# I96I lnlef'national Contractors Ltd v. Prasanta Kum at Sur

- **Citation:** [1961] 3 S.C.R. 583
- **Court:** Supreme Court of India
- **Decided:** 1958-02-28
- **Case number:** Criminal Appeal No. 3 of 1957
- **Bench:** A. K. Sarkar, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i96i-lnlef-national-contractors-ltd-v-prasanta-kum-at-sur-2053
- **Pages:** 10

## Headnote

Murder-Plea of unsoundness of mind-Crucial time-Acquittal
-High Court's refusal to reverse, if justifiable-Indian Penal Code,
ss. 84, 3oz.
The High Court affirmed an order of acquittal of the respondent on a charge of murder under s. 302 of the Indian Penal Code
passed by the Sessions Judge on the ground that the accused was
of unsound mind. The prosecution case was that the accused
committed the murder of his mother-in-law against whom he had
borne ill-will, by severing her head from her body while she was
asleep at dead of mght. He made" confession of the crime but
a plea of insanity was taken at the trial. · On appeal with special
leave by the State :
·
H dd, that the crucial point of time at which unsoundness of
mind should be established is the time when the crime jg actually
(1) I.L.R. [1938] 2 Cal. 337.
75
I96I
lnlef'national
Contractors Ltd.
v.
Prasanta Kum at
Sur
Kapur J.
z96z
z96I
State of
Madhya Pradesh
v.
AhmaduUah
584
SUP):tEME COURT REPORTS
[1961]
committed, the burden of proving which lies on the accused in
order to entitle him to the exemption provided under s. 84 of the
Indian Penal Code.
.
It is not. sufficient only to prove that the accused suffered
from an " epileptic type of insanity " before or after the commission of the crime.
Henry Perry, 14 Cr. Appeal Rep. 48, followed.
There was nothing on the record of the instant case to show
that at the moment when the crime was committed the accused
was incapable of knowing that what he was doing was wrong or
contrary to law and as such he was not entitled to an acquittal
under .s. 84 of the Indian Penal Code.
Refusal by the High Court to interfere with an acquittal in
the proved circumstances of the case could not be justified under
any rule as to "impelling reasons ".
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
\ppeal No; 120 of 1960.
Appeal by special leave from the judgment and
order dated February 28, 1958, of the Madhya Pradesh
High Court (Gwalior Bench), in Criminal Appeal No. 3
of 1957.
I. N. Shroff, for the appellant.
The respondent did not appear.
1961. January 25. The Judgment of the Court was
delivered by
Ayy•"lf•• J.
AYYANGAR, J.-This is an appeal by special leave
by the State of Madhya PNl.desh against the dismissal
of an appeal preferred by it to the High Court of
Madhya Pradesh (Gwalior Bench) which declined
to reverse the order of acquittal passed by the
Sessions Judge holding the respondent not guilty of
an offence under s. 302 of the Indian Penal Code.
The ground of acquittal by the Sessions Judge, which
was concurred in by the High Court was that the
respondent was of unsound mind at the time of the
commission of the crime and so was entitled to an
acquittal under s. 84 of the Indian Penal Code.
There is very little dispute about the facts or even
about the construction of s. 84 of the Code because
both the learned Sessions Judge as well as the learned
Judges of the High Court on appeal have held that
the cru~ial point of ~ime at which the unsoundness of
'
)
I
;
3 S.C.R.
SUPREME COURT REPORTS
585
mind, as defined in that section, has to be established
is when the act was committed. It is the application
of this principle to the facts established by the evidence that is the ground of complaint by the appellant-State before us.
Section 84 of the Indian Penal Code which was
invoked by ·the respondent successfully in the Courts
below runs in these terms :
"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."
It is not in dispute that the -burden of proof that the
mental condition of the accused was, at the crucial
point of time, such as is described by this section lies
on the accused who claims the benefit of this exemption (vide s. 105, Indian Evidence Act, Illustration (a)).
