed this evidence in great detail, but this being an admissible piece of evidence, can always be relied upon to substantiate the conclusion and findings recorded by the High Court. [Para 28] [506-B-C]

3.3. The High Court on the basis of the documentary

and oral evidence has taken view which was possible and cannot be termed as perverse or being supported by no evidence. The finding of the High Court, being in consonance with the well settled principles of criminal jurisprudence, does not call for any interference. More so, the State has not brought to the notice of this Court any evidence, documentary or otherwise, which could persuade this Court to take contrary view i.e. other than the view taken by the High Court. [Para 29] [506-E-F]

4.1. Another aspect of this case which requires

consideration by this Court is that the case of the prosecution suffers from legal infirmity. In fact, the prosecution has failed to prove beyond reasonable doubt that the injury inflicted by the respondent upon the deceased was sufficient in the ordinary course of nature to cause death. It is the case of the prosecution that the respondent had hurled stone which had caused injury

STATE OF RAJASTHAN v. SHERA RAM @ VISHNU 491 DUTTA

(lacerated wound on the left side of the forehead) whereupon the deceased fell on the ground and subsequently collapsed. The injury is said to be 2" x Y." x upto bone, transversely Lt. side of forehead and another lacerated wound 2" x %" x '!.'' near injury No.1 towards the forehead. These are the injuries which the deceased is stated to have suffered. In addition, abrasion of 1 cm x 1 cm on the left eyebrow was also present. According to the doctor, all these injuries were ante mortem in nature and the cause of death was shock and haemorrhage due to head injury. [Para 30] [506-G-H; 507· A-B]

4.2. In the statement of PW-20, the Doctor who

prepared the post-mortem report, it is nowhere stated that the injuries caused by the respondent were sufficient In the ordinary course of nature to cause death. It is also not recorded in the post-mortem report, Ext. 37. Th1s was material piece of evidence which the prosecution was expected to prove in order to bring home the guilt of the respondent. This is serious deficiency in the case of the prosecution. Absence of this material piece of evidence caused dent in the case of the prosecution. The High Court has not taken note of this important aspect of the case. [Para 31] [507-C-D]

4.3. Ex-facie, the injuries do not appear to be so vital

that they could have resulted in the death of the deceased, but this fact was required to be proved by expert evidence. However, the question whether the particular injury was sufficient in the ordinary course of nature to cause death or not is question of fact which will have to be determined in light of the facts, circumstances and evidence produced in given case. There could . be cases where injuries caused upon the ,, . body of the deceased per se can irresistibly lead to the conclusion that the injuries were sufficient to cause death

in the ordinary course of nature, while there may be other cases where it is required to be proved by documentary and oral evidence. Resultantly, it will always depend on the facts of each case. [Paras 33, 35] [507-G; 511-D-F]

State of Rajasthan v. Kalu (1998) SCC (Cri.) 898 - relied on.

Ram Jattan and Others v. State of UP. (1995) SCC (Cri) 169 - referred to.

-Ha/sbury's Laws of India 5(2) Criminal Law-II referred to.

Case Law Reference:

CRIMINAL APPELLATE JURISDICTION: CriminalAppeal

No. 1502 of 2005.

From the Judgment & Order dated 21.2.2004 of the High

Court of Judicature for Rajasthan at D.B. Criminal Appeal No. 375 of 2000.

Kamran Malik, lmtiaz Ahmad and Milind Kumar for the appellant.

Doongar Singh, V.J. Francies and Anupam Mishra for the Respondent.

STATE OF RAJASTHAN v. SHERA RAM @ VISHNU 493 DUTTA

The Judgment of the Court was delivered by

SWATANTER KUMAR, J. 1. Respondent Shera Ram @ Vishnu Dutta was charged for committing an offence under Sections 302, 295 and 449 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to undergo imprisonment for life by the Additional Sessions Judge-1, Jodhpur vide judgment dated 7th June, 2000. However, upon appeal, he came to be acquitted of all the offences by Division Bench of the High Court of Rajasthan vide order dated 21st February, 2004 primarily on the ground that at the time of incident, he was person of unsound mind within the meaning of Section 84 IPC and was directed to be detained in safe custody in an appropriate hospital or place of custody of non-criminal lunatics as would be provided to him by the State Government under the direct supervision of the Jail Authorities till the time he was cured of his mental illness and infirmity.

