# DAHY ABHAI CHHAGANBHAI THAKKER v. STATE OF GUJARAT

- **Citation:** [1964] 7 S.C.R. 361
- **Court:** Supreme Court of India
- **Decided:** 1961-06-27
- **Case number:** Criminal Appeal No. 58 of 1962
- **Bench:** K. Subba Rao, K. C. Das Gupta, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dahy-abhai-chhaganbhai-thakker-v-state-of-gujarat-3128
- **Pages:** 15

## Headnote

Criminal Law-Burden of proof of guilt-Genera! and special burdens, if in conflict-Plea of insanity-Mode of proof enumerated-Questions under s. 154 of Evidence Act-When court
can permit-Indian Pena! Code, 1860 (Act 45 of 1860), ss. 80, 84,
299-Indian Evidence Act, 1872 (1 of 1872), ss. 105, 137, 154.
The appellant was charged with murdering his wife. Before
the Sessions Judge a defence was set up that the appellant was
insane when the incident took place and was not capable of
understanding the nature of his act. The Sessions Judge rejected the plea of insanity and convicted him under s. 302 of the
Indian Penal Code. On appeal the High Court confirmed the
conviction.
He!d-(i) There is no conflict between the general burden to
prove the guilt beyond reasonable doubt, which is always on the
prosecution and which never shifts, and the special burden that
rests on the accused to make out his defence of insanity.
(ii) The doctrine of burden of proof in the context of the
plea of insanity may be stated in the following propositions:
(1). The prosecution must prove beyond reasonable doubt that
the accused had committed the offence with the requisite 1TH~ns
rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a
rebuttable presumption that the accused was not insane, when
he committed the crime, in the sense laid down by s. 84 of the
Indian Penal Code: the accused may rebut it by placing before
the court all the relevant evidenc€'-{Jral, documentary or circumstantial, but the burden of proof upon him is no higher than
that which rests upon a party to civil proceedings. (3) Even if
the accused was not able to establish conclusively that he was
insane at the time he committed the offence, the evidence
placed before the court by the accused or by the prosecution may
raise a reasonable doubt in the mind of the court as regard.~
one or more of the ingredients of the offence, including mens
rea of the accused and in that case the court would be entitled
to acquit the accused on the ground that the general burden <if
proof resting on the prosecution was not discharged.
K. M. Nanavati v. State of Maharashtra, [1962) Supp, 1 S.C.R.
567, followed.
Ramhitram v. State. A.I.R. 1956 Nag. 187, disapproved .
. Kamla Singh v. State, A.I.R. 1955 Pat. 209, approved.
H. M. Advocate v. Fraser, (1878)4 Couper 70. referred to.
(iii) The court can permit a person, who calls a witness, to
put questions to him which might be put in cr<>&s-€xamination,
at any stage of the examination of the witness, provided it takes
care to give an opportunity to the accused to cross-examine him
on the answers elicited which do not find place in the examina-
,,
tion-in-chief.
1964
Marchl~
'
'·
362
SUPREME COURT REPORTS
(1964]
~
Section 137 of the Evidence Act, gives only the three stages
DaAyobliai 0111taga,.. in the examination of a witness, and it has no relevance to the
bliai TWa<
ques~10n whe~ a party calling a witness can be permitted to put
T.
to him quest10ns under s. 154 of the Evidence Act: that is
Stale of Gujaral
governed by the provisions of s. 154 of the said Act, which confers a discretionary power on the court to permit a person who
calls a witness to put any questions to him which might be put
in cross-examination by the adverse party.
Tahsildar Singh v. The State of U.P., 11959] Supp. 2 S.C.R.
875, followed.

## Text

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7 S.C.R.
SUPREME COURT REPORTS
361
DAHY ABHAI CHHAGANBHAI THAKKER
v.
STATE OF GUJARAT
[K. SUBBA RAO, K. C. DAS GUPTA AND RAGHUBAR DAYAL, JJ.J
Criminal Law-Burden of proof of guilt-Genera! and special burdens, if in conflict-Plea of insanity-Mode of proof enumerated-Questions under s. 154 of Evidence Act-When court
can permit-Indian Pena! Code, 1860 (Act 45 of 1860), ss. 80, 84,
299-Indian Evidence Act, 1872 (1 of 1872), ss. 105, 137, 154.
The appellant was charged with murdering his wife. Before
the Sessions Judge a defence was set up that the appellant was
insane when the incident took place and was not capable of
understanding the nature of his act. The Sessions Judge rejected the plea of insanity and convicted him under s. 302 of the
Indian Penal Code. On appeal the High Court confirmed the
conviction.