In orqer to appreciate the point raised for our
decision it is necessary to refer to the findings of the
Se

## Text

t
3 S.C.R.. SUPREME COURT REPORTS
583
the solicitor for the respondent called upon the appellant to execute the documents they were not bound to
do so. We are unable to accord our assent to this
proposition. The case upon which the Counsel for the
appellant relied, i.e., Ismail Bhai Rahim v. Adam
Osman (1), in our opinion has no application to the
facts and circumstances of this case. It was held in
that case that the offer made by a promisor through
a solicitor to pay a debt with interest thereon at the
date of the offer does not of itself afford a reasonable
opportunity to the. promisee of ascertaining that the
promisor is able and willing to perform his promise.
Unless there is something peculiar in the circumstances of that case that case does not lay down good
law. It is difficult to see why a tender made through
a solicitor who is for that purpose an agent, is not a
proper tender.
In our opinion the High Court rightly .held that the
respondents were entitled to a decree for specific performance and we therefore dismiss this appeal with
costs.
Appeal dismissed.
STATE OF MADHYA PRADESH
v.
AHMAD ULLAH.
(A. K. SARKAR and N. RAJAGOPALA AYYANGAR, JJ.)
Murder-Plea of unsoundness of mind-Crucial time-Acquittal
-High Court's refusal to reverse, if justifiable-Indian Penal Code,
ss. 84, 3oz.
The High Court affirmed an order of acquittal of the respondent on a charge of murder under s. 302 of the Indian Penal Code
passed by the Sessions Judge on the ground that the accused was
of unsound mind. The prosecution case was that the accused
committed the murder of his mother-in-law against whom he had
borne ill-will, by severing her head from her body while she was
asleep at dead of mght. He made" confession of the crime but
a plea of insanity was taken at the trial. · On appeal with special
leave by the State :
·
H dd, that the crucial point of time at which unsoundness of
mind should be established is the time when the crime jg actually
(1) I.L.R. [1938] 2 Cal. 337.
75
I96I
lnlef'national
Contractors Ltd.
v.
Prasanta Kum at
Sur
Kapur J.
z96z
z96I
State of
Madhya Pradesh
v.
AhmaduUah
584
SUP):tEME COURT REPORTS
[1961]
committed, the burden of proving which lies on the accused in
order to entitle him to the exemption provided under s. 84 of the
Indian Penal Code.
.
It is not. sufficient only to prove that the accused suffered
from an " epileptic type of insanity " before or after the commission of the crime.
Henry Perry, 14 Cr. Appeal Rep. 48, followed.
There was nothing on the record of the instant case to show
that at the moment when the crime was committed the accused
was incapable of knowing that what he was doing was wrong or
contrary to law and as such he was not entitled to an acquittal
under .s. 84 of the Indian Penal Code.
Refusal by the High Court to interfere with an acquittal in
the proved circumstances of the case could not be justified under
any rule as to "impelling reasons ".
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
\ppeal No; 120 of 1960.
Appeal by special leave from the judgment and
order dated February 28, 1958, of the Madhya Pradesh
High Court (Gwalior Bench), in Criminal Appeal No. 3
of 1957.
I. N. Shroff, for the appellant.
The respondent did not appear.
1961. January 25. The Judgment of the Court was
delivered by
Ayy•"lf•• J.
AYYANGAR, J.-This is an appeal by special leave
by the State of Madhya PNl.desh against the dismissal
of an appeal preferred by it to the High Court of
Madhya Pradesh (Gwalior Bench) which declined
to reverse the order of acquittal passed by the
Sessions Judge holding the respondent not guilty of
an offence under s. 302 of the Indian Penal Code.
The ground of acquittal by the Sessions Judge, which
was concurred in by the High Court was that the
respondent was of unsound mind at the time of the
commission of the crime and so was entitled to an
acquittal under s. 84 of the Indian Penal Code.
