Maharashtra Case

MANU/MH/0666/1987
Equivalent Citation: 1987(3)BomC R570, 1987(89)BOMLR423
IN THE HIGH COURT OF BOMBAY

Confirmation case No. 20 of 1969
Decided On: 04.08.1987
Decided On: 12.08.1987
Appellants: State of Maharashtra
Vs.
Respondent: Sindhi
Hon'ble Judges/Coram:
R.A. Jahagirdar and A.D. Tated, JJ.
Case Note:
Penal Code (Act XLV of 1860), Sections 84, 302 -Criminal Procedure Code,
1973 (Act II of 1974), Sections 368, 354(3) - Distinction between legal
insanity and medical insanity- Two situations visualized by Section 84 -
Expression "that he is doing what is either wrong or contrary to law" in
Section 84 - Connotation of words 'either' and 'or' in the expression -
Accused knowing nature of act and that he was acting contrary to law but
not knowing that what he was doing was wrong - Accused whether
protected under Section 84 - Word 'wrong' in the expression - Meaning of -
State of mind of accused at time of offence how to be judged - Sentence of
death hanging over head of accused for very long period - Death sentence
whether should be quashed - Constitution of India, Articles 21, 14, 226, 32,
136.
Per Jahagirdar J: -
There is a clear distinction between legal insanity and medical insanity. If
despite the insanity, which the doctor may find in a particular person, that
person is able to recognise the nature and the quality of the act for which
he is tried or if he is capable of knowing that what he was doing was either
wrong or was contrary to law, then the benefit of Section 84 of the Indian
Penal Code would not be available to him.
Section 84 is worded in such a manner as not to give any rise to the
controversy about the nature of the mind of the accused. Section 84
visualises only two situations namely, the incapacity of the accused of
knowing the nature of the act and the incapacity of the accused to know
that what he was doing is either wrong or contrary to law. If being capable
of knowing the nature of the act, a person is capable of knowing that what
he is doing is either wrong or contrary to law, then he would not be
entitled to get the protection, of the provisions of Section 84. The use of
the words "either" and "or" in the expression "that he is doing what is
either wrong or contrary to law" in Section 84 is significant to show that
what is contemplated is the incapacity of the person to know either. A
thing done is an offence if done by a person who, at the time of doing it,
was capable of knowing the nature of the act or, after knowing the nature
of the act, was capable of knowing that what he was doing was either
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wrong or contrary to law. After knowing the nature of his act, if a person is
capable of knowing that what he is doing is contrary to law or that it is
wrong, one or the other, then he would not get the protection of Section
84.
Geron Ali v. Emperor [1940] I.L.R. 2 Cal. 329 agreed with.
Ashiruddin Ahmed v. The King (1948) 50 Cri. L.J. 255 (Cal.)::[1949] A.I.R.
Cal. 182 dissented from.
Kanbi Kurji Duba v. State [1960] A.I.R. Guj. 1 R. v. Windle (1952) 2 All.
E.R. 1 Archbold's Criminal Pleading, Evidence and Practice (42nd Edn.) p.
1195 referred to.
When it is established in a case beyond reasonable doubt that the accused
knew the nature of the act that he was killing two persons and
circumstances equally are sufficient to establish that the accused knew
that what he was doing was contrary to law then even if it is possible to
hold that the accused after knowing the nature of the act did not know that
it was wrong he cannot be excused under provisions of Section 84 of Indian
Penal Code and the conviction of the accused under Section 302 I.P.C. has
to be upheld.
If the accused does an act on account of some sort of mental disorder,
though not amounting to insanity under Section 84 of I.P.C, the death
sentence should not be awarded to him and after coming into force of the
Code of Criminal Procedure 1973, the life sentence being the rule for the
offence of murder, the accused should be sentenced to imprisonment for
life.
Gopalan Nair v. State of Kerala [1937] A.I.R. S.C. 806 followed.
Per Tated, J.
(f) The law is not primarily concerned with the question of existing
psychosis; but its concern is with the responsibility. The aim of the law and
the psychiatrist through the years has been to determine not if the patient
was mentally ill at the time of his offence but rather if his mental illness
was of such severity that he was not responsible for his act.
Article by Robert O. Jones titled "Observations on Psychiatry and the Law in
Canada", appearing in International Psychiatry Clinics - Forensic Psychiatry
& Child Psychiatry' edited by D Ewen Cameron M.D. from Albany, New York"
at pp. 85, 86, 87, 88 referred to.
(ii) It is clear from Section 84 of Indian Penal Code that by itself
unsoundness of mind is no defence, unless on account of unsoundness of
mind, the accused is fa) either incapable of knowing the nature of the act,
or (b) incapable of knowing that he is doing an act which is either wrong or
contrary to law. The crucial point of time at which unsoundness of mind has
to be proved is the time when the crime is actually committed. The word
'wrong' appearing in the second part of Section 84 necessarily means
"contrary to law". What1 is contrary to law can never be held to be not
wrong. What is wrong is not to be judged from what the accused considers

to be wrong, but it has to be judged from what a prudent man would
consider to be wrong, and what is against law must always be considered
to be wrong,
R. v. Windle (1952) 2 All. E.R. 1 agreed with.
Ashiruddin v. The King (1948) 50 Cri. L.J. 255 (Cal.): :[1949] A.I.R. Cal.
182 Kanbi Kurji Duba v. State [1960] A.I.R. Guj. 1 dissented from, (iii) The
crucial point of time for bringing the case within the provisions of Section
84 of Indian Penal Code is the time when the offence is committed by the
accused and in order to know what was the state of mind of the accused at
the time of the offence, his conduct and behaviour preceding, during and
following the crime has to be considered.
Dahyabhai C. Thakkar v. State of Gujarat [1964] A.I.R. S.C. 1563 Bhikari v.
State [1966] A.I.R. S.C. 1 Jai Lal v. Delhi Administration [1969] A.I.R. S.C.
15 referred to.
(iv) When on considering the conduct of the accused, preceding, during and
following the crime, it could not by any stretch of imagination be said that
the accused discharged the burden, however light it might be of proving the
general exception under Section 84 I.P.C. the defence of insanity under
Section 84 has to be said rightly rejected by the trial Court and the
conviction of the accused for the offence of murder under Section 302 I.P.C.
has to be affirmed.
(v) In awarding sentence the Court has to take into consideration all
aggravating and mitigating circumstances. The Court has to take into
consideration the antecedents and character of the accused, the nature and
gravity of the crime and its impact on the society. When the fact that the
accused has been for a period of about 18 years under the spectre of the
sentence of death is taken into consideration, the death sentence awarded
has to be quashed and substituted by the sentence of imprisonment for life.
Joseph Peter v. State of Goa, Daman and Div [1977] A.I.R. S.C. 1812 Javed
Ahmed Ahdulhamid Pawala v. State of Maharashtra [1983] Cr. L.J. 960
(S.C.) T.V. Vatheeswaran v. State of Tamil Nadu [1983] A.I.R. S.C. 361 Sher
Singh v. State of Punjab [1983] A.I.R. S.C. 465 referred to.
JUDGMENT
R.A. Jahagirdar, J.
1 . [After discussing evidence and minor points His Lordship proceeds] There is a
clear distinction between legal insanity and medical insanity. The medical insanity
may be of various types, kinds and degrees. To what extent the medical insanity
affects the cognitive faculties of a person will naturally depend upon the nature of
that insanity. A person may be suffering from some form of insanity recognised by
the doctors as such, but that form of insanity may not necessarily be the
unsoundness of mind contemplated by Section 84 of the I.P.C. If despite the insanity,
which the doctor may find in a particular person, that person is able to recognise the
nature and the quality of the act for which he is tried or if he is capable of knowing
that what he was doing was either wrong or was contrary to law, then the benefit of
Section 84 of the I.P.C. naturally would not be available to him. It is not every form
of insanity, loosely so called, that is recognised by law as sufficient excuse as to