2. Aggrieved from the said judgment, the State of

Rajasthan has presented this appeal by way of special leave petition.

3. Before we proceed to dwell upon the merits of the case

and the legal issues involved in the present appeal, reference to the case of the prosecution would be necessary. According to the prosecution, on 10th March, 1999 at about 7.15 a.m., while Pujari Tulsi Das (now deceased) was in the Raghunathji's temple, the respondent abruptly hurled stone on his head resulting into his instantaneous death. The respondent also damaged the idol and other properties of the temple. This all was unprovoked. The incident was witnessed by the villagers including PW-6 Santosh, PW-11 Narsingh Ram and PW-16, Smt. Tiku Devi.

4. PW-2, Ghan Shyam Das Daga reported the matter to

the police immediately. Upon receipt of the information, the police registered case under Section 302 IPC and proceeded with the investigation. Besides recording statements

of number of witnesses, the Investigating Officer also prepared the site plan and the inquest memo. The body of the deceased was sent for post-mortem which was performed by PW-20, Dr. C.P. Bhati, who prepared the post-mortem report Ext'. P-37.

5. After investigation, the police filed the challan upon

which, the respondent was committed to the appropriate Court of Sessions for trial. The charge-sheet was filed under Sections 302, 295 and 449 IPC, as already noticed. The respondent denied the charges leveled against him and claimed trial.

6. The prosecution examined as many as 23 witnesses to

prove its case. The material piece of evidence appearing in the case of the prosecution against the respondent were put to him and his statement was recorded by the learned Trial Court under Section 313 of the Code of Criminal Procedure, o 1973 (for short 'Cr.PC'). According to the respondent, his mental condition right from the year 1992-1993 was not good and occasionally he suffered from fits of insanity. He had undergone treatment for the same. He has stated that in the jail also, he was receiving the treatment. To put it simply, he claimed the defence of insanity under Section 84 IPC. The defence also examined DW-2, Dr. Vimal Kumar Razdan and DW-1, Bhanwar Lal, brother of the respondent who had produced records to show that the respondent was person suffering from insanity of mind. The learned Trial Court rejected the plea of defence of insanity and convicted the respondent.

7. The respondent preferred an appeal against the

judgment and order of conviction by the Trial Court which resulted in his acquittal vide order dated 21st February, 2004 with the afore-noticed directions to the State Government. Dissatisfied from the said judgment, the State has preferred the present appeal.

8. As is evident from the above-noted facts, it is an appeal

against the judgment of acquittal. The plea of insanity raised by the respondent has been accepted by the High Court resulting in his acquittal.

9. judgment of acquittal has the obvious consequence

of granting freedom to the accused. This Court has taken consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.

10. The penal laws in India are primarily based upon

certain fundamental procedural values, which are right to fair trial and presumption of innocence. person is presumed to be innocent till proven guilty and once held to be not guilty of criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appe_al against acquittal has always been differentiated from normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for. We may refer to recent judgment of this Court in the case of State of Rajasthan, Through Secretary, Home Department v. Abdul Mannan ((2011) 8 SCC 65], wherein this Court discussed the limitation upon the powers of the appellate court to interfere with the judgment of acquittal and reverse the same.

11. This Court referred to its various judgments and held as under:-

"12. As is evident from the above recorded findings, the judgment of conviction was converted to judgment of acquittal by the High Court. Thus, the first and foremost question that we need to consider is, in what circumstances this Court should interfere with the judgment of acquittal. Against an order of acquittal, an appeal by the State is maintaihable to this Court only with the leave of the Court. On the contrary, if the judgment of acquittal passed by the trial court is set aside by the High Court, and the accused

is sentenced to death, or life imprisonment or imprisonment for more than 10 years, then the right of appeal of the accused is treated as an absolute right subject to the provisions of Articles 134(1 )(a) and 134(1)(b) of the Constitution of India and Section 379 of the Code of Criminal Procedure, 1973. In light of this, it is obvious that an appeal against acquittal is considered on slightly different parameters compared to an ordinary appeal preferred to this Court.