There is very little dispute about the facts or even
about the construction of s. 84 of the Code because
both the learned Sessions Judge as well as the learned
Judges of the High Court on appeal have held that
the cru~ial point of ~ime at which the unsoundness of
'
)
I
;
3 S.C.R.
SUPREME COURT REPORTS
585
mind, as defined in that section, has to be established
is when the act was committed. It is the application
of this principle to the facts established by the evidence that is the ground of complaint by the appellant-State before us.
Section 84 of the Indian Penal Code which was
invoked by ·the respondent successfully in the Courts
below runs in these terms :
"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."
It is not in dispute that the -burden of proof that the
mental condition of the accused was, at the crucial
point of time, such as is described by this section lies
on the accused who claims the benefit of this exemption (vide s. 105, Indian Evidence Act, Illustration (a)).
In orqer to appreciate the point raised for our
decision it is necessary to refer to the findings of the
Sessions Judge which were in terms approved by the
learned Judges of the High Court. Before we do so,
however, we shall narrate a few facts regarding which
there is no dispute : The deceased Bismilla was
related to the accused-respondent as the mother of
his wife Jinnat whom he had divorced. The accused
nurtured a grievance against his mother-in-law for
matters it is unnecessary to set out. Bismilla went
to bed in her own house on the night of September 28,
1954. On the morning of the next day the body of
Bismilla was found by her husband lying in a pool of
blood on the cot on which she was sleeping with the
head missing.
The First Information Report was immediately lodged by the son of the deceased. The
police were informed that the respondent had borne
ill-will towards Bismilla and thereafter the Sub-Inspector who was in-charge of the investigation sent
for the respondent. The respondent admitted having
committed the murder and stated that he had put
the head of Bismilla and the knife with which it had
been severed from the body in a cloth-bag which he
had hid in an underground cell in the furniture shop
I96l
Slat. of
Madhya Praiksh
v.
Allmadullah
Ayyangar ].
z96z
Stataof
Madhya Prad<sh
v.
Ahmadu//ah
586
SUPREME COURT REPORTS
(1961)
of his father. The respondent w11.s taken to that shop
where he took out the articles in the presence of
Panch-witnesses. He also took out a torch from the
cash-box of the shop and handed it over to the police
with the statement that the torch had been used by
him on the occasion of the murder to locate · the
deceased in the darkness. The accused further stated
the manner in which he managed to scale over the
wall of the house of the deceased, how he gained
entrance into the room, how he found her asleep on a
cot and how he severed the head from the trunk ;i.nd
carried the former away and hid it at the place from
which he took it out. The respondent was produced
before the District Magistrate before whom he made
a confessional statement reciting all the above facts.
He was thereafter committed to stand his trial before
the Court of Sessions Judge, Gwalior, for the offence
under s. 302 of the Indian Penal Code. We have only
to add that the confession which was subatantially
corroborated by other evidence was never withdrawn
though in his answers to the questions put to him by
the committing magistrate and by the Sessions Judge
under s. 342 of the Criminal Procedure Code he
professed ignorance of everything.
On behalf of the defence, in support of the plea of
unsoundness of mind three witnesses were examined,
two of them being medical men. The first witnessMahavir Singh was the District Civil Surgeon and
Superintendent of the Mental Hospital. He spoke of
having treated the accused in August 1952 as a private
patient. His deposition was to the effect that the
accused had an epileptic type of insanity, the last
time that he saw him being in August 1952, i.e., over
two years before the date of the occurrence. His
evidence therefore cannot be very material-not to
say decisive-on the question as to whether at the
moment when the offence was committed the accused
was insane as defined by s. 84 of the Code or not.