come within the protection of Section 84 of the I.P.C. If, despite the state of mind of
the accused which Dr. Patkar found on the day on which he examined him and
assuming that this state of mind had set in by the day on which the incident took
place, the accused was capable of knowing the nature of his act and after the
knowing the nature of his act he was also capable of knowing that what he was doing
was either wrong or contrary to law, then naturally the accused would not get the
benefit of Section 84 of the I.P.C.
2. It is generally believed that Section 84 of the I.P.C. incorporates what are known
as McNaughten Rules. The McNaughten Rules were formulated in the year 1843 in
reply to questions by the House of Lords to the judges. Those Rules have been
accepted as laying down the law of insanity at the time of the alleged offence. The
Rules incorporated in the form of questions and answers have been reproduced in
Archbold's Criminal Pleading, Evidence and Practice (42nd Edition) on pages 1189
and 1190. It is not necessary to reproduce the same in this judgment, but they can
be summarised as follows: -
(1) Everyone is presumed sane until the contrary is proved.
(2) It is a defence to a criminal prosecution for the accused to show that he
was labouring under such a defect of reason, due to disease of the mind, as
either not to know the nature and quality of his act, and if he knows this, not
to know that he was doing wrong.
3. The word "wrong" was itself the subject of some debate in England. The question
specifically arose in R. v. Windle (1952) 2 All. E.R. 1 Lord Goddard, Chief Justice,
delivering the judgment of the Court stated that the word "wrong" necessarily meant
what was contrary to law. This judgment has been the subject of some criticism and
it has been stated that this judgment has not been followed in Australia. (See
Introduction to Criminal Law. Cross and Jones, 9th Edition, page 82). It was thought
that the effect of the decision in Windle's case would be to deprive a person, who
was unable to know that what he was doing was wrong, the benefit of McNaughten
Rules. It is, however, not necessary for me to go into the discussion based upon the
McNaughten Rules or the interpretation made by the English or Australian Courts on
the same, because, in my opinion, Section 84 of the I.P.C. is worded in such a
manner as not to give any rise to the controversy about the nature of the mind of the
accused. The following to be found in Archbold's Criminal Pleading, Evidence and
Practice (42nd Edition, page 1195), however, seems to be appropriate criticism of the
same: -
Where, it is submitted, the court in Windle's case were mistaken was in
stating baldly that "the word 'wrong' in the McNaughton Rules means
contrary to law." This opens up the argument that if by reason of disease of
the mind the defendant did not know that his act was illegal, he is entitled to
the special verdict, even though he knew that his act was regarded as
morally wrong by the bulk of mankind. It is submitted that the court cannot
have intended this result, and that the passage cited is obiter, in that so
widely it is unnecessary to the decision.
4. Section 84 of the I.P.C. is as follows: -
84. Act of a person of unsound mind.- 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.

5. It has been urged by Mr. Chitnis that Section 84 is an advance over McNaughten
Rules, inasmuch as it gives protection not only to a person who was not knowing
what he did was contrary to law but also to a person who did not know that what he
was doing was wrong. In Windle's case "wrong" was interpreted to mean "contrary to
law". If that continues to be the law in England, it is clear that Section 84 is
somewhat different because it mentions not only "what is contrary to law" but also
"what is wrong". Mr. Chitnis says that the confession of the accused, if it is accepted,
and the answers given by him in examination under Section 342 of the Code clearly
show that though the accused knew the nature of the act committed by him, he was
acting pursuant to a command which he described as "Kanoon". The accused has
thought, or has suffered from a delusion, that he was acting under the command of a
law which was higher than the law of the land. He also regarded that it was
obligatory upon him to follow the "Kanoon" which told him to kill persons. In this
connection Mr. Chitnis has relied upon the conclusions which the Board, which had
been appointed earlier in this Court, had arrived at. Those conclusions, as
summarised in the order dated July 3, 1970 of Palekar, J. and Kania, J., are as
follows: -
(1) Sindhi Dalwai alias Raman Raghav (prisoner) is of unsound mind. He is
suffering from a psychosis called chronic paranoid schizophrenia or
paraphrenia, the latter being an old term for chronic paranoid schizophrenia
plus auditory hallucinations. He is dangerous to the society and hence
certifiably insane.
(2) Sindhi knew the nature of the act, i.e. he knew that he was killing human
beings.
(3) He did know that what he did was wrong and contrary to the law of the
land but he firmly believed that what he was doing was right and in tune
with the law of 'Kanoon' whose law according to him was obligatory for him
to follow.
6 . The Board also mentioned that the accused suffered from firm and unshakable
delusions that only the law of "Kanoon" matters and the law of this world does not
apply to him. Though these conclusions were given in the context of the question
about the ability of the accused to participate in the proceedings in the High Court,
Mr. Chitnis wants to rely upon them because the concept of "Kanoon" has been noted
by all the doctors who examined the accused at different times. If from this it can be
said that, in all probability, the accused believed in the might or power of a force
called "Kanoon" about which he had auditory hallucinations, then, naturally, it must
be inferred that the accused did not know that what he was doing was wrong. He
was, at any rate, incapable of knowing that what he was doing was wrong. If this is
so, says Mr. Chitnis, then he would be clearly covered by the provisions of Section 84
of the I.P.C. The evidence shows, according to Mr. Chitnis, that the accused regarded
himself as an instrument in the hands of a higher power.
7 . Mr. Chitnis has analysed Section 84 of the I.P.C. in the manner which would
support his contention. He has stated that Section 84 contemplates three situations.
If any of the said three situations prevails, then the person charged with an offence
must be deemed to have not committed that offence. According to Mr. Chitnis,
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 (1) the nature of the act, or
(2) that he is doing what is wrong or (3) that he is doing what is contrary to law. In
the instant case, if it is accepted that the accused was obeying a law which was
higher than the law of the land and if he felt that he was under an obligation to obey

that law, naturally, it cannot be said that he knew that what he was doing was wrong.
After all, says Mr. Chitnis, a person with such delusions and infirmity of mind, as the
accused, could not be expected to examine the correctness of the choice between the
law of the land and the higher law in which the accused believed. If, therefore,
because of un-soundness of mind from which he was suffering he was incapable of
knowing that he was doing what was wrong, then obviously what he did could not be
said to be an offence by virtue of the provisions contained in Section 84 of the I.P.C.
8. This analysis of Section 84 is clearly not acceptable to me. It is not correct to say,
as Mr. Chitnis has suggested, that Section 84 contemplates three kinds of situations.
In fact, properly analysed, it can be easily seen that Section 84 visualises only two
situations. Those situations are: (1) the incapacity of the accused of knowing the
nature of the act and (2) the incapacity of the accused to know that what he is doing
is either wrong or contrary to law. The latter situation may consist of two parts, but
that does not make the situation itself two in number. In my opinion, properly
analysed, the said provision must mean that nothing is an offence which is done by a
person who, at the time of doing it, by reason of un-soundness of mind, is incapable
of knowing the nature of the act. If, however, he knows the nature of the act, then he
should be incapable of knowing that he is doing what is either wrong or contrary to
law. If, being capable of knowing the nature of the act, he is capable of knowing that
what he is doing is either wrong or contrary to law, then he would not be able to get
the protection of the provisions of Section 84. It is his incapacity, after knowing the
nature of the act, to know that what he is doing is either wrong or contrary to law,
that would place him under the umbrella of protection of Section 84. If he knew that
what he was doing was either wrong or contrary to law, then he would not be getting
the protection of Section 84. For example, if he knew that what he was doing was
contrary to law but he did not know that it was wrong, that would not be a case
contemplated by Section 84. The use of the words "either" and "or" in "that he is
doing what is either wrong or contrary to law" is significant. What is contemplated is
the incapacity of the person to know either. If he knew either, then, naturally, he
would not get the protection of Section 84. Though normally one would not venture
into redrafting a statute or a part of the statute enacted by the legislature, in the
instant case, for the purpose of easier understanding, the said section can be
expressed in different words, as suggested by Mr. Kotwal, as follows: -
Nothing is an offence which is done by a person who, at the time of doing it,
by reason of un soundness of mind, is incapable of knowing the nature of the
act or knowing the nature of the act, he is incapable of knowing that what he
is doing is either wrong or contrary to law.
9. Expressing the same in slightly modified form in positive words, it can be said that
a thing done is an offence if done by a person who, at the time of doing it, was
capable of knowing the nature of the act or, after knowing the nature of the act, was
capable of knowing that what he was doing was either wrong or contrary to law.
10. In Geron Ali v. Emperor ILR[1940] Cal. 329 Section 84, which has remained
unamended, has been, in my opinion, correctly analysed. The facts of that case
disclose that the appellant before the High Court was convicted of murder and
sentenced to transportation for life. One Khoaz Ali, regarded as a holy man in the
village of the appellant, had developed an unholy alliance with a woman, mistakenly
called Pirani. The holy man had become unpopular in the village. Finding that the
appellant-accused before the High Court was loyal to him and his mistress, the Pir
told him to take the heads of those who dissuaded the accused from coming to him.
A weapon was also said to have been provided by the Pir. It was also suggested that
the accused was made to swallow some substance. He was encouraged in his act of