He!d-(i) There is no conflict between the general burden to
prove the guilt beyond reasonable doubt, which is always on the
prosecution and which never shifts, and the special burden that
rests on the accused to make out his defence of insanity.
(ii) The doctrine of burden of proof in the context of the
plea of insanity may be stated in the following propositions:
(1). The prosecution must prove beyond reasonable doubt that
the accused had committed the offence with the requisite 1TH~ns
rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a
rebuttable presumption that the accused was not insane, when
he committed the crime, in the sense laid down by s. 84 of the
Indian Penal Code: the accused may rebut it by placing before
the court all the relevant evidenc€'-{Jral, documentary or circumstantial, but the burden of proof upon him is no higher than
that which rests upon a party to civil proceedings. (3) Even if
the accused was not able to establish conclusively that he was
insane at the time he committed the offence, the evidence
placed before the court by the accused or by the prosecution may
raise a reasonable doubt in the mind of the court as regard.~
one or more of the ingredients of the offence, including mens
rea of the accused and in that case the court would be entitled
to acquit the accused on the ground that the general burden <if
proof resting on the prosecution was not discharged.
K. M. Nanavati v. State of Maharashtra, [1962) Supp, 1 S.C.R.
567, followed.
Ramhitram v. State. A.I.R. 1956 Nag. 187, disapproved .
. Kamla Singh v. State, A.I.R. 1955 Pat. 209, approved.
H. M. Advocate v. Fraser, (1878)4 Couper 70. referred to.
(iii) The court can permit a person, who calls a witness, to
put questions to him which might be put in cr<>&s-€xamination,
at any stage of the examination of the witness, provided it takes
care to give an opportunity to the accused to cross-examine him
on the answers elicited which do not find place in the examina-
,,
tion-in-chief.
1964
Marchl~
'
'·
362
SUPREME COURT REPORTS
(1964]
~
Section 137 of the Evidence Act, gives only the three stages
DaAyobliai 0111taga,.. in the examination of a witness, and it has no relevance to the
bliai TWa<
ques~10n whe~ a party calling a witness can be permitted to put
T.
to him quest10ns under s. 154 of the Evidence Act: that is
Stale of Gujaral
governed by the provisions of s. 154 of the said Act, which confers a discretionary power on the court to permit a person who
calls a witness to put any questions to him which might be put
in cross-examination by the adverse party.
Tahsildar Singh v. The State of U.P., 11959] Supp. 2 S.C.R.
875, followed.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
58 of 1962. Appeal by special leave from the judgment and
order dated June 27, 1961 of the Gujarat High Court in Criminal Appeal No. 656I1960.
B. K. Banerjee, for the appellant.
D. R. Prem, 'R. H. Dhebar and B. R. G. K. Achar, for
the respondent.
March 19, 1964. The Judgment of the Court was delivered by
SUBBA RAO, J.-This appeal raises the question of the
defence of insanity for an offence under s. 302 of the Indian
Penal Code.
The appellant was the husband of the deceased Kalavati.
She was married to the appellant in the year 1958. On the
night of April 9, 1959, as usual, the appellant and his wife
slept in their bed-room and the doors leading to that room
were bolted from inside. At about 3 or 3.30 a.m. on the next
day Kalavati cried that she was being killed. The neighbours
collected in front of the said room and called upon the accused to open the door. When the ·door was opened they
found Kalavati dead with a number of wounds on her body.
The accused was sent up for trial to the sessions on the
charge ·Of murder. Before the Additional Sessions Judge,
Kaira, a defence was set up that tf.e accused was insane
when the incident was alleged· to have taken place and was
not capable of understanding the nature of his act.
The learned Additional Sessions Judge considered the
entire evidence placed before him, and came to the conclusion that the accused had failed to satisfy him that when
he committed the murder of his wife he was not capable to
knowing the nature of the act and that what he was doing
was either wrong or contrary to law. Having rejected his plea
of insanity, the learned Additicmal Sessions Judge convicted him under s. 302 of the Indian Penal Code and sentenced
him to undergo rigorous imprisonment for life. On appeal
7 S.C.R.
SUPREME COURT REPORTS
363
the High Court agreed with that finding, though for different
~
reasons, and confirmed the conviction and sentence of the Dahyablw.i OMaga.-
accused. Hence the present appeal.
bhai Tlw.kkt•
v.
Learned counsel for the appellant contended that the State ofGujara1
High Court, having believed the evidence of the prosecution
subba Rao, J.
witnesses, should have held that the accused had discharged
the burden placed on him of proving that at the time he
killed his wife he was incapable of knowing the nature of
his act or what he was doing was either wrong or contrary
to law. He further contended that even if he had failed to
establish that fact conclusively, the evidence adduced was
such as to raise a reasonable doubt in the mind of the Judge
as regards one of the ingredients of the offence, namely, criminal intention, and, therefore, the court should have acquitted him for the reason that the prosecution had not prov·
ed the case beyond reasonable doubt.
