PRATAPGIRI SHIVGIRI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Now only two points have been urged by Mr. Shah on behalf of the accused:--(1) the plea of insanity based on section 84 of the Indian Penal Code and (2) the plea of grave and sudden provocation based on exception I to section 300 of the Indian Penal Code.

(2.) On the first point Mr. Shah has urged before us that even though section 105 of the Evidence Act raises a presumption against the accused and there is a burden on him to rebut the presumption of cases where he raises the plea of the said general or special exception the said burden must be deemed to have been discharged by merely raising a probability of insanity or by a bare explanation which was merely plausible. That is in such cases according to Mr. Shahs contention a reasonable doubt would be created whether the act was done with the requisite intention or knowledge which is one of essential ingredients of the offence of murder. Now the legal impact of this provision on the question of burden of proof has been considered by the Supreme Court in the case of K. M. Nanavati v. State of Maharashtra A. I. R. 1962 S. G 605 at page 616 paragraph 18. The relevant observations areas under:--

(3.) Therefore in cases covered by categories I and 2 mentioned by the Supreme Court in Nanavatis case where the burden of proof of some ingredients of the offence itself is on the accused or where the circumstances that attract the exception do not touch any of the ingredients of the offence because of a specific statutory provision and exception is created to the general rule of burden of proof. In such cases notwithstanding the general rule of burden being on the prosecution to prove the offence the burden of proving the absence of that particular ingredient or absence of the special circumstances so as to bring his case under the exception will be on the accused. It is only in the third category of cases where the proof of some of the many circumstances required to attract the exception would have a necessary impact on the proof of the ingredient of the offence that a further question has to be considered whether the evidence though insufficient to establish the exception was sufficient to negative one or more ingredients of the offence. Section 80 was referred to as an apposite illustration for this purpose. Under section 84 however the unsoundness of mind has to be such as would make the offender incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to law. In such a case the effect of section 105 of the evidence Act is to throw the burden of proof on the accused that he had no requisite knowledge and the Court shall presume that he had the requisite knowledge. Thus the burden of proof of absence of one of the essential ingredients of the offence is cast on the accused and the case is covered under the 1st category and not under the 3rd category of cases envisaged by the Supreme Court. The provisions of section 84 are in substance the same as those laid down by the House of Lords in McNaughtons case the famous pronouncement of the law on the question of insanity in cases of murder. Even in England where there is no provision like section 105 of the Evidence Act as observed by Viscount Sankey L. C. in Woolmingtons ease (1935 A.C. 462 at page 475). In McNaughtons case the onus is definitely and exceptionally placed upon the accused to establish such a defence. This position was specially noticed in the concluding words in the above quotation of Nanavatis case which are put in italics. It is clear that the burden of proof is on the accused if the defence is one of insanity.