eliminating the enemies of the Pir by the exhortation of the Pirani that the accused
would go to heaven if he offered a human head in sacrifice. The accused thereafter
armed himself with Dao and severed the head of one Shaz Ali and carried that head
to his house. He also cut the head of his own daughter who was three years old and
thereafter took both the heads to the Pir and his mistress, proclaiming that he had
brought presents for them. After having been detected, the accused was arrested and
was tried along with the Pir and his mistress. The learned Sessions Judge acquitted
the mistress, convicted the Pir as well as the accused before the High Court. The Pir
was sentenced to death, while the accused was sentenced to transportation for life.
The Pir himself was acquitted in his appeal. In the trial Court, the learned Judge had
told the jury that unless they were satisfied that the accused was incapable of
understanding the nature of his act by reason of his insanity at the time of the
occurrence, he would be liable for consequences of his acts. The High Court found
that this was an imperfect understanding of the provisions of Section 84. Even if the
accused was capable of understanding the nature of his act, that by itself would not
make him guilty as the learned trial Judge seemed to have told the jury. The High
Court pointed out as follows: -
Section 84 of the Indian Penal Code is quite clear on the point. It says that if
a person by reason of unsoundness of mind, is incapable of understanding
the nature of his acts at the time of the commission of the acts, then such
acts will not amount to an offence. The section, however, does not stop
there. It goes on to deal with another type of insanity which would also take
away from the criminality of an act. It says that if a person does an act and
at the time of doing the act by reason of insanity does not know that the act
is either wrong or contrary to law, then also he would be protected, even
though he knew the nature of the act.
(emphasis provided) [herein indicated in italics. -Ed.]
11. On the facts of that case, it was found by the High Court, from the conduct of the
accused, especially that his mind was disordered. He not only killed a third person
but he killed his own daughter for non-assignable reasons. Therefore, it was found
that the appellant knew the nature of the act, but he did not know that what he did
was contrary to law, nor did he know that what he was doing was wrong. It was
specifically noted in Geron Ali's case that if the accused knew that what he was doing
was contrary to law, he would not be protected, even though he did not know that
what he was doing was wrong. This, in my opinion, was the correct exposition of the
provisions contained in Section 84 of the I.P.C. If by reason of unsoundness of mind,
a person is incapable of knowing the nature of his act, then the question of
considering the other part of Section 84 does not arise at all. However, even if he
knew the nature of the act but, if by reason of unsoundness of mind, the person is
incapable of knowing that what he is doing is either wrong or what he is doing is
contrary to law, then he would get the protection of Section 84. But after knowing
the nature of his act, if he is capable of knowing that what he is doing is contrary to
law or that it is wrong - one or the other - then he could not get the protection of
Section 84.
12. The reliance placed by Mr. Chitnis on the decision in Ashiruddin Ahmed v. The
King (1948) Cri. L.J. 255 is justified from his point of view. It supports, undoubtedly,
his contention on the interpretation of Section 84. The accused in Ashiruddin
Ahmed's case dreamt of somebody in paradise commanding him to sacrifice his son
of 5 years of age. Next day morning, the accused killed his son. He thereafter went to
his uncle, but finding a Chowkidar nearby, took the uncle to a tank at some distance
and told him the whole story. From this, it was clear that he did not want to

announce what he did to everybody but wanted to tell his uncle alone separately.
However, the Division Bench of the Calcutta High Court thought that Section 84 had
three elements necessary and if any one of them was established by the accused, he
could get the benefit of the provisions. On the facts of that case, the Division Bench
noted that the accused knew the nature of the act and also knew that the act was
contrary to law, but holding that the accused did not know that the act was wrong,
held that the act of the accused did not amount to an offence. It may be noted that
the dream which the accused in that case dreamt had something to do with the faith
to which he belonged. Probably, though not stated explicitly, the Division Bench
thought that the accused believed that what he did was not wrong, because he
obeyed some command from somebody who, he thought, was in the paradise.
13. It is somewhat surprising that Roxburgh, J., who was on the Bench in Geron Ali's
case, was also on the Bench in Ashiruddin's case. What has been mentioned in
Ashiruddin's case is inconsistent with what has been laid down, with great respect,
with precision in Garon Ali's case. For reasons which have been mentioned in the
earlier judgment, it is not possible to agree with Ashiruddin's case. A view similar to
the one taken by me above is to be found in Kanbi Kurji Duba v. State AIR [1960]
Guj. 1 though some observations in the said judgment are likely to give rise to the
impression that Section 84 consists of three alternatives.
14. If a person who, by reason of unsoundness of mind, is incapable of knowing the
nature of the act, then he would be excused by virtue of the provisions contained in
Section 84 of the I.P.C. The question whether he knew that it was contrary to law or
was wrong does not arise at all. However, if a person knows the nature of the act,
but, by reason of unsoundness of mind, is incapable of knowing either what he is
doing is wrong or what he is doing is contrary to law, then he may still be benefited
by the provisions contained in Section 84. But despite the unsoundness of mind, if he
is capable of knowing that what he is doing is wrong or what he is doing is contrary
to law, then he will not be excused by virtue of the provisions contained in Section
84 of the I.P.C. Merely because a person hears a command from above, may be from
the sky or in his dream, or obeys the command of a person like the Pir in Geron Ali's
case (supra), some imaginary or real prophet and then, in pursuance of that
command, proceeds to murder people, he cannot be allowed to say that though he
knew the nature of the act and that though he knew that what he was doing was
contrary to law, he did not know that it was wrong and, therefore, he should be
excused in view of the provisions contained in Section 84 of the I.P.C. Any
interpretation of Section 84, which would uphold such claims, would spell
catastrophe to the society, especially a society like the one in this country. Apart
from this possible undesirable consequence, in my opinion, the section itself provides
for the possible exception in clear and unambiguous words. In view of this
interpretation of Section 84, which commends itself to me, it is not possible to
uphold the argument of Mr. Chitnis that the accused should not be held guilty of the
offence punishable under Section 302 of the Indian Penal Code. On the evidence,
which commended itself to the learned Additional Sessions Judge, he gave certain
findings, which findings it has not been possible for Mr. Chitnis to dislodge. It is
established beyond reasonable doubt that the accused went to the place of offence
after making preparations for meeting a situation where he could use the weapon
which he was carrying. He knew the nature of the act that he was killing two persons.
He knew that he was acting contrary to law, because fearing apprehension he ran
away from the place. He knew that what he was doing was contrary to law also
because he hid the weapon of offence in a place fairly remote from the scene of
offence. If these are the facts, naturally, even if it is possible to hold that the
accused, after knowing the nature of the act, did not know that it was wrong, he
surely did know that it was contrary to law. In this view of the matter, the accused

cannot be excused under the provisions of Section 84 of the I.P.C. The conviction of
the accused, therefore, recorded under Section 302 of the I.P.C. by the learned
Additional Sessions Judge will have to be upheld.
1 5 . The question is now of sentence. The learned Additional Sessions Judge has
found that it was a double-murder. The murders were committed in cold blood. The
sentence of death was pronounced in the year 1969 before the Code of Criminal
Procedure, 1973 had come into force. It is now well recognised, after the coming into
force of the 1973 Code, that life sentence is the rule and death sentence is the
exception.
16. Apart from this, there has been a passage of a long time after the sentence in the
Sessions Court was passed. Though passage of time itself may not always be a factor
in favour of awarding the lesser of the two sentences for the offence under Section
302 of the I.P.C., the passage of nearly 19 years in the instant case can be regarded
as a very important circumstance in favour of reducing the death sentence to life
imprisonment. One must also not forget that during the 19 years that the accused has
been in jail, he has been for a long time a schizophrenic patient. He has been under
treatment. At one time, in 1984, the Medical Board, which examined him, almost
gave up his case as a hopeless case. The Board reported that he was suffering from
incurable schizophrenia. Fortunately for him, he improved. A person who has gone
through several such travails should not be sent to gallows. Apart from this, there is
authority for the proposition that if the accused did an act on account of some sort of
mental disorder, though not amounting to insanity under Section 84 of the I.P.C., the
death sentence should not be awarded to him. (See Gopalan Nair v. State of Kerala
MANU/SC/0126/1972 : 1973CriL J583 . Considering all these facts and circumstances,
I am of the opinion that the sentence of death awarded by the learned Additional
Sessions Judge, in the instant case, ought to be set aside and the accused should be
sentenced to imprisonment for life instead.
1 7 . Before parting with this judgment, it would be useful to make certain
observations regarding the conduct of cases where accused raises a plea of mental
disorder or imbalance. Often people look towards such defences with suspicion and
an approach which is useful from the point of view of justice and in the interest of
the accused is not always adopted. Rarely, if at all, persons plead insanity for trivial
or paltry reasons. If insanity is pleaded before the trial, there is always the risk of
prolonged custody and without hope of deliverance. When a trial is held, if a plea,
such as the one available in Section 84 of the I.P.C. is taken frivolously and if
unfortunately that plea is accepted, there is always a risk of being confined to the
mental hospital for a long time, because that is what the law provides if a person is
to be acquitted on the ground that he is insane within the meaning of Section 84 of
the I.P.C. Experience has shown that often people who raise such pleas come from
the poorer or the weaker sections of the community. That, at least, is my experience.
They are always defended by advocates appointed by the State. In such cases,
enlightened approach must be adopted by the State, by the prosecutor and by the
presiding officer of the Court. People who suffer from mental disorders are wholly
free from responsibility for those mental disorders. They have never invited them
themselves. They suffer them not because they have done anything which ought not
to have been done, except in the case of alcohol and drug addicts. A mental disease
is wholly an involuntary disease brought about either by circumstances beyond the
control of the individual concerned or some organic defect in the brain. In such
cases, despite the absence of specific provision in the procedural law, it would be
advantageous if the presiding officer of a Court not only permits or actively
encourages consultation with properly qualified psychiatrists, though psychiatrists
may belong even to the Government Hospital. Unfortunately, specific provision in this