Before we address ourselves to the facts of the case
and the findings arrived at by the High Court, it would be
convenient to notice the relevant aspects of the law of the
plea of insanity. At the outset let us consider the material
provisions without reference to decided cases. The said provisions are :
INDIAN PENAL CODE
Section 199-Whoever causes death by doing an act
with the intention of causing death, or with
the intention of causing such bodily injury as is
likely to cause death, or with the knowledge that
he is likely by such act to cause death, commits
the offence of culpable homicide.
Section 84-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.
INDIAN EVIDENCE ACT
Section 105-When a person is accused of any offence,
the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XL V of
1860) or within any special exception or proviso
contained in any other part of the same Code, or
in anv law defining the offence, is upon· him,. and
the Court shall presume the absence of such circumstances.
)
196'
~yab/UJi OMagan.
biai TW/ar
v.
SlaJe of Gujarat
Sub~a Rao, J.
364
SUPREME, COURT REPORTS
[1964]
Section 4-"Shall presume": Whenever it is directed by
this Act that the Court shall presume a fact, it shall
regard such facts as proved unless and until it is
disproved.
•
"Pnved"-A fact is said to be "proved" when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it exists.
"Disproved"-A fact is said to be disproved' when,
after considering the matters before it, the Court
either believes that it does not exist, or considers
its non-existence so probable that a prudent man
ought, under the circumstances of the particular
case. to act upon the supposition that it does not
exist.
Section IOI-Whoever desires any Court to give judg·
ment as to any legal right or liability dependent on
the existence of fact which he asserts, must prove
that those facts exist.
When a person is bound to prove the existence of any
fact, it is said that the burden of proof lies on that
person.
"
It is a fundamental principle of criminal jurisprudence that
an accused is presumed to be innocent 'and, therefore, the
burden lies on the prosecution to prove the guilt of the accused
beyond reasonable doubt. The prosecution, therefore, in a case
of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in
s., 299 of the Indian Penal Code. This general burden never
shifts and it always rests on the prosecution. But, as s. 84 of
the Indian Penal Code provides that nothing is an offence if
the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of
his act or what be was doing was either wrong or contrary
to law. This being an exception, under s. 105 of the Evidence
Act the burden of proving the existence of circumstances
bringing the case within the said exception lies on the accused;
and the court shall presume the absence of such circumstances.
Under s. 105 of the Evidence Act, read with the definition
of "shall presume" in s. 4 thereof, the court shall regard
the ;absence of such 1.:lrcumstances as prj)Ved unless,, , after
considering the ma.tters before it, it believes that said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular
case, to act upon the supposition that they did exist To put
'7 S.C.R.
SUPREl\IE COURT REPORTS
365
it
in other words, the accused will
have to rebut
1964
the presumption that such circumstanc:es did not exist, by Dahyah;;;;;oMaq ...
placing material before the court sufficient to make it conbooi T/uJU..
sider the existence of the said circumstances so probable that
v.
State of G1<jaml
a prudent man would act upon them. The accused has to
satisfy the standard of a "prudent man". If the material placed
Subba Rao, J.
before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man", the accused will have discharged his burden. The evidence so placed may not be sufficient to
discharge the burden under s. 105 of the Evidence Act, but it
may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence
itself. It may, for instance, raise a reasonable doubt in the mind
of the judge whether the accused had the requisite intention
laid down in s. 299 of the Indian Penal Code. If the judge has
·such reasonable doubt, he has to acquit the accused, for in
that event the prosecution will have failed to prove conclusively
the guilt of the accused. There is no conflict between the gene·
ral burden, which is always on the prosecution and which
never shifts, and the special burden that rests on the accused
to make out his defence of insanity.
The textbooks placed before us and the decisions cited
at the Bar lead to the same conclusion. In Halsbury's Laws of
England, 3rd edn., Vol. 10, at p. 288, it is stated thus:
"The onus of establishing insanity is on the accused.
The burden of proof upon him is no higher than
which rests upon a party to civil proceedings."
Glanville Williams in his book 'Criminal Law", The General
Part, 2nd Edn., places the relevant dspect in the correct pers·
pective thus, at p. 516:
"As stated before, to find that the accused did not know
the nature and quality of his act is, in part, only
another way of finding that he was ignorant as to
some fact constituting an ingredient of the crime;
and if the crime is one requiring intention or
recklessness he must, on the view advanced in this
book, be innocent of mens rea. Since the persuasive burden of proof of mens rea is on the prose·
cution, on question of defence, or of disease of the
mind, arises, except in so far as tpe prisoner is
called upon for his own safety to neutralise the
evidence ·of the prosecution. No persuasive burden
of proof rests on him, and if the jury are uncertain
whether the allegation of mens rea is made out
................................. the benefit of the doubt
. must be given to the prisoner, for, in 'the words
./
1964
Dahyabhai Chltaganbhai TkaJ..:l<tr
v.