13. When an accused is acquitted of criminal

charge, right vests in him to be free citizen and this Court is very cautious in taking away that right. The presumption of innocence of the accused is further strengthened by the fact of acquittal of the accused under our criminal jurisprudence. The courts have held that if two views are possible on the evidence adduced in the case, then the one favourable to the accused, may be adopted by the court. However, this principle must be applied keeping in view the facts and circumstances of case and the thumb rule is that whether the prosecution has proved its case beyond reasonable doubt. If the prosecution has succeeded in discharging its onus, and the error in appreciation of evidence is apparent on the face of the record then the court can interfere in the judgment of acquittal to ensure that the ends of justice are met. This is the linchpin around which the administration of criminal justice revolves.

14. It is settled principle of criminal jurisprudence

that the burden of proof lies on the prosecution and it has to prove charge beyond reasonable d-"'ubt. The presumption of innocence and the rig ht to fair trial are twin safeguards available to the accused under cur criminal justice system but once the prosecution has proved its case and the evidence led by the prosecution, in conjunction with the chain of events as are stated to have

occurred, if, points irresistibly to the conclusion that the accused is guilty then the court can interfere even with the judgment of acquittal. The judgment of acquittal might be based upon misappreciation of evidence or apparent violation of settled canons of criminal jurisprudence.

15. We may now refer to some judgments of this

Court on this issue. In Stale of MP. v. Bacchudas, the Court was concerned with case where the accused had been found guilty of an offence punishable under Section 304 Part II read with Section 34 IPC by the trial court; but had been acquitted by the High Court of Madhya Pradesh. The appeal was dismissed by this Court, stating that the Supreme Court's interference was called for only when there were substantial and compelling reasons for doing so. After referring to earlier judgments, this Court held as under: (SCC pp. 138-39, paras 9-10)

"9. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. miscarriage of justice which may arise from acqu!ttal of the guilty is no less than from the conviction of an innocent. In case where · admissible evidence is ignored, duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted, for the

purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh v. State of M.P.) The principle to bE1\followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, Ramesh Babula/ Doshi v. State of Gujarat, Jaswant Singh v. State of Haryana, Raj Kishore Jha v. State of Bihar, State of Punjab v. Kamai/ Singh, State of Punjab v. Pho/a Singh, Suchand Pal v. Phani Pal and Sachchey Lal Tiwari v. State of U.P.

10. When the conclusions of the High Court in

the background of the evidence on record are tested on the touchstone of the principles set out above, the inevitable conclusion is that the High Court's judgment does not suffer from any infirmity to warrant interference."

16. In very recent judgment, Bench of this Court

in State of Kera/a v. C.P. Rao decided on 16-5-2011, discussed the scope of interference by this Court in an order of acquittal and while reiterating the view of three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan, the Court held as under:

"13. In coming to this conclusion, we are reminded of the well-settled principle that .vhen the court has to exercise its discretion in an appeal arising against an order of acquittal, the court must remember that the innocence of the accused is

STATE OF RAJASTHAN v. SHERA RAM @ VISHNU 499 DUTTA [SWATANTER KUMAR, J.)

further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in an order of acquittal has been very succinctly laid down by three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan 212. At SCR p. 129, Subba Rao, J. (as His Lordship then was) culled out the principles as follows:

'9. The foregoing discussion yields the

following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford correct guide for the appellate court's approach to case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons", are not intended to curtail the undoubted power of an appellate. court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified'."

17. Reference can also be usefully made to the

judgment of this Court in Suman Sood v. State of Rajasthan, where this Court reiterated with approval the principles stated by the Court in earlier cases, particularly, Chandrappa v. State of Karnataka. Emphasising that expressions like "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances",

"distorted conclusions'', "glaring mistakes", etc. are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal, the Court stated that such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with the acquittal. Thus, where it is possible to take only one view i.e. the prosecution evidence points to the guilt of the accused and the judgment is on the face of it perverse, then the Court may interfere with an order of acquittal."

12. There is very thin but fine distinction between an

appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.