regard is not to be found either in the Criminal Procedure Code or in the Mental
Health Act of 1987, which leaves the procedural part out of its scope.
18. Distrust of psychiatry or psychiatrists in cases such as this is highly injurious not
merely to the interest of the accused but also to the cause of justice. If provisions are
there in the Criminal Procedure Code and the Indian Penal Code where the question
of the state of mind of an accused is to be decided, one naturally cannot afford to
distrust the psychiatry or the opinions of the psychiatrists. It is, of course, ultimately
the function of the Court to decide on the relevant questions after assessing the
evidence given by the experts and the reasons given by them in support of their
opinions.
19. It must be recorded with some appreciation that the accused had throughout the
benefit of competent legal assistance, being defended at all levels by leading lawyers
in the field of Criminal Law. One must also record the assistance we got from the
learned Special Public Prosecutor who has given a very good exposition of the law as
well as facts.
20. In the result, the order of conviction recorded by the learned Additional Sessions
Judge of Greater Bombay against the accused in Sessions Case No. 65 of 1969 is
confirmed. The order of death sentence is set aside and in its place the accused is
sentenced to imprisonment for life. The benefit of set-off under Section 428 of the
Code of Criminal Procedure, 1973 will naturally be made available to the accused.
A.D. Tated, J.
21. I have carefully gone through the judgment delivered by my learned brother.
2 2 . The Additional Sessions Judge, Greater Bombay, in Sessions Case No. 65 of
1969 convicted the appellant-accused of the offence of murder punishable under
Section 302 I.P.C. for causing the death of two persons, Lalchand Jagannath Yadav
and Dular Jaggi Yadav, and sentenced him to death and submitted the case to this
Court for confirmation of the death sentence, as per the provisions of Section 374 of
the Code of Criminal Procedure, 1898.
23. The reference came up for hearing before the Division Bench of this Court in the
year 1970. The learned Counsel appointed for the defence moved an application
before this Court that the appellant-accused was not able to defend himself and was
unable to give instructions to his counsel. On that application inquiry was made and
a board of three psychiatrists was appointed to report on the mental condition of the
accused and to see as to whether he was able to defend himself. After considering
the opinion of the Board of psychiatrists, this Court by order dated July 3, 1970 held
that the accused was of unsound mind and in consequence thereof was unable to
make his defence. Therefore, the proceedings in the confirmation case were
postponed and the authorities concerned were directed to submit the report about the
mental condition of the accused from time to time. The accused was being treated for
his ailment at Yeravda Prison and the reports of his mental condition were received
from time to time. The accused applied to this Court for early hearing of the
confirmation case. This Court received report from Dr. Kelkar, Superintendent,
Central Institute of Mental Health and Research, Yeravda, that the accused was in
sound mental health and he could instruct his counsel and defend himself. After
receiving report from Dr. Kelkar, this Court called further information and detailed
report from Dr. Kelkar. Dr. Kelkar accordingly submitted his report. Thereafter, in
order to test whether the accused was able to understand the proceedings in the
Court and was in a position to instruct his counsel, this Court put certain questions to
him. After considering his answers and after hearing the counsel for the defence and

the Public Prosecutor, this Court held that the accused was in a position to
understand the proceedings and could instruct his counsel in this confirmation case.
Thereafter this confirmation case was heard.
24. At the outset, Mr. S.R. Chitnis, learned Counsel for the defence, challenged the
finding of the learned trial Judge in the inquiry under Section 465 of the Code of
Criminal Procedure, 1898, and contended that in the trial Court no proper inquiry
under the said Section 465 was conducted and the learned trial Judge wrongly
believed the testimony of Dr. Christopher Adams Frankline (P.W. 1) who had
examined the appellant-accused and reached a wrong conclusion that the accused
was able to defend himself. According to the learned Counsel, the learned trial Judge
was not right in referring the accused to Dr. Frankline, Police Surgeon, Bombay, who
did not have any qualification in psychiatry and that the conclusions reached by him
on the observations of the accused were not correct. It is always open for the
accused to challenge the inquiry under the said Section 465 made by the trial Court
and in case he is able to persuade this Court that there was no proper inquiry and
that the learned trial Judge wrongly held that the accused was able to defend himself,
this Court can quash the proceedings and order fresh trial of the accused. Therefore,
it is necessary to consider the contention raised by the learned Counsel for the
defence that the inquiry under the said Section 465 made by the learned trial Judge
was not proper and he reached a wrong conclusion and thereby the defence was
prejudiced.
25. The learned Public Prosecutor produced before us excerpts from the Civil Medical
Code, Edition 1938, page 32, regarding the appointment of the Police Surgeon of
Bombay. The duties of the Police Surgeon mentioned therein are: -
(1) Medical Officer in charge of the Bombay Police Force. (G.R.J.D. No. 772,
dated January 31, 1900).
(2) Medical Officer in charge of the Northcote Police Hospital, Bombay.
(3) He will be in charge of the Lunatics sent by the Commissioner of Police
and the Presidency and Honorary Magistrates and of the sick under-trial
prisoners.
(4) Medical Adviser to the Police (including the Police of the G.I.P. and B.B.
& C.I. Railways) in medico-legal cases. (G.R.G.D. No. 1741, dated March 5,
1907).
(5) Surgeon to the Coroner of Bombay. (G.R.J.D. No. 3246, dated January
10, 1910).
(6) Inspector of Lepers. (G.R.G.D. No. 1798, dated March 7, 1914).
26. The post of the Police Surgeon of Bombay is equivalent to the post of the Civil
Surgeon in the District. At Bombay there are no posts of Civil Surgeons. In the
districts, as per the provisions of Section 464 of the Code of Criminal Procedure,
1898, the accused has to be referred to the Civil Surgeon of the district for the
opinion regarding his mental condition, and in Bombay the Police Surgeon being his
equivalent, reference has to be made to the Police Surgeon. Therefore, it cannot be
said that the learned trial Judge was not right in calling report from the Police
Surgeon, Bombay, on the mental condition of the appellant-accused.
27. Dr. Frankline (P.W. 1) was cross-examined regarding his competency to opine
about the mental condition of the appellant-accused. At paragraph 30 of the

deposition he states thus: -
30. I was in Medical College, Nagpur, for 10 years as Lecturer in Forensic
Medicine-and for three years as a Reader in Forensic Medicine, at
Aurangabad, before coining to Bombay. I am M.B.B.S. of Nagpur University
and M.D., Forensic Medicine, of Luck-now University. At present I am the
Reader and Head of the department in Grant Medical College of Forensic
Medicine. In Grant Medical College there was also a Professor of Psychiatry. I
do not remember his name. Dr. Vaitiya is the Honorary Psychiatrist assisting
me. Dr. Vaidya deals with the mental cases that come to me for treatment. I
read Davidson and Sevill, the book of about 60 to 70 pages, but I consider
them sufficient. In Nagpur University or even other Universities there is no
separate paper on psychiatry set for students. It is a part of general
medicine. There is no paper, but questions are asked on Forensic Psychiatry
and the cases are given for practical examination for M.D. at Lucknow. I am
not a psychiatrist, but I have made a special study of the science of
psychiatry. I have also specialised in it when I obtained M.D. degree in
Forensic Science.
28. Dr. Frankline is an authority under the Indian Lunacy Act, 1912, and he has to
certify as to whether the person sent to him is a 'lunatic' within the provisions of the
said Act. Thus he has a long experience of examining criminal lunatics. He is also
assisted at Northcote Police Hospital, Bombay, by a psychiatrist. Dr. Vaidya. He
observed the accused for about three weeks and his notes are at Ex. 9. On going
through the notes of observation maintained by Dr. Frankline, I find that he had
established a good rapport with the accused and could elicit a lot of information from
him so as to form correct opinion regarding his mental condition. On the basis of his
observations at Ex. 9 he reached the following conclusions about the mental
condition of the accused: -
He is not suffering from any psychosis.
He is not mentally retarded.
His memory is sound.
He possesses average intelligence.
He has sufficient intelligence to understand the nature and object of
proceeding against him. He has faced several court proceedings in the past.
He is aware of his own position in respect of the proceedings and has
sufficient mind to conduct his proper defence in a rational and reasonable
manner,
He has stated to us that he is aware of the nature and purpose of his acts
which are the basis of the present proceedings against him.
He is not certifiably insane.
He will be able to stand his trial.
29. The conclusion arrived at by Dr. Frankline on observing the accused for about
three weeks that he was able to understand the proceedings and could defend himself
is fully borne out by the examination of the accused under Section 342 of the Code of
Criminal Procedure, 1898. The reading of the answers given by the accused to the
questions put to him by the learned trial Judge indicates that the accused had