State of Oiijar.1l
S11b~ Rao, J.
366
SUPREME COURT REPORTS
[1964]
of Lord Reading in another context, "the Crown
would then have failed to discharge the burden
imposed on it by our law of satisfying the jury
beyond reasonable doubt of the guilt of the prisoner."
This Court in K. M. Nanavati v. State of Maharashtra(') had
to consider the question of burden of proof in the context of
a defence based on the exception embodied in s. 80 of the
Indian Penal Code. In that context the law is summarized
thus:
"The alleged conflict between the general burden
which lies on the prosecution and the special burden imposed on the accused under s. 105 of the
Evidence Act is more imaginary than real. Indeed.
there is no conflict at all. There may arise three
different situations: (!) A statute may throw the
burden of proof of all or some of the ingredients of
an offence on the accused: (see ss. 4 and 5 of the
Prevention of Corruption Act). (2) The special burden may not touch the ingredients of the offence,
but only the protection given on the assumption
of the proof of the said ingredients: (see ss. 77, 78,
79, 81 and 88 of the· Indian Penal Code). (3) It may
relate to an exception, some of the many circumstances required to attract the exception, if proved,
affecting the proof of all or some of the ingredients
of the offence: (see s. 80 of the Indian Penal Code) .
. . . . . . . . . . . . . . . . . . . . . . . : ....... '.......... In the third case.
though the burden lies on the accused to bring his
case within the exception the facts proved may .not
discharge the said burden, but may affect the proof
of the ingredients of the offence."
!After giving an illustration, this Court proceeded to state:
"That evidence may not be sufficient to prove all the
ingredients of s. 80 of the Indian Penal Code, but
may prove that the shooting was by accident or
inadvertence, i.e., it was done without any inten-
. ti on or requisite state of mind, which is, the essence
of the offence, within the meaning of s. 300, Indian
Penal Code, or at any rate may throw a reasonable
doubt on the essential ingredients of the offence of
murder .................. In this view it might be said
that the general burden to prove the ingredients of
the offence, unless there is a specific statute to the
contrary, is always on the prosecution, but the burden to prove the circumstances coming under the
exceptions lies upon the accused."
(') [1962] Supp. 1 S:C'R. 567, 597, 598.
'1 S.C.R.
SUPREME COURT REPORTS
307
What is said of s. 80 of the Indian Penal Code will equally
~".!_
apply to s. 84 thereof. A Division Bench of the Patna High D<ihy~bhai Oh1Court in Kam/a Singh v. The State (') invoked the same princibha• Thakker
pie when the plea of insanity was raised. A Division Bench of
state :j GvJaral
tlie Nagpur High Court in Ramhitram v. State(') has struck a
different note inasmuch as it held that the benefit of doubt
Subba Rao, 1 •
which the law gives on the presumption of innocence is available only where the prosecution had not been able to connect
the accused with the occurrence and that it had nothing to do
with the mental state of the accused. With great respect, we
cannot agree with this view. If this view weie correct, the
court would be helpless and would be.legally bound to convict
an accused even though there was 'genuine and reasonable
doubt in its mind that the accused had not the requisite intention when he did the act for which he was charged. This view
is also inconsistent with that expressed in Nanavati's case('). A
Scottish case, H.M. Advocate v. Fraser('), noticed in Glanville
Williams' "Criminal Law", The General Part, 2nd Edn., at
p. 517, pinpoints the distinction between these two categories
of burden of proof. There, a man killed his baby while he was
asleep; he was dreaming that he was struggling with a wild
beast. The learned author elaborates the problem thus:
"When the Crown proved that the accused had killed
his baby what may be called an evidential presumption or presumption of fact arose that the killing
was murder. Had no evidence been adduced for
the defence the jury could have convicted of
murder, and their verdict would have been upheld
on appeal. The burden of adducing evidence of the
delusion therefore lay on the accused. Suppose
that, when all the evidence was in, the jury did
not know what to make of the matter. They might
suspect the accused to be inventing a tale to cover
his guilt, and yet not be reasonably certain about
it. In that event the accused would be entitled to
an acquittal. The prosecution must prove beyond
reasonable doubt not only the actus reus but the
mens rea."