13. Also, this Court had the occasion to state the principles which may be taken into consideration by the appellate court while dealing with an appeal against acquittal. There is no absolute restriction in law to review and re-look the entire evidence on which the order of acquittal is founded. If, upon scrutiny, the appellate court finds that the lower court's decision is based on erroneous views and against the settled position of law then the said order of acquittal should be set aside. {See

State (Delhi Administration) v. Laxman Kumar & Ors. ((1985) 4 SCC 476], Raj Kishore Jha v. State of Bihar & Ors. [AIR 2003 SC 4664], Inspector of Police, Tamil Nadu v. John David [JT 2011 (5) SC 1] }

14. To put it appropriately, we have to examine, with reference to the present case whether the impugned judgment of acquittal recorded by the High Court suffers from any legal infirmity or is based upon erroneous appreciation of evidence.

15. In our considered view, the impugned judgment does

not suffer from any legal infirmity and, therefore, does not call for any interference. In the normal course of events, we are required not to interfere with judgment of acquittal.

16. Having deliberated upon the above question of law, we

may now proceed to discuss the merits of the case in hand. The High Court after consideration of the entire evidence produced by the prosecution, affirmed the finding that the incident as alleged by the prosecution had occurred and the respondent had hurled stone on the head of Pujari Tulsi Das which resulted in his death. This being finding of fact based upon proper appreciation of evidence, does not call for any interference by us.

17. The corollary that follows from the above is whether

having committed the charged offence, the respondent is entitled to the benefit of the general exception contained in Section 84, Chapter IV of the IPC? Section 84 states that nothing is an offence which is done by 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 what he is doing is either wrong or contrary to law.

18. It is obvious from bare reading of this provision that

what may be generally an offence would not be so if the ingredients of Section 84 IPC are satisfied. It is an exception to the general rule. Thus, person who is proved to have

committed an offence, would not be deemed guilty, if he falls in any of the general exceptions stated under this Chapter.

19. To commit criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosus nu/la voluntus est. In other words, person who is suffering from mental disorder cannot be said to have committed crime as he does not know what he is doing. For committing crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But person of unsound mind or person suffering from mental disorder cannot be said to possess this basic norm of human behavior. In the case of Surendra Mishra v. State of Jharkhand ((2011) 3 SCC(Cri.) 232], the Court was dealing with case where the accused was charged for an offence under Section 302 IPC and Section 27 of the Arms Act. While denying the protection of Section 84 of the IPC to the accused, the Court held as under:-

"9. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the 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 affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behavior or the behavior is

STATE OF RAJASTHAN v. SHERA RAM @ VISHNU 503 DUTTA [SWATANTER KUMAR, J.)

queer are not sufficient to attract the application of Section 84 of the Indian Penal Code."

20. From the above-stated principles, it is clear that

person alleged to be suffering from any mental disorder cannot be exempted from criminal liability ipso facto. The onus would be on the accused to prove by expert evidence that he is suffering from such mental disorder or mental condition that he could not be expected to be aware of the consequences of his act.

21. Once, person is found to be suffering from mental

disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability.

22. Epileptic Psycnosis is progressing disease and its effects have appropriately been described in the text book of Medical Jurisprudence and Toxicology by Modi, 24th Ed. 20.11 where it states as follows:-

"Epileptic Psychosis. - Epilepsy usually occurs from early infancy, though it may occur at any period of life. Individuals, who have had epileptic fits for years, do not necessarily show any mental aberration, but quite few of them suffer from mental deterioration. Religiousity is marked feature in the commencement, but the feeling is only superficial. Such patients are peevish, impulsive and suspicious, and are easily provoked to anger on the slightest cause.

The disease is generally characterized by short transitory fits of uncontrollable mania followed by complete recovery. The attacks, .however, become more frequent. There is general impairment of the mental faculties, with loss of memory and self-control. At the same time, hallucinations

of sight and hearing occur and are followed by delusions of persecuting nature. They are deprived of all moral sensibility, are given to the lowest forms of vice and sexual excesses, and are sometimes dangerous to themselves as well as to others. In many long-standing cases, there is progressive dementia or mental deficiency. True epileptic psychosis is that which is associated with epileptic fits. This may occur before or after the fits, or may replace them, and is known as pre-epileptic, post-epileptic and masked or psychic phases (psychomotor epilepsy) -Post-Epileptic Mental Ill-health In this condition, stupor following the epileptic fits is replaced by automatic acts of which the patient has no recollections. The patient is confused, fails to recognize his own relatives, and wanders aimlessly. He is terrified by visual and auditory hallucinations of religious character and delusions of persecution, and consequently, may commit crimes of horrible nature, such as thefts, incendiarism, sexual assaults and brutal murders. The patient never attempts to conceal them at the time of perpetration but on regaining consciousness may try to conceal them out of fear."