properly and fully understood the evidence recorded against him in his presence
during the trial. His answers to the questions are very intelligent. I do not want to
burden the record by reproducing all those questions and answers. A cursory look at
those questions and answers clearly indicates that the accused had fully understood
the proceedings in the trial Court and he gave rational answers to the questions put
to him, though at times according to his garrulous nature he said something more
but concerning the topic on which the question was put to him. Therefore. I find that
the learned trial Judge was right in finding that the accused was in a position to
defend himself and there is no defect in the inquiry conducted by him under Section
465 of the Code of Criminal Procedure, 1898. Dr Frankline was fully competent and
had the requisite experience to give opinion on the subject referred to him.
Consequently, the contention raised by the learned Counsel for the appellant-accused
that the accused was not in a position to understand the proceedings in the trial
Court and the learned trial Judge was not right in conducting the trial has to be
rejected.
30. The charge against the appellant-accused was that on the night between 25th
and 26th August 1968 he committed the murders of two persons Lalchand Jagannath
Yadav and Dular Jaggi Yadav at the stables of Dr. Mandlik at the Bombay Suburbs of
Malad, The defence was that the accused was of unsound mind and was not in a
position to understand the nature of his act and as such was covered by the general
exception contained in Section 84 I.P.C.
3 1 . The prosecution, in order to prove the charge levelled against the appellant-
accused, examined as many as 32 witnesses. The accused examined himself and also
Dr. Anant Pundlik Patkar (D.W. 2) in support of his defence of insanity under Section
84 I.P.C. The burden is always on the prosecution to prove the charge levelled
against the accused beyond reasonable doubt. For proving the charge of murder the
prosecution must prove actus reus and mens rea. The burden of proving legal
insanity under Section 84 I.P.C. is on the accused, but that burden is not as high as
the one on the prosecution to prove the charge levelled against the accused. In every
case it is not necessary for the accused to adduce evidence to prove the defence of
insanity. By referring to the evidence adduced by the prosecution he can show that
there is a preponderance of probability in favour of the defence of insanity put
forward by him. The accused may also adduce evidence in support of his defence and
the Court has to consider all the evidence adduced by both the parties for finding out
whether the prosecution has proved the charge levelled against the accused and also
for finding out whether there is a preponderance of probability in favour of the
defence set up by the accused. As the burden is on the prosecution to prove the
charge levelled against the accused, with all the ingredients of the offence, it is
necessary first to see whether the prosecution has been able to establish the charge
levelled against the accused. We are required to consider this because the learned
Counsel for the defence has challenged the conviction of the accused on merits also.
According to the prosecution, the accused wanted to commit theft at the office of the
stables of Dr. Mandlik. At that office always some amount was kept in the cupboard
and the accused, being aware thereof, wanted to commit theft at the office of Dr.
Mandlik's stables. The accused, in order to remove any obstruction that might be
there in committing the theft, always got prepared for committing murders of the
persons who were likely to come in the way of committing theft. With the motive to
commit the theft at the office of the stables and for removing obstruction, if any, the
accused got prepared the weapon (Article A). The motive of the accused to enter the
stables to commit theft is fully established on the evidence on record and the accused
himself has admitted in his deposition and also in his interview before Dr. Frankline
(P.W. 1) and Dr. Patkar (D.W. 2) that he committed murders for the sake of money.
Thus the prosecution has proved the motive for the accused to commit the offence.

32. Secondly, the prosecution led evidence to prove that the appellant-accused made
preparation for committing the crime. The accused had been to the house of his
friend Michael George D'Souza (P.W. 6) on August 13, 1968. He told Michael that he
had no house, but he had managed to get some land beyond Chinchvali Gate and he
wanted to build a room there. He requested Michael to lend him a crowbar for
digging purposes. Michael gave him an iron bar of the length of about three or three
and a half feet. It was octagonal in shape. The accused in his examination under
Section 342 of the Code of Criminal Procedure, 1898, admits that he obtained the
iron bar from Michael, but he denies that he gave out to Michael that he wanted the
iron bar for digging at the site where he wanted to construct a house. After obtaining
the iron bar from Michael the accused went to Lalchand Ramanand Vishwakarma
(P.W. 5), a blacksmith. Lalchand Vishwakarma states that as per the instructions of
the accused he prepared the weapon (Article A) and he received Rs. 10/- as wages
from the accused. While preparing the instrument he had to cut some portion of the
iron bar, and that remaining portion of the iron bar he had produced before the
police later on. When this question was put to the accused under the said Section
342, he admitted that he approached the said Lalchand with the bar he had obtained
from the said Michael and got the weapon (Article A) prepared and paid him his
charges amounting to Rs. 10/-. The evidence on record, which I shall be soon
adverting to, shows that this very instrument was used by the accused for giving
blows on the heads of Lalchand and Dular and in causing their death. The accused
also admits in his examination under the said Section 342 that the weapon (Article 1)
was used by him for giving blows on the heads of the two deceased persons. Thus
the accused had made preparation for committing the crime.
33. Thirdly, the prosecution proves that the appellant-accused selected the time after
midnight for committing the crime. By midnight all the activities in the stables had
stopped and the people had gone to sleep. At that time he stealthily from the south
went into the stables and for that purpose he had to wade through the nullah full of
mud and dung. He had never expected that there would be some persons on the way
to the office room, but while he was proceeding towards the office room to commit
the theft he found the two deceased persons sleeping on a cot in a hut. As they were
on the way and the accused feared that they might wake up and catch him while
committing the theft, he wanted to get rid of them and, therefore, he entered into the
hut and gave forcible blows on the heads of the deceased persons. The forcible blows
had the expected results and both of them died on the spot. There is evidence that
after committing the murders of those two persons the accused tried to remove
whatever he could find from that hut. He searched the pockets of the shirts of the
deceased persons and he found 7 Paise in one of the pockets. He took them. He
found one gamcha (towel or a big napkin) (Article D). He also took that gamcha with
him. While he was handling a steel box, it fell down causing noise. On hearing the
noise the watchman Babu Bapu Shinde (P.W. 3) and his son Ramesh (P.W. 4) rushed
towards the hut. The accused, sensing that some persons were approaching the hut,
came out of the hut and started running, and at that time the said Babu and the said
Ramesh could see him. Babu had a torch and in the torchlight Babu and Ramesh
could sea his face. The accused managed to run away from the spot after giving fatal
blows and causing death of the two persons.
3 4 . Fourthly, the prosecution relies on the subsequent conduct of the appellant-
accused. After committing the crime, hearing the sound of some persons outside who
were approaching the hut, the accused, with the weapon and other articles which he
could collect there, ran away and he concealed the weapon (Article A) and the
gamcha (Article D) and other articles in a secluded -place. The weapon and the
gamcha were discovered on the information given by the accused after he was
arrested. The weapon was sent to the chemical analyser and it was found that there

were blood stains of 'A' and 'B' Groups to which the blood of the deceased belonged.
35. The appellant-accused was arrested by P.S.I. Alex Sabastian Fialho (P.W. 9) on
August 27, 1968 at about 8 a.m. P.S.I. Fialho found a blue bush shirt and a pair of
khaki trousers on the person of the accused stained with blood. The clothes from the
person of the accused were seized and they were sent to the chemical analyser. On
those clothes also blood stains of 'A' and 'B' Groups, to which Groups the blood of
the deceased belonged, were found. After his arrest the accused was sent to Dr.
Jawaharlal Motilal Doshi (P.W. 31). He examined the person of the accused on
August 27, 1968. He did not find any injury on the person of the accused.
36. The prosecution also relies on the evidence of the watchman Babu (P.W. 3) and
his son Ramesh (P.W. 4). Babu is employed as watchman at the stables and Ramesh
assisted him in his duties. On that night at about 12.30 Babu had asked Ramesh to
go and see whether the buffalo had delivered, and, therefore, he had gone to the
stable near the hut where the deceased were sleeping. At that time he had noticed
that there was some person in the nearby grass, but he could not see him properly.
On returning to his father Babu, he informed him that he had seen movement of
some person in the grass. Babu and Ramesh had been to that site to see whether
there was any person, but they could not see anyone. Later on, when they heard the
sound of falling of an utensil from the hut occupied by the deceased, they went
towards that hut and when they flashed the torchlight they found the accused getting
out of the hut. In the torchlight they could very well see the face of the appellant-
accused. The accused made good his escape by running away from the place. Both
Babu and Ramesh have been cross-examined at great length, but there is nothing to
discredit their testimony. Both Babu and Ramesh later on identified the accused in
the identification parade conducted by Dr. Harilal Hansraj Shah (P.W. 15) on August
29, 1968. Therefore, the learned trial Judge was perfectly right in relying on the
testimony of Babu and Ramesh that they saw the accused coming out of the hut of
the deceased and running away. Soon after the accused ran away, both these persons
entered into the hut and found Lalchand and Dular lying with fatal injuries on the
heads. Autopsy of the dead bodies was held by Dr. Franklins (P.W. 1) on August 26,
1968. The post-mortem notes recorded by him are at Exs. 30 and 31. He has
described the injuries found on the two dead persons. On the dead body of Lalchand,
Dr. Frankline found the following external injuries: -
(1) Lacerated wound on outer half of left eyebrow, 1" X 1\4 Bone fractured
beneath.
(2) Abraded bruise on cheek below one angle of left eye, 1/2" x 1/4".
(3) Abrasions on left cheek beside the nose, vertically placed, 1/2" linear.
(4) Abrasions (two) on left cheek, obliquely placed, almost parallel, 1/4"
apart, 1/4" x 1/2" long, left ends sprouting towards angle of lower jaw,
upper one to angle of left eye, upper jaw dislocated and nosal bones
fractured.
37. All those injuries were ante mortem. He found the following internal injuries on
the dead body of Lalchand: -
(1) Orbital plate of left frontal bone.
(2) Base of skull in middle running across the temporal bones.
38. There was subarachnoid haemorrhage all over. Self frontal brain was lacerated.