'.The ~octrine of burden of proof in the context of the plea of
msamty ~ay be stated in the following propositions: (I) The
prosecut10n must prove beyond reasonable doubt that the accused had committed t~e offence with the requisite mens rea;
and the burde~ o~ provmg that always rests on the prosecution
from the begmmng. to the end of the trial. (2) There is a
rebuttabl7 presumpt~on t~at the accused was not insane, when
he committed the crune, m the sense laid down by s. 84 of the
I') A.I.R. 1955 Pat. 209.
I') A.I.R. 1956 Nag 187
(') [1962] Supp. 1 S.C!R. 5,67.
(') (1878) 4 Coup~r 70:
368
SUPREME COURT REPORTS
[19641
196'
Indian Penal Code: the accused may reblit it by placing beDah bit ; Oh.!aga _fore the court all the relevant evidence-oral, documentary or
If,..;" Tka~ker n circumstantial, but the burden of proof upon him is no higher
v.
than that rests upon a party to civil proceedings. (3) Even if the
81•1• of Gojara< accused was not able to establish conclusively that he was
Bub/Ja Rao, J.
insane at the time he committed the offence, the evidence
placed before the court by the accused or by the prosecution
may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including
mens rea of the accused and in that case the court would be
entitled to acquit the accused on the ground that the general
burden of proof resting on the prosecution was not discharged.
Now we come to ihe merits of the case. Ordinarily this
Court in exercise of its jurisd_iction under Art. 136 of the Constitution accepts the findings of fact arrived at by the High
Court. But, after having gone through the judgments of the
learned Additional Sessions Judge and tht" High Court, we are
satisfied that this is an exceptional case to depart from the
said practice. The learned Additional Sessions Judge rejected
the evidence of the prosecution witnesses on the ground that
their version was a subsequent development designed to help
the accused. The learned Judges of the High Court accepted
their evidence for two different reasons. Raju, .l., held that a
court can permit a party calling a witness to put questions
under s. 154 of the Evidence Act only in the examination-inchief of the witness; for this conclusion, he has given the
following two reasons: (!) the wording of ss. 137 and 154 of
the Evidence Act indicates it,-and (2) if he is permitted to put
questions in the nature of cross-examination at the stage of
re-examination by the adverse party, the adverse party will
have no chance of cross-examining the witness with reference
io the answers given to the said questions. Neither of the two
reasons, in our view, is tenable. Section 137 of the Evidence Act
gives only the three stages in the examination of a witness,
namely, examination-in-chief, cross-examination and re-examination. This is a routine sequence in the examination of a
witness. This has no relevance to the question when a party
calling ,a witness can be permitted to put to him questions
under s. 154 of ihe Evidence Act: that is governed by the provisions of s. 154 of the said Act, which confers a discretionary
power on the court to permit a person who calls a witness to
put any questions to him which might be put in cross-examination by the adverse party. Section 154 does not in terms, or
by necessary implication confine the exercise of the power by
the court before the examination-in-chief is concluded or to
any particular stage of the examination of the witness. It is
wide in scope and the discretion is entirely left to the court to
exercise the power when the circumstanc~s demand. To confine this power to the stage of examination-in-chief is to make
7 S.C.R.
SUPRE!IIE COURT HEPORTS
369
it ineffeCtive in practice. A clever witness in his examination·
1901
in-chief faithfully conforms to what he stated earlier to the Dahyah/.a;Ghfia!l""-
police or in the committing court, but in the cross-examinaMai 1'1.akk"
tion introduces statements in a subtle way contradicting in
sia•e 0/(;,,,i,,ra•.
effect what he stated in the examination·in-chief. If his design
is obvious, we do not see why the court cannot, during the
S1tbba Rao, J.
course of his cross-examination, permit the person calling him
as a witness to put questions to him which might be put in
cross.examination by the adverse party. To confine the operation of s. 154 of the Evidence Act to a particular stage in the
examination of a witness is to read words in the section which
are not there. We cannot also agree with the High Court th2t
if a party calling a witness is permitted to put such questions to
the witness after he has been cross-examined by the adverse
party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by
putting such questions. In such an event the court certainly, in
exercise of its discretion, will permit the adverse party to crossexamine the witness on the answers elicited by such questions.