The other medical witness examined for the defence
was the Superintendent of the Mental Hospital who
had examined the accused on and after November 18,
1954, i.e., nearly two months after the occurrence. His
3 S.C.R.
SUPREME COVRT REPORTS
587
deposition also was to the effect that the accused was
suffering from epileptic insanity. The witness testiStal• of
fied, that at the first stage of the attack of a fit the Madhya Pr•tksh
v.
patient becomes spastic, that in the second stage the
patient would have convulsions of hands and feet and
Ahmaduliah
in the tertiary stage becomes unconscious and at the
1 k
k
Ayyanga1 ].
last stage the patient might do acts i e sleep-wal ing:
Obviously this was expert evidence about the nature
of the disease which the doctor stated the accused
was suffering from, and not any evidence relating to
the mental condition of .the accused at the time of
the act. The other witness who spoke about the mental condition of the accused was his father. In his
evidence he stated :
" The accused was in a •disturbed state of mind
in the evening of September 28, 1954. He had not
taken food for two days. When I went to the shop
on the morning of September 29, 1954, at 7-30 or
7-45 I found the accused was unconscious and 1hat
his hi1nds and feet were stiffened. Just then the
police came there and took away the accused."
On the basis of this evidence the learned Sessions
Judge after correct.ly statiμg t_l,i«/Ja:iy.that uz;der s. 84
of the Indian Penal Code the crucial point of time at
which unsoundness of mind should be established,
is the time when the act constituting the offence is
committed and that the burden of proving that an
accused is entitled to the benefit of this exemption is
upon him, summarised the evidence which had been
led in the case in these terms :
" The next thing therefore to consider is whether
the accused was incapable of knowing the nature "
of the act. The fact that the accused went at night to
the house of his mother-in-law, deliberately cut her
·head and brought it to his house is too obvi9us to
show that the accused was capable of knowing the
nature of the act. To put it differently, the accused
while killing Bismilla was not under the impression
that he was breaking an earthen jar. Even the
learned counsel for the defence laid no stress on this
aspect of insanity. He, however, contended that
the accused was incapable of knowing that what he
was doing was either wrong or contrary to law."
State of
Madhya P1adesh
v.
Ahmadullah
AyyangaYJ.
588
SUPREME COURT REPORTS
[1961]
The learned Judge, however, rested his decision to
acquit the accused on the following reasoning:
"There is the circumstance that soon after the
crime the accused was admitted to the mental
hospital and the Superintendent of the Hospital at
least confirms that the accused suffers from epileptic
fits. Now epilepsy is a kind of disease which may
cause insanity. This is called epileptic insanity. In
this insanity the patient commits brutal murders
without knowing what he was doing. The accnsed
who suffered from epilepsy has committed a brutal
murder. There is thus ground to believe that he
may have committed this murder in a fit of epileptic
insanity .................. These things give rise to the
inference that the accused may have committed
the crime in a fit of insanity and without knowing that what he was doing was either wrong or
contrary to law. I, therefore, find that the accused
Ahmedullah did kill Bismilla by severing her head
from the body with a knife but that by reason of
unsoundness of mind he was incapable of knowing
that what he was doing was wrong or contrary to
law anc! that he is, therefore, not guilty of the
offence of murder with which he is charged under
section 302, Indian Penal Code and I direct that the
said accused be acquitted."
The learned Judge had definitely found that the
accused knew the nature of the act he was doing, a
finding which as we shall presently point ·Out, was
concurred in by the learned Judges of the High Court.
In the face of it we find it rather difficult to sustain
the reasoning upon which the last conclusion is rested
on the facts of this case.
From this order of acquittal ·by the learned Sessions
Judge the State filed an appeal to the High Court.