All these injuries were ante mortem. He opined that the injury No. 1 was necessarily
fatal. According to him, the injuries Nos. 1 and 2, subarachnoid haemorrhage and
laceration of the frontal brain could be caused by a weapon like Article 'A'.
On the dead body of Dular, Dr. Frankline found the following external injuries : -
(1) Lacerated punctured wound opposite left ear in region of talus, 1/ 1/2" X
1/4" x 3" deep (from outside inside toward centre of head).
(2) Contused lacerated wound on left side in between eye and ear, irregular,
triangular almost in shape, 15/8" each limb, with hole in middle.
(3) Contused punctured lacerated wound, square in shape, each limb 3/4" X
3" deep towards centre of head on left side front of ear.
(4) Abrasion below injury No. 3, two in number, 1/2" linear.
(5) Abrasion on left cheek, ten in number, almost horizontally placed, from
1/4" to 1/2" long linear.
3 9 . All those injuries were ante mortem. He found the following corresponding
internal injuries: -
Upper jaw dislocated.
Lower jaw fractured between right 2nd incision and right canine.
Left half of middle cranial fossa fractured into bits.
Brain bruised and lacerated under surface opposite fracture in base of skull.
40. There was subarachnoid haemorrhage on the surface of the brain. He opined that
the deceased died of the brain injury following the skull fracture with the blow of
hard and blunt object. He also opined that those injuries could be caused by Article
A. According to him, dislocation of the upper jaw, fracture of the lower jaw and
laceration of the brain, taken individually, are necessarily fatal and that the person
suffering from those injuries must have died immediately.
41. The prosecution evidence referred to by me clearly establishes that Lalchand and
Dular, on the night between August 25 and 26, 1968, met with homicidal death and it
was the appellant-accused and none else who caused the injuries found on their
persons and thereby caused the death of both of them. As stated earlier, the
prosecution has proved that there was motive on the part of the accused to commit
the crime. The accused had made preparation for committing the crime and got the
weapon (Article 1) prepared. He selected the time after midnight for committing the
crime. He gave a number of blows on the heads of the deceased while they were
asleep. Both the injured succumbed to the injuries sustained by them with the blows
the accused gave on their heads. The accused after committing the crime ran away
from the place. He concealed the weapon and the gamcha of the deceased in a
secluded place. The evidence led by the prosecution regarding the discovery of the
weapon and other articles on the information of the accused has been rightly believed
by the trial Court and there is no infirmity in the evidence. On considering all those
circumstances, it must be held that the accused and none else committed the crime.
The conduct of the accused before the commission of the crime, during the crime and
following the crime clearly indicates that he was fully knowing the nature of his act
and he did intend to cause the death of those two persons, as they were on the way
to the place where he was going to commit theft. His subsequent conduct in running

away from the place and concealing the weapon clearly indicates that he knew that
what he did was contrary to law and in order to avoid detection he ran away from the
spot and concealed the blood-stained weapon. Therefore, it must be held that the
prosecution proved both actus reus and mens rea on the part of the accused for
proving the charge of murder of two persons levelled against him.
4 2 . It takes me to the defence of insanity raised by the appellant-accused. The
defence examined Dr. Patkar (D.W. 2) to substantiate the defence of insanity set up
by him. Dr. Patkar is a well qualified psychiatrist. He is M.B.B.S. of the University of
Bombay and a holder of a Diploma in Psychological Medicines of England. At the time
of his deposition he was Honorary Assistant Psychiatrist attached to the Nair Hospital,
Bombay, and Assistant Professor of Psychiatrist in Children's Hospital. As a professor
he delivered lectures to the persons graduating for M.B.B.S. and for M.D.
Psychiatrists. In 1957 he was House Physician in Psychiatry in K.E.M. Hospital,
Bombay. At that time he was Acting Registrar at K.E.M. Hospital. He was Senior
House Officer, Carlton Hayel Hospital, England. He was Registrar at three County
Hospitals in England. All this was in psychiatry. He was also on the specialist
committee as a Consulting Psychiatrist in England. He is practising as a Consulting
Psychiatrist in Bombay since 1.961, He was supplied with the confession and the
statement of the accused. He was also supplied with the notes made by Dr. Frankline
(P.W. 1) as well as the evidence he gave in the trial Court before he went to have the
interview of the accused. He interviewed the accused on August 5, 1969 between
1.40 p.m. and 3 p.m. Dr. Frankline and Dr. Vaidya were present with him. He states
that he could not follow Hindustani of the accused completely. The interview was
conducted by him at Arthur Road Prison. He found the accused co-operative
throughout the interview, appeared neat and tidy and sat at one place throughout the
interview. He talked very fast, with pressure of ideas, and was over eager to supply
information about himself and the surrounding world. Dr. Patkar put about ten
questions to the accused, and from the answers the accused gave to those questions
he reached the conclusion that the accused suffered from chronic paranoic
schizophrenia or paraphrenia for a fairly long time. According to him, the onset of the
disease might have been about two years before his examination. He maintained the
notes of his interview with the accused. Those notes are at Ex. 83. They set out the
questions put by the doctor and the answers given by the accused. The ten questions
which Dr. Patkar put to the accused are: -
1. What is your name?
2. What is Kanoon?
3. Did you murder all these people you are charged with?
4. Can you explain in more detail what you mean by that?
5. Will you like to finish the account?
6. But you slept with a dead women according to your own statement.
7. Did she become alive?
8 . Did you know when you were using your ankda that you are killing
somebody?
9. Is it wrong to murder somebody?
10. Do you know what happens to murderers who are convicted of murder?

43. The answers given to these questions are at Ex. 83. Dr. Patkar was subjected to
lengthy cross-examination in order to show that the conclusions arrived at by him by
interviewing the accused for about one and a half hour were not correct. The
evidence of an expert should be approached with considerable care and caution. In
the case of an expert one should see whether there exists a tendency to support the
party which employs him so that it is difficult to get from him an independent
opinion. Phipson on Evidence by John Huxley Buzzard, Richard May and M.N.
Howard, Thirteenth Edition, at pages 565-6 records:
The truth is that the adversarial nature of the English trial brings with it
certain, disadvantages as well as advantages. There is an observable
phenomenon even of independent and honest witnesses of fact unconsciously
tailoring their evidence to support their own 'side', that is the party for whom
they are called. This is even more true of expert witnesses, many of whom
are frequently employed in that capacity.
44. The great thinker Richard Cecil in The New Dictionary of Thoughts, A cyclopedia
of Quotations from the best authors of the world, both ancient and modern, originally
compiled by Tryon Edwards, D.D., and revised and enlarged by C.N. Catrevas, A.B.,
Jonathan Edwards, A.M., and Ralph Emerson Browns, A.M., at page 408 says: -
A perfectly just and sound mind is a rare and invaluable gift. But it is still
more unusual to see such a mind unbiased in all its actings. God has given
this soundness of mind but to few; and a very small number of these few
escape the bias of some predilection perhaps habitually operating; and none
are at all times perfectly free. An exquisite watch went irregularly, though no
defect could be discovered in it. At last it was found that the balance wheel
had been near a magnet and here was all the mischief. If the soundest mind
be magnetized by any predilection, it must act irregularly.
45. In the compilation "International Psychiatry Clinics - Forensic Psychiatry & Child
Psychiatry edited by D. Ewen Cameron M.D. from Albany, New York" there is an
article titled "Observations on Psychiatry and the Law in Canada" by Robert O. Jones.
He has considered the position of a doctor vis-a-vis a lawyer. At page 85 he states
thus: -
This attitude is often exceedingly difficult for the doctor to understand. In
fact, he is apt to regard it as barbaric and feel that the lawyer should search
for the whole truth of the situation and use this understanding as the basis
for his handling of the defendant. Here again, I believe there is a
fundamental difference between the doctor and the lawyer. The lawyer is
indeed anxious to know everything about the accused and the circumstances
of the crime. This is not for the purpose of devising an appropriate
punishment which the doctor would call 'therapy', but rather to ensure that
everything is said for or against the accused, so that if he is found guilty his
punishment may be determined not by his need but by what the law says is
appropriate for the specific crime,. Thus, the lawyer will believe that every
man who comes to trial (and if I am ever arrested, I certainly want my
lawyer to believe this) has the right to the utilization of every fragment of the
law to provide the best possible defence for him. Such a defence involves not
only the question of guilt but also the mitigating circumstances, the degree
of responsibility, and so on. The severity of the sentence will depend upon
such questions. The psychiatrist is called then, not as we fondly believe to
help determine the truth of the situation but to supply every fact that will
favour the viewpoint of one of the lawyers. In the true 'joust' situation, the