23. Similar features of Epilepsy have been recorded in the HWV COX Medical Jurisprudence and Toxicology (7th Edn) by PC Dikshit.

24. Reverting to the facts of the present case, it may be

noted that no witness of the prosecution including the Investigating Officer 11tat.ed anything with regard to the mental condiUon qf the respondent. However, the respondent not only in his statement under Section 313 Cr.P.C. took up the defence of mental disorder seeking benefit of Section 84 IPC but even led evidence, both documentary as well as oral, in support of his claim. He examined Dr. Vimal Kumar Razdan, DW-2, who deposed that he had examined the respondent and

had given him treatment. He, also, produced the examinati9n report in regard to the treatment of the respondent, Ext.D-5, which was prepared in his clinic.

25. According to the statement of this doctor and the

prescription, the respondent was suffering from Epilepsy and while describing post epileptic insanity, this witness stated that after the epileptic attack, patient behaves like an insane person and he is unable to recognise even the known persons and relatives. During this time, there is memory loss and the patient can commit any offence. In the prescription, Ext. D-3, issued by Dr. Ashok Pangadiya, it was stated that the patient was suffering from the fits disease and symptoms of behavioral abnormality. Two types of medication on the basis of diagnosis of epileptic disease and other one for insanity were prescrilted to the respondent who continued to take these medicines, post epileptic insanity.

26. Another witness who was produi:ed by the defence was

DW-1, Bhanwar Lal, the brother of the respondent. According to this witness, the respondent was suffering from mental disorder since 1993. He stated that when he gets the fits of insanity, he can fight with anybody, hit anybQdy and even throw articles lying around him. At the initial stage, Dr. Devraj Purohit ' haa treated him. Then Dr. V.K. Razdan treated him and thereafter, in Jaipur, Dr. Ashok Pagadiya!Pandharia also treated him. Even when he was in jail, he was un~r treatment. He produced the prescription slips i.e. Exts. D3 /a!l(J D4, This witness has also stated that on the date of occurrence at about -6.00 6.30 a.m., Shera Ram/respondent was not feeling well and, in fact, his condition was not good. Even at home he had broken the electricity meter and the bulbs. When the people at home including the witness tried to stop him, he had beaten DW-1 on his arm and after hitting him on the face he had run away.

27. This oral and documentary evidence clearly shows that the respondent was suffering from epileptic attacks just prio.r

to the incident. Immediately prior to the occurrence, he had behaved violently and had caused injuries to his own family members. After committing the crime, he was arrested by the Police and even thereafter, he was treated for insanity, while in jail.

28. Thus, there is evidence to show continuous mental

sickness of the respondent. He not only caused death of the deceased but also on the very same day injured and caused hurt to his family members including OW-1. His statement made under Section 313 Cr.PC is fully corroborated by oral and documentary evidence of OW-2 and Ext. 0-3 and 0-4. Though, the High Court has not discussed this evidence in great detail, but this being an admissible piece of evidence, can always be relied upon to substantiate the conclusion and findings recorded by the High Court.

29. In other words, the High Court on the basis of the

documentary and oral evidence has taken view which was possible and cannot be termed as perverse or being supported by no evidence. The finding of the High Court, being in consonance with the well settled principles of criminal jurisprudence, does not call for any interference. More so, the learned counsel appearing for the State has not brought to our notice any evidence, documentary or otherwise, which could persuade us to take contrary view i.e. other than the view

taken by the High Court.