The learned Judges of the High Court also correctly
appreciated the legal position that to invoke the benefit of the exemption provided by s. 84 of the Indian
Penal Code it would be necessary to establish that the
accused was, at the moment of the act, insane. The
learned Judges, on this aspect of the case, said :
"About the -mental condition immediately before
and after the crucial moment, we have the
3 S.C.R.
SUPREME COURT REPORTS
589
circumstances, the conduct of the respondent on the
morning of the 29th and his confession given on that
afternoon. By themselves they do not support the
theory of mental unsoundness necessary for Section 84, though they are explicable, consistently with
epileptic insanity. The murder itself has been committed with extraordinary cunning, and attention to
the most minute detail.. ................ It is certain the
respondent knew at that time the physical nature of
what he was doing; he did not believe that he was
breaking a pot or cutting a cabbage, but was taking
the life of a human being which he says within 16
hours, he did for vindicating his honour. In fact, the
condition at the time of the confession is one of
elation rather than of depression or a black-out
.................. The learned Sessions Judge has held
that the respondent was in a fit of epileptic insanity
on the 28th night, when he killed his mother-in-law;
it. is not clearly r~corded, but it also seems to be his
finding that this fit of epileptic insanity continued
at least till the time of his confession. This finding
is not one without any evidence to support it, or one
that can be called perverse; still, it is one that could
properly be arrived at, only if it is consistent with
the observation made on the respondent immediately after the 29th September, 1954."
They proceeded to point out that there was no observation by medical experts soon after the act to enable
an inference to be drawn as to the mental condition of
the accused just prior thereto. After detailing the arguments on either side the learned Judges concluded:
"Thus we have no evidence pointing to that kind
and degree of mental unsoundness at the time of
the act as required by section R4 of the I.P.C. ; but
on the defective material adduced, it would have
been in my opinion, an unsatisfacto!'y conclusion
either way ............ In a case like this when the
proved facts would otherwise support a conviction
for murder it was for the defence to adduce evidence
aqd it should, in principle, reap the consequence of
any omissions in this regard."
State of
Madhya Pradesh
v.
Ahmadullaii
Ayyangot ].
..
',.,·;
.
· .. · .. 590
-·-,-Fr'..-----"":' .
/' > ' .
- SUPRElllE COURT REPORTS
[1961]
~ ,\.
I
". I96'
. ' .From these obsef ations it- would -appear as if the
State of' learned Judges of the High Court were differing from
ll!adhya Pradesh the learned Sessions Judge in his conclusion as regards
v.
the application of section 84 to the facts of the present
Ahmaaullaio
case. They however, continued:
Ayyangar ].
I
··:.-·
"The Sessions Judge was satisfied that the
defence has discharged the onus of proving that at
• -the -time of •/the commission of the offence the
accused was mentally so unsound as not . to know
that the act was wrong and contrary to law. Now
-·it is for the/ State to establish in appeal that the
finding is perverse and that there are compelling
reasons why that decision should be reversed.".
and it is ori th~is ground that the learned Judges dismissed the ap ea! by the State. -
-
·
_ We find our elves wholly unable _to ccmcur with this
·_ conclusion or ith the reasoning on which it. is rested.
The learned /Judges failed to appreciate that the
error in the Ndgment of the Sessions Judge lay not
. so much in4he implicit acceptance of the testimony
. of the fathe of the accused-because he was obvi-
. ously an int ested witness, and of this the appellant.
State could
rtainly and justifiably complain-but in
proceeding on a basis wherein.inferences and probabi-
. lities_ resting on assumptions were permitted to do duty
for proved facts, which . the statute required to be
established before the exemption under the section
could be claimed; Refusal to interfere with an acquital
· in such circumstances could hardly be justified under
~ny rule- as to. "impelling reasons" for interference
even assuming the existence of such a rule. The error
: in the judgment of the High Court consisted in ignor-
,·- ing the fact that there was nothing on the record on
the basis of which it could be said that at the moment
of the act, the accused was incapable of knowing that
what he was doing was wrong or contrary to law.
In this connection we might refer to the decision of
the Court of Criminal· Appeal in England in Henry
Perry(') where also the defence was that the accused
_ had been prone to· have fits of epileptic insanity.