other lawyer will of necessity do his best to secure the facts on the other side
and, if it seems advantageous, present another expert who may well be more
adept at discovering the facts wanted by this particular lawyer.
At page 86 he continues: -
Zilboorg (11) has made some interesting comments on the difference
between the psychology of the doctor and that of the lawyer. He points out
that the lawyer's training is case-centered, while the doctor's training is
patient-centered. The lawyer cannot be expected to put himself in his client's
position or to experience the same behaviour for which the client is being
tried. The doctor, on the other hand, deals with the people-whom he has
been taught to see, and feel for and with, and he knows that he may well
find himself with exactly the same illness as his patient.
At page 87 he further continues: -
Lawyers are not always tough, demanding vengeance; psychiatrists are not
always merciful with the feeling that everyone should be treated and no one
should be punished. There are hanging judges, and there are hanging
psychiatrists. On a number of occasions, psychiatrists who devoted a good
deal of their professional life to the examination of criminals, and who
usually appeared for the prosecution in any such trials that happen in a
particular geographical area, frequently seemed to have lost their 'therapeutic
orientation' and have had it replaced by a 'punishment orientation'.
A number of suggestions were put before the commission that, following the
actual establishment of guilt or non-guilt by the jury, the question of the
disposal of the prisoner should be turned over to the judge and a panel of
experts, or solely to the panel, usually composed of psychiatrists. I would
hesitate to leave my fate, were I found guilty of murder, in the hands of
some of my professional brethren who have spent 30 years testifying as
crown witnesses. Experts can be exceedingly biased. I would believe that
justice is more likely to result from the deliberation of 12 good men and
true, who, though ignorant, are able to sympathize with the man on the
dock, than from the deliberations of many of the individuals who would form
the majority of a panel of experts.
At page 88 he continues: -
The question of fitness to stand trial has never been clearly defined, but
certainly a man who is clinically psychotic may well stand trial. In broad
terms, the criteria here are whether or not the accused can understand the
proceedings of the trial and can instruct counsel. An extremely psychotic
paranoid, for example, may well understand everything that is going on,
indeed may be very alert and may well be able to instruct his counsel; and
despite the fact that he is psychotic, he can certainly stand trial. The same
paranoid who may have obvious delusions regarding his wife's fidelity may
shoot a teller in the course of a bank robbery; and in this case his psychosis
is no defence. The law is not primarily concerned with the question of
existing psychosis. Indeed, known psychotics have been sentenced and have
been hanged. The law's concern is with responsibility - Does the patient
suffer from mental disease which is so severe that he ought not to be held
responsible for his act? Thus, the aim, of the law and the psychiatrist
through the years has been to determine not if the patient was mentally ill at
the time of his offence but rather if his mental illness was of such severity

that he was not responsible for his act.
4 6 . I am in respectful agreement with the views of Robert O. Jones reproduced
above.
4 7 . The Supreme Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat
MANU/SC/0068/1964 : 1964CriL J472 considered the defence of insanity under
Section 84 I.P.C. At pages 1569-70 of the report their Lordships of the Supreme
Court laid down the law thus: -
When a plea of legal insanity is set up, the Court has to consider whether at
the time of commission of the offence the accused, by reason of
unsoundness of mind, was incapable of knowing 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 Section 84 of the Indian Penal Code can only
be established from the circumstances which preceded, attended and
followed the crime.
48. Their Lordships of the Supreme Court have also considered the plea of insanity
under Section 84 I.P.C. in the case of Bhikari v. The State of U.P.
MANU/SC/0073/1965 : 1966CriL J63 of the report their lordships laid down the law
thus: -
There is no doubt that the burden of proving an offence is always on the
prosecution and that it never shifts. It would, therefore, be correct to say
that intention, when it is an essential ingredient of an offence, has also to be
established by the prosecution. But the state of mind of a person can
ordinarily only be inferred from circumstances. Thus if a person deliberately
strikes another with a deadly weapon, which according to the common
experience of man-kind is likely to cause an injury and sometimes even a
fatal injury depending upon the quality of the weapon and the part of the
body on which it is struck, it would be reasonable to infer that what the
accused did was accompanied by the intention to cause a kind of injury
which in fact resulted from the act. In such a case the prosecution must be
deemed to have discharged the burden which rested upon it to establish an
essential ingredient of the offence, namely the intention of the accused
inflicting a blow with a deadly weapon. Section 84 of the Indian Penal Code
can no doubt be invoked by a person for nullifying the evidence adduced by
the prosecution by establishing that he was at the relevant time incapable of
knowing the nature of the act or that what he was doing was either wrong or
contrary to law. Now it is not for the prosecution to establish that a person
who strikes another with a deadly weapon was incapable of knowing the
nature of the act or of knowing that what he was doing was either wrong or
contrary to law, Every one is presumed to know the natural consequences of
his act. Similarly every one is also presumed to know the law. These are not
facts which the prosecution has to establish. It is for this reason that Section
105 of the Evidence Act places upon the accused person the burden of
proving the exception upon which he relies.
4 9 . The Supreme Court in Jai Lal v. Delhi Administration MANU/SC/0353/1968 :
1969CriL J259 considered the plea of insanity under Section 84 I.P.C. In that case one
Dhani Ram was the father of Leela. Dhani Ram, his wife Somawati, his daughter
Leela and his brother Baburam lived together in the same house. Indira was the

appellant's sister. The appellant and his father suspected that Baburam was prone to
making illicit approaches to Indira. On this account, the appellant had a long
standing grudge against Baburam. This enmity is said to be the motive of the attack
by the appellant on Leela, a member of the family of Baburam. The motive for the
attack on Parbati is not clear. Raghubir was attacked because he tried to intervene.
The defence plea was of insanity. Since 1958 the appellant was art employee in the
Stores Branch of the Northern Railway Headquarters in Baroda House, New Delhi. In
1958 and 1959 he had altercations with other clerks in the office. On May 20, 1959
his superior officer observed that he was prone to lose temper in no time. In his
moments of excitement he became dangerous and used to hit his colleagues with any
thing that he could lay his hands on. But at the time of his greatest excitement he
could distinguish between right and wrong. After May 1959 he worked at his desk as
a normal man. In March 1960 he again quarrelled with another clerk. He was
suspended and sent for medical examination At this stage he was suffering from
mental illness. On October 12, 1960 he was examined by a psychiatrist who found
that he exhibited symptoms of acute schizophrenia and showed disorder of thought,
emotion and perception of external realities. The psychiatrist said that he was
harbouring certain delusions. The nature of the delusions is not stated. It is not
proved that the appellant suffered from any particular delusion or hallucination. The
appellant was put on a drug named Largactil and was given convulsive electro-
therapy treatment. On January 12, 1961 he was cured of his illness and was advised
to join his duties. On resuming his duties the appellant worked in the office in the
normal manner. On November 25, 1961 and on the preceding night the appellant
complained that he was unwell and took medicine. But on the morning of November
25, he went to his office as usual. He was late in attendance and was marked absent.
He applied in writing for one day's casual leave stating that he had an urgent piece of
work at home. Nobody noticed any symptoms of mental disorder at that time. He left
the office at about 11.30 a.m. and returned home alone. At 1,45 p.m. he stabbed
Leela, Parbati and Raghubir with a knife. He concealed the knife and a search for it
has proved fruitless. At 2.45 p.m. the investigating officer arrived on the spot,
arrested the appellant and interrogated him. He was then found normal and gave
intelligent answers. On the same day he was produced before a Magistrate, His
brother was then present, but the Magistrate was not informed that he was insane.
On November 27, he was interrogated by an Inspector. It does not appear that he
was then insane. On November 30, the appellant's brother filed an application before
the committing magistrate stating that the appellant was insane at the time of the
occurrence. The appellant was later remanded to judicial custody. On receipt of
another application from his brother, he was kept under medical observation from
December 16 to the December 23. On December 19, the medical officer noted that
the appellant was indifferent to his surroundings and personal cleanliness
preoccupied in his thoughts muttering to himself, making meaningless gestures,
losing track of conversations, given to delayed and repetitive answers and unable to
give detailed account of incidents leading to his arrest. On December 23, he was
declared to be a lunatic though not violent. The psychiatrist noted that the appellant
had a relapse of schizophrenia and was suffering from disorder of thought, emotion
and Joss of contact with realities. From his attitude and manner of talk he was found
to be aggressive. On September 6, 1962 the psychiatrist reported that the appellant
was cured and was in a position to understand proceedings in court. The commitment
order was made on January 4, 1963. The trial started in February 1963. The appellant
was sane at the time of the trial. After considering the evidence, their lordships of the
Supreme Court at page 17 of the report state thus: -
The thing in favour of the appellant is that though he had a motive for
attacking Baburam, no clear motive for attacking the child Leela or Parbati is
discernible. But there is clear evidence to show that he knew that his act of