The court, therefore, can permit a person, who calls a witness,
to put questions to him which might be put in the crossexamination at any stage of the examinaiion of the witness,
provided it takes care to give an opportunity to the accused to
cross-examine him on the answers elicited which do not find
place in the examination-in-chief. In the present case what
happened was .that some of the witnesses faithfully repeated
what they had stated before the police in the examination-inchief, but in the cross-examination they came out with the
story of insanity of the accused. The court, at the request of
the Advocate for the prosecution: permitted him to crossexamine the said witnesses. It is not suggested that the Advc-
•
cate appearing for the accused asked for a further opportunity
to cross-examine the witnesses and was denied of it by the
court. The procedure followed by the learned Judge does not
conflict with the express provisions of s. 154 of the Evidence
Act. Mehta, J., accepted the evidence of the witnesses on the
ground that the earlier statements .made by them before the
police did not contradict their evidence in the court as the
non-mention of the mental state of the accused in th~ earlier
statements was only an omission. This reason given by the
learned Judge is also not sound. This CQUrt in Tahsildar Singh
v., ~he Stare of U.P.(') laid down the following test for ascertammg under what circumstances an alleged omission can be
relied upon to contradict the positive evidence in ·court:
" ............... (3) though a particular statement is not
expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used
(')(1959] Supp. 2 $.C.R. 875, 903.
370
SUPREME COURT REPORTS
[1964]
1984
DahJll/Jllai Ohliagan.
bhai TAak.l:er
for contradiction, not because it is an omission
strictly so-called but because it is deemed to form
part of the recorded statement; (4) such a fiction is
v.
State of Gujarat
Sobba Rao, J,
permissible by construction only in the following
three cases: (i) when a recital is necessarily implied
from the recital or recitals found in the statement
.................. , ... ; (ii) a negative aspect of a positive
recital in a statement ........................ ; and (iii)
when the statement before the police and that before the Court cannot stand together ............... ".
Broadly stated, the position in the present case is that the witnesses in their statements before the police attributed a clear
intention to the accused to commit murder, but before the
court they stated that the accused was insane and, therefore,
he committed the murder. In the circumstances it was necessarily implied in the previous statements of the witnesses before
the police that the accused was not insane at the time he committed the murder. In this view the previous statements of the
witnesses before the police can be used to contradict their
version in the court. The judgment of the High Court, therefore, in relying upon some of the important prosecution witnesses was vitiated by the said errors of law. We would, there-
. fore, proceed to consider the entire evidence for ourselves.
When a plea of legal insanity is set up, the court has to
considet whether at the time of commission of the offence the
accused, by reason of unsoundness of mind, was incapable of
kn9wing the nature of the act or that he was doing what was
either wrong or contrary to law. The crucial point of time for
ascertaining the state of mind of the accused is the time when
the offence was committed. Whether the accused was in such
a state of mind as to be entitled to the benefit of s. 84 of the
Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime.
The first question is, what is the motive for the appellant
to kill his wife in the ghastly manner he did by inflicting 44
knife injuries on her body? Natverlal Atmaram, the father of
the deceased Kalavati, was examined as P.W. 13. He said that
about 20 days before his daughter was murdered he received a
letter from the accused asking him to take away his daughter
on the ground that he did not11ike her, that he went to Bherai
with that letter, showed it to Chhaganbhai, the father of the
accused, and had a talk with him about it; that Chhaganbhai
took that letter from him and promised to persuade the accused not to discard his wife; that, after a week he again went to
Bherai and asked the accused why he did not like the deceased
and the accused replied that he did not like her as she was not
working properly; and that thereafter he went back to his
village and sent a message through someone that.he would go
7 S.C.R.
SUPREllIE COURT REPORTS
371
to Bherai to take his daughter on Ch~itra Sudi 1. The murder
1964
took pla~ on the n}ght before C!mitra Sudi L In. the cross- Dohya1>h:i0hhai7a•·
exammation he admitted that he did not tell the pohce that he bhai Thakter "
had given the letter to the father of the accused, but he told si.u
0jG.u· al
the Sub-Inspector that he had shown the letter· to him.
~··
Chhaganlal, the father of the accused, as P.W. 7, no doubt Bubba Rao, J.
denied that Natverlal gave him the letter written by the accused, but he admitted that Natverlal came to his village 10 or 15
days before the inddent to take his daughter away. The evidence of Natverlal that he went to the village of the accused
is corroborated by the evidence of P.W. 7. It is, therefore,
likely that the accused wrote a letter to .Natverlal to take away
Kalavati and it is also likely that Natverlal gave that letter to
. P.W. 7 to persuade his son not to discard his wife. P.W.s 2 to
7 said in the cross-examination that the accused and his wife
were on cordial terms, but, as we will indicate later in our
judgment, all these witnesses turned hostile in the -sessions
court and made a sustained attempt to support the case of
insanity. That apart, their evidence does not disclose what
opportunities they had to notice the cordial relation that exist- _
ed between the ac:Cused and the deceased. Thelearned Additional Sessions Judge rightly disbelieved. their evidence; The
learned Additional Sessions Judge, who had seen Natverlal in
the witness-box, has accepted his evidence; We, having gone
through his evidence, see no reason to differ from the opinion
of the learned Additional Sessions J udge .. lt is also not denied
that though the accused _was in Ahmedabad for ten. months,
he did not take his wife with him: We accept the evidence of
Natverlal and hold that the accused did not like his wife and.
therefore, wanted his father-in-law to' take her. away to his
home and that his father-in-law promised to do so before
Chaitra Sudi 1.