• During· the course· of the argument Reading, -C.J.,
observed:
(1) 't Cr. Appeal Rep. t8,
3 S.C.R.
SUPREME COURT REPORTS
591
"The crux of the whole question is whether this
'96'
man was suffering from epilepsy at the time he comf
.
d h
.
0 h
,
't
ld b
t
Stale o
m1tte
t e crime.
t erw1se I
wou
e a mos
Madhya Pradeslo
dangerous doctrine if a man could say, 'I once had
v.
an epileptic fit, and everything that happens hereAhmadullah
after must be put down to that'."
In dismissing the appeal the learned Chief Justice
Ayyangar J.
said:
" Every man is presumed to be sane and to possess
a sufficient degree of reason to be responsible for his
acts unless the contrary is proved. To establish
insanity it must be clearly proved that at the time
of committing the act the party is labouring under
such defect of reason as not to know the nature and
quality of the act which he is committing-that is,
the physical nature and quality as distinguish11d
from the moral-or, if he does know the nature and
quality of the act he is committing, that he does not
know that he is doing wrong ...... There is, however,
evidence of a medical character before the jury, and
there are statements ma.de by the prisoner himself,
that he has suffered from epileptic fits. The Court
has had further evidence, especially in the prison
records, of his having had attacks of epilepsy. But
to establish that is only one step; it must be shown
that the man was suffering from an epileptic seizure
at the time when he committed the murders; and
that has not been proved."
We consider that the situation in the present case is
very similar and the observations extracted apply
with appositeness. We consider that there was no
basis in the evidence before the Court for the finding
by the Sessions Judge that at the crucial moment
when the accused cut the throat of his mother-in-law
and severed her head, he was from unsoundness of
mind incapable of knowing that wha.t he was doing
was wrong. Even the evidence of the father does not
support such a finding. In this connection the Courts
below ha.ve failed to take into account the circumstances in which the killing was compassed. The accused
bore illwill to Bismilla and the act was committed at
dead of night when he would not be seen, the accused
76
592
SUPREME COURT REPORTS
[1961]
x96x
taking a torch with him, access to the house of the
5
1
deceased being obtained by stealth by scaling over a
Madh;:'•;.adesh wall. Then again, there was the mood of exaltation
v.
which the accused exhibited after he had put her out
Ahmadullah
of her life. It was a crime committed not in a sudden
mood of insanity but one that was preceded by careful
Ayyangar f.
planning and exhibiting cool calculation in execution
and directed against a person who was considered to
be the enemy.
]anua,.y a7.
The appeal is therefore allowed, the order of acquittal passed against the respondent set aside and in its
place will be substituted a finding that the respondent
is guilty of mQJ.'der under s. 302 of the Indian Penal
Code. In the normal course the proper punishment
for the heinous and premeditated crime committed
with inhuman brutality would have been a sentence
of dee.th. But ta.king into account the fact that the
accused ha.a been acquitted by the Sessions Judgea.n order which has been affirmed by the High Courtwe consider that the ends of justice would be met if
we sentence the accused to rigorous imprisonment for
life. It is needless to add that the State Government
will take steps to have the accused treated in a.n
asylum until he is cured of his illness, if this still
continues.
Appeal allowed.
ARDESHIR H. BHIW ANDIWALA
ti.
THE STATE OF BOMBAY.
(JAFEB IMAM, J. L. KAPUR, K. c. DAS GUPTA,
RAGHUBAR DAYAL and
N. RAJAGOPALA AYYANGAR, JJ.)
Factory-Sall Works, whether a factory-Premises, if include
open land-Manufacturing process-Conversion of sea water into
salt-Factories Act, z948 (LXIII of I948), ss. 2(k) and (m), 92.
The appellant was convicted of an offence under s. 92 of
the Factories Act, 1948, for working a salt works without obtaining a licence. The salt works extended over an area of about
250 acres. The only buildings on this land were temporary
shelters for the resident labour and for an office; at some places
there were pucca platforms for fixing the water pump wh•ll