30. Another aspect of this case which requires

consideration by this Court is that the case of the prosecution suffers from legal infirmity. In fact, the prosecution has failed to prove beyond reasonable doubt that the injury inflicted by the respondent upon the deceased was sufficient in the ordinary course of nature to cause death. It is the case of the prosecution that the respondent had hurled stone which had caused injury (lacerated wound on the left side of the forehead) whereupon the deceased fell on the ground and subsequently collapsed. The injury is said to be 2" x %" x upto bone,

transverse!ly Lt. side of forehead and another lacerated wourl'd 2" x %" x %" near injury No.1 towards the forehead. These are the injuries which the deceased is stated to have suffered. In addition, abrasion of 1 cm x 1 cm on the left eyebrow was also present. According to the doctor, all these injuries were ante mortem in nature and the cause of death was shock and haemorrhage due to head injury.

31. In the statement of PW-20, Dr. C.P. Bhati, it is nowhere

stated that the injuries caused by the respondent were sufficient in the ordinary course of nature to cause death. It is also not recorded in the post-mortem report, Ext. 37. This was material piece of evidence which the prosecution was expected to prove in order to bring home the guilt of the respondent. This is serious deficiency in the case of the prosecution. Absence of this material piece of evidence caused dent in the case of the prosecution. The High Court has not taken note of this important aspect ·of the case.

32. The learned counsel appearing for the respondent

placed reliance upon this evidence and strenuously contended that the respondent was entitled to acquittal on this basis alone. We should not be understood to have stated any absolute proposition of law, but in the facts and circumstances of the present case, it was expected of PW-20 to state before the Court as well as record the same in the post-mortem report prepared by him i.e. Ext. 37, that the injuries were sufficient in the ordinary course of nature to cause death of the deceased.

33. Ex-facie, injuries do not appear to be so vital that they

could have resulted in the death of the deceased, but this fact was required to be proved by expert evidence. The counsel for the respondent relied upon judgment of this Court in the case of Ram Jattan and Others v. State of U.P. ((1995) SCC (Cri) 169] where this Court held that it is not appropriate to interfere with the conclusion that the injuries are not sufficient to cause death unless they are so patent. The Court held as under:-

,, 508 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.

"4. The learned counsel, however, further submitted that in any event the offence committed by the members of unlawful assembly cannot be held to be one of murder and therefore the common object of unlawful assembly was not one which attracts the provision of Section 302 read with Section 149 IPC. We find considerable force in this submission. Though, in general, right from the first report onwards the prosecution case is that all the 12 accused armed with sharp-edged weapons and lathis surrounded the three persons and inflicted the injuries but from tne doctor's report we find that no injury was caused on the vital organs. So far as Patroo is concerned, who got the report written by PW 7 and gave it in the police station, we find 13 injuries but all of them were abrasions and lacerated injuries on the legs and hands. The doctor opined that all the injuries were simple. On Balli, PW 8, the doctor found 12 injuries and they were also on arms and legs. There was only one punctured wound, injurY No. 8 and it was not serious injury and it was also simple injury. Now, coming to the injuries on the deceased, the doctor who first examined him, when he was alive, found 11 injuries. Out of them, injuries Nos. 1 and 2 were punctured wounds. Injury No. 5 was an incised wound and injury No. 6 was penetrating wound. All these injuries were on the upper part of the right forearm and outer and lower part of right upper arm. The remaining ir.juries were abrasions and contusions. The doctor opined that except injuries Nos. 7 and 9 all other injuries were simple. He did not say whether injuries Nos. 7 and 9 were grievous but simply stated that they were to be kept under observation. The deceased, however, died the next day i.e. 9-4-1974 and the post-mortem was conducted on the same day. In the post-mortem examination 11 external injuries were noted but on the internal examination the doctor did not find any injury to the vital organs. He, however, noted that 8th and 9th ribs were fractured. Now, coming to the cause of death, he opined that death was due to shock and