·
·
-
The next question is, what was the previous history of
the mental condition of the accused? Here again, the prosecution witnesses, P.W.s. 2 to 7, deposed for the first time in the
sessions court that 4 or 5 years before the incident the accused
was getting fits of. insanity. But all these witnesses stated before the police that the accused had committed the murder of
his wife, indicating thereby that he was sane at that time. Further, their evidence is inconsistent with the facts established in
the case. During this period, it was admitted by P.W. 7, the
accused was not treated by any doctor. Prior to the incident
he was serving in Ahmedabad in Monogram Mills for about
a year and a half. Though the father of the deceased was staying in a village only a few miles away from the village of the
accused and though . the betrothal was fixed -5 years·· before
the marriage, he did not know that the accused was insane,
for if he had known that such was the mental condition of the
accused he would no! have given his daughter in marriage to
372
SUPHEME COURT HEPOHTS
•
(1964]
1964
him. It is impossible to conceive that he would not have known
JJahy®l•a' Chhan••· that th_e ~ccused was insane if he was really so, and particularly
Mai Thakker
when 1t 1s the case of the accused that 1t was not kept s~cret
v.
but was well known to many people and lo some of the wit-
·'ta1,e of Gujarat
nesses, who. came to depose for him. A month and a half prior
Suhba Rao, J.
to the incident Chhaganlal had gone to Ahmedabad for medical
treatment and during that period the accused came from
Ahmedabad to manage his father·s shop in his absence. The
fact that he was recalled from Ahmedabad was not disputed:
but, while Natverlal said that the accused was recalled ih order
to manage Chhaganlal's shop in his absence. Chhaganlal sa'd
that he was recalled because he was getting insane. The best
evidence would have been that of the relative in whose house
the accused was residing in Ahmedabad. But the relative was
not examined. Jt appears to us that the accused was serving in
Ahmedabad in Monogram Mills and he was asked to come to
the village of his father to attend to the latter's business a month
and a half before the incident, as the father was leaving for
Ahmedabad for medical treatment. Before the commencement
of the trial in the sessions court on June 27, 1959, an application
was filed on behalf of the accused, supported by an affidavit
field by the father of the accused. praying tha.t, as the accused
had become i.nsane, he should be sent for proper medical treatment and observation. In that affidavit it was not stated that the
accused was getting fits of insanity for the last 4 or 5 years and
that he had one such fit at that time. If that was a fact, one
would expect the father to allege prominently the said fact in·
his affidavit. These facts lead to a reasonable inference that the
case of the accused that he had periodical fits of insanity was
an afterthought. The general statements of witnesses, P.W.s I
to 6 that he had such fits must, therefore, necessarily be false.
We. therefore. hold that the accused had no antecedent history
of insanity.
Now coming to the date when the incident took place, P.W.
7, the father of the accused, said that the accused was insane for
2 or 3 days prior to the incident. His evidence further discloses
that he and his wife had gone to Ahmedabad on the date of
the incident and returned in the same evening. If really the
accused had a fit of insanity a day or two before the incident,
is it likely that both the parents would have left him and gone
to Ahmedabad? To get over this incongruity P.W. 7 said that
he went to Ahmedabad to see a bridegroom for his daughter
and also to get medicine for the accused. But he did not '3Y
which doctor he consulted and wherefrom he purchased the
medicines or whether in fact he bought any medicines at all.
lf the accused had a fit of insanity. is it likely that the wife
would have slept with him in the same room? We must, therefore, hold that it had not been established that 2 or 3 days before the incident the accused had a fit of insanity.
7 S.C.R.
SUPRE~IE COURT REPORTS
373
Now we come to the evidence of what happened on the
1964
night of the incident. Nobody except the accused knows what Dahyabhai Ohhagan·
happened in the bed-room. P.W.s 2 to 7 deposed that on the
Ma; Wmkkcr
10th April, 1959, corresponding to Chaitra Sudi I, between 3
Slak ;/Gujarat
and 4 a.m. they heard shouts of the deceased Kalavati to the
effect that she was being killed; that they all went to the room
Subba Raa, J.
but found it locked from inside; that when the accused was
asked to open the door, he said that he would open it only
'after the Mukhi (P.W. ]) was called; that after the Mukhi came
there, the accused opened the door and came out of the room
with a blood-stained knife in his hand; that the accused began
talking irrelevantly and was speaking "why, you killed my
mother?" "why, you burnt my father's house?"; that afterwards the accused sat down and threw dust and mud at the
person.s gathered there; and that he was also laughing without
any cause. In short, all the witnesses in one voice suggested
that the accused was under a hallucination that the deceased
had murdered his mother and burnt his father's house and,
therefore, he killed her in that state of mind without knowing.
what he was doing. But none of these witnesses had described
the condition of the accused immediately when he came out
of the room, which they did so graphically in the sessions court,
at the time when they made statements ,before the police. In
effect they stated before the police that the accused came out
of the room with a blood-stained knife in his hand and admitted that he had murdered his wife; but in the witness-box
they said that when the accused came out of the room he
was behaving like a mad man and giving imaginary reasons
for killing his wife. The statements made in the depositions are
really inconsistent with the earlier statements made before the
police and they are, therefore, contradictions within the meaning of s. 162 of the Code of Criminal Procedure. We cannot
place any reliance on the evidence of these witnesses: it is an
obvious development to help the accused.
The subsequent events leading up to the trial make it
abundantly clear that the plea of insanity was a belated afterthought and a false case. After the accused came out of the
room, he was taken to the chora and was confined in a room
in the chora. P.W. 16, the police sub-inspector, reached Bherai
at about 9.30 ;i.m. He interrogated the accused, recorded his
s1!1tement and arrested him at about 10.30 a.m. According to
him, as the accused was willing to make a confession, he was
s~n.t to the judicial magistrate. This witness described the cond1tmn of the accused when he met him thus:
"When I went in the Chara he had saluted me and he
;vas c~mple~ely sane. There was absolutely no
~1gn of msamty and he was not behaving as an
msane man. He was not abusing. He had replied to
374
SUPREME COURT REPORTS
[1964J
1964
Dahyabhai Ohhaganbhai Thakker
my questions understanding them and was giving
relevant replies. And therefore 1 had sent him to
the Magistrate for confession as he wanted to confess."
T.
Stal• of Gujarat
Suboa Rao, J.
There is no reason to disbelieve this evidence, particularly
when this is consistent with the subsequent conduct of the
accused. But P.W. 9, who attested the panchnama, Ex. 19, recording the condition of the accused"s body and his clothes,
deposed that the accused was murmuring and laughing. But
no mention of his condition was described in the panchnama.
Thereafter, the accused was sent to the Medical Officer, Mater,
for examination and treatment of his injuries. The doctor
examined the accused at 9.30 p.m. and gave his evidence as
P. W. 1 I. He proved the certificate issued by him, Ex. 23.
Nothing about the mental condition of the accused was noted
in that certificate. Not a single question was put to this witness
in the cross-examination about the mental condition of the ac-
. cused. On the same day. the accused was sent to the judicial
Magistrate, First Class, for making a confession. On the next
day he was produced before the said Magistrate, who ~sked
him the necessary questions and gave him the warning that
his confession would be used against him at the trial. The
accused was given time for reflection and was produced before
the Magistrate on April 13, 1959. On that date he refused to
make the confession. His .conduct before the Magistrate, as
recorded in Ex. 31, indicates that he was in a fit condition to
appreciate the questions put to him and finaUy to make np his
mind not to make the confe~sion which he had earlier offered
to do. During the enquiry proceedings under Ch. XVIII of the
Code of Criminal ·Procedure, no suggestion was made on behalf of the accused that he was insane. For the first time on
June 27, 1959, at the commencement of the trial in the-'l'lessions
court an application.was filed on behalf of the accused aUeging
that he was suffering from an attack of insanity. On June 29,
1959, the Sessions Judge sent the accused to the Civil Surgeon,
Khaira, for observation. On receiving his report, the learned
Sessions Judge, by his order dated July 13, 1959, found the
accused insane and incapable of making his defence. On
August 28, 1959, the court directed the accused to be sent to
the Superintendent of Mental Hospital, Barpda, for keeping
him under.observation with a direction to send his report on
or before September 18, 1959. The said Superintendent sent
his report on August 27, 1960, to the effect that the accused
was capable of understanding the proceedings of the court and
of making his defence in the court. On enquiry the court heid
that the accused could understand the proceedings of the case
and was capable of making his defence. At the commencement
of the trial, the pleader for the accused stated that the accused
could understand the proceedings. The proceedings before the
7 S.C.R.
SUPRE.ME COURT REPORTS
375
Sessions Judge only show that for a short time after the case
1964
had commenced befor.e him the accused was insane_. Rnt !hat Dal,yahliai O/lhagq.
fact would not estabhsh that the accused was havms Ills of
Mai 1'1'akker
insanity for 4 or 5 years before the incident and that at the
v.
time he killed his wife he had such a fit of insanity as to give
State of Oojarai
him the benefit of s. 84 of the Indian Penal Code.