haemorrhage. It is not ,noted that any of the injuries was sufficient to cause death in the ordinary ilourse of nature. It could thus be ~en that neither clause 1st1y' nor clause 3rdly of Section 300 are attracted to the facts of this case. This contention was also put forward before the High Court but the learned Judges rejected this contention observing that the fracture of 8th and 9th ribs must have resulted in causing death and therefore these injuries must be held to be sufficient in the ordinary course of nature to cause death~ We are unable to agree with this reasoning. In the absence of proof by the prosecution in an objective manner that the injuries caused were sufficient in the ordinary course of nature to cause death, the same cannot be interfered with unless the injuries are so patent. As we have noted above except fracture of ribs there was no other injury to any of the vital organs. As matter of fact internally the doctor did not notice any damage either to the heart or lungs. Even in respect of these two injuries resulting in fracture of the ribs, there were no corresponding external injuries. Again as already noted all the injuries were on the non-vital parts of the body. The .learned counsel for the State, however, submitted that forceful blow dealt on the am'! might have in turn caused the fracture of the two ribs. Even assuming for moment it to be so, it is difficult to hold that from that circumstance alone the common object of the unlawful assembly of 12 persons to cause the death of the deceased is established.

5. The common object has to be gathered or inferred

from the various circumstances like nature of the weapons, the force used and the injuries that are caused. After carefully going through the medical evidence we find that it is difficult to conclude that the common object was to cause the death. The injuries on Patroo, PW 8 as well as on the deceased were more or less of the same nature except that in the case of deceased, there were few punctured wounds which were not serious but only simple.

He died due to shock and haemorrhage the next day. In any event there is no indication anywhere in the evidence of the doctor or in the post-mortem certificate that any of the injuries was sufficient in the ordinary course of nature to cause death. No doubt in his deposition the doctor, PW 4 has stated in the general way that these injuries were sufficient to cause death in the ordinary course of nature. We have already held that there was no external injury which resulted in the fracture of the ribs. In such an event clause 3rdly of Section 300 IPC is not attracted. Likewise clause 1 stly of Section 300 IPC is also not attracted i.e. intentionally causing death. If their intention was to cause death, they would have used the lethal weapons in different way and would not have merely inflicted simple injuries on the non-vital parts like legs and hands.

6. In the result we set aside the convictions of these

eight appellants under Section 302 read with Section 149 IPC and the sentence for imprisonment for life. Instead we convict them under Section 304 Part II read with Section 149 IPC and sentence each of them to undergo rigorous imprisonment for five years. The sentences and convictions imposed on other counts are confirmed. The four other accused who were convicted by the trial court as well as by the High Court are not before us. However, we are of the view that they must also get the same benefit. They are Ram Chander (A-2), Dal Singhar (A-7), Sarai (A-8) and Birju (A-11 ). Accordingly their convictions under Section 302 read with Section 149 IPC for imprisonment for life are set aside and instead they are also convicted under Section 304 Part II read with Section 149 IPC and are sentenced to undergo rigorous imprisonment for five years. The other convictions and sentences imposed on other counts are, however, confirmed.

34. Reliance was also placed upon the judgment of this

Court in the case of State of Rajasthan v. Kalu [(1998) SCC

(Cri.) 898], where in the post mortem examination of the deceased, the cause of death was noticed as "acute peritonitis" as result of abdominal injuries. However, during the cross-examination, Dr. Prem Narayna admitted that "peritonitis" could have set in due to surgical complications also. The Court took the view that the medical evidence, therefore, when analysed 8 in. its correct perspective shows that the evidence recorded by the High Court is correct to the effect that prosecution had not proved that the injuries were sufficient in the ordinary course of nature to cause death of the lady and had acquitted the respondent. The Supreme Court declined to interfere with the finding recorded by the High Court.

35. In the present case also, there is no documentary or

oral evidence to prove the fact that the injuries caused by the respondent to the deceased were sufficient in the ordi(lary course of nature to cause death. This, however, cannot be stated as an absolute proposition of law and the .question whether the particular injury was sufficient in the ordinary course of nature to cause death or not is question of fact which will have to be determined in light of the facts, circumstances and evidence produced in given case. (Ref. Halsbury's Laws of India 5(2) Criminal Law-II).There could be cases where injuries caused upon the body of the deceased per se can irresistibly lead to the conclusion that the injuries were sufficient to cause death in the ordinary course of nature, while there may be other cases where it is required to be proved by documentary and oral evidence. Resultantly, it will always depend on the facts of each case. Thus, in such cases, it may neither be permissible nor possible to state any absolute principle of law universally applicable to all such cases.

36. In view of our discussion above, we find no error in the

judgment under appeal. Thus, we have no hesitation in dismissing the appeal and the same is hereby dismissed.

Appeal dismissed.