stabbing and killing was wrong and contrary to law. He concealed the
weapon of offence. The knife could not be recovered in spite of searches. He
bolted the front door of his house to prevent arrest. He then tried to run
away by the back door. When an attempt was made to apprehend him he ran
back to his house and bolted the door. He then tried to disperse the crowd by
throwing brickbats from the roof. His conduct immediately after the
occurrence displays consciousness of his guilt. He knew the physical nature
of stabbing. He knew that the stabbing would kill and maim his victims. On a
comprehensive review of the entire evidence the two courts below
concurrently found that the defence of insanity under Section 84(I.P.C.) was
not made out.
(Bracketed portion supplied.)
50. Therefore, the crucial point of time for bringing the case within the provisions of
Section 84 I.P.C. is the time when the offence is committed by the accused, and in
order to know what was the state of mind of the accused at the time of the offence,
his conduct and behaviour preceding, during and following the crime has to be
considered.
51. Dr. Patkar (D.W. 2) during his cross-examination frankly admitted that he could
not give any opinion about the condition of the mind of the appellant-accused in
August 1968. Though he made such categorical statement, he stated that the accused
suffered from paranoid schizophrenia and the onset thereof might be from two years
before his examination by him. It has been brought in the cross-examination of Dr.
Patkar that he had no occasion to examine any criminal lunatic before he examined
the accused in this case. Time at his disposal was too short to properly fathom the
mind of the accused and know his mental condition. The questions reproduced above
which Dr. Patkar put to the accused can hardly be said to be sufficient to know the
nature of the ailment the accused was suffering at the time of his interview with Dr.
Patkar. When Dr. Patkar asked the accused what he meant by 'Kanoon', he said that
the Kanoon was inside him, and he put his hand on his stomach. Thus, according to
the accused, Kanoon for him is the needs of his body. The accused wanted money for
his maintenance, being unemployed, he had to resort to thefts, and to avoid
detection his modus operandi was first to kill the inmates of the house and thereafter
to steal whatever he could find in the house. It is pertinent to note that the accused
was examined under Section 342 of the Code of Criminal Procedure, 1898, on 1st and
4th August, 1969. He was also examined on oath on August 4, 1969. The reading of
his answers to the questions put to him in his examination under the said Section
342 does not show that he was of insane mind. On the contrary, they indicate that
his memory and insight were sound. He was understanding the questions fully and
was answering them intelligently. On August 4, 1969 he was examined on oath and
his deposition reads as follows: -
I do hereby on solemn affirmation state that: -
My name is Sindhi Dalwai
Age: about 40 years.
Residence: Madras Makhan,>
Trinivelli District, Taluka Ambas Mutra, Post Virhen Nallu, Giri Argeshwar
Vallabh. Examination-in-Chief
Q.: Why did you kill the two persons at Chincholi Phatak?

A.: I killed them because there was a war between the 3 Governments. The
British: Govt., The English Govt. and third I also killed them for greed of
money. I cannot give more details about war.
Cross-examination by Mr. Vora for the prosecution
2 . I was knowing that the owner's man was keeping the amount recovered
from the stables in a cupboard. It was a wooden cupboard. I was knowing
about it since the year 1965. I have stated this while giving confession
before Magistrate. They were on the way and I wanted to clear it.
5 2 . On August 4, 1969 in the Court of Sessions for Greater Bombay he did not
exhibit signs of insanity, though he exhibited his garrulous nature and some ideas of
grandeur. The accused made confession before the Presidency Magistrate Mr. Devare.
The confession was recorded by Mr. Ram Manohar Devare (P.W. 33), Presidency
Magistrate who was then presiding over the 14th Court, Girgaum, Bombay, on 11th,
12th and 13th November 1968. The learned Presidency Magistrate before recording
the confession had observed all the necessary precautions and was satisfied that the
accused was making his confession voluntarily and without any pressure from outside
agencies. My learned brother has considered the challenge made to the voluntary and
true nature of the confession by the learned Counsel for the defence and has reached
the conclusion that the confession was voluntary and true. I am in respectful
agreement with him. In the confession which was recorded over three days the
accused nowhere says that he received orders from Kanoon to commit the murders.
There is no reference to Kanoon anywhere in the confession. The accused was
examined by the learned Additional Chief Presidency Magistrate, 19th Court,
Esplanade, Bombay on January 16, 1969. The accused was asked what he had to say
and the accused replied: -
I admit that I killed two persons at Malad, in the Tabela.
53. His confession was also put to him and he was asked what he had to say about
it. He replied: -
I have admitted this in my confession.
54. On receiving the application dated May 30, 1969 from the learned advocate for
the accused, the learned Additional Sessions Judge examined the accused on June 2,
1969. In the answers he gave to the questions put by the learned Additional Sessions
Judge there is no reference to Kanoon. It was for the first time in the interviews Mr.
Pawar, the learned appointed counsel for the accused, had with the accused that
there was reference to Kanoon and to the orders received from 'Above' to do justice
in this world. During the interviews Mr. Pawar had with the accused he gathered that
the accused received telephone information from the 'Above' and he acted as per the
orders received from 'above'. Mr. Pawar narrated as many as ten incidents which he
gathered from the accused and on the basis of the behaviour of the accused and his
expressions regarding those incidents. Mr. Pawar gathered that the accused was of
unsound mind and consequently incapable of making his defence. Thereafter in the
interviews Dr. Frankline (P.W. 1) had with the accused, the orders from Kanoon were
referred to. The accused could not explain properly what he meant by Kanoon, and,
as stated earlier, when asked by Dr. Patkar the meaning of 'Kanoon', he put his hand
on his stomach and said that Kanoon was within him. Thus, according to the accused,
whatever he was required to do for the needs of his body was ordained by Kanoon. It
is in the cross-examination of Dr. Patkar that before he interviewed the accused he
had discussions with the defence counsel Mr. Pawar, Mr. Pawar told him about eight
incidents narrated by the accused. He was also supplied by Mr. Pawar the notes

recorded by him while interviewing the accused. Dr. Patkar, when questioned
regarding the possibility of suggestion to the accused to feign insanity, stated that he
could recognise the possibility of making a suggestion to the accused at the time of
interview to feign insanity. He also admits that before he interviewed the accused he
knew the opinion of Advocate Mr. Pawar that the accused was of unsound mind. It
appears that all this has acted as a magnet which made the exquisite watch to go
wrong, as has been expressed by the great thinker Richard Cecil in the quotation
reproduced earlier.
Section 84 I.P.C. reads as follows: -
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.
55. It is clear from Section 84 I.P.C. reproduced above that by itself unsoundness of
mind is no defence, unless, on account of unsoundness of mind, the accused is (a)
either incapable of knowing the nature of the act, or (b) incapable of knowing that he
is doing an act which is either wrong or contrary to law. The crucial point of time at
which unsoundness of mind has to be proved is the time when the crime is actually
committed. The word 'wrong' appearing in the second part of Section 84 I.P.C.
necessarily means "contrary to law", as has been held in R. v. Windle (supra). What
is contrary to law can never be held to be not wrong. The decisions in Ashiruddin v.
The King (supra), and Kanbi Kurji Duba v. State (supra), which express a different
view, do not appear to be correctly decided. What is wrong is not to be judged from
what the accused considers to be wrong, but it has to be judged from what a prudent
man would consider to be wrong, and what is against law must always be considered
to be wrong. In order to know whether the accused was of unsound mind within the
provisions of Section 84 I.P.C. at the time of the commission of offence, as stated by
their lordships of the Supreme Court in the decisions referred to above, the conduct
of the accused preceding, during and following the crime has to be considered. The
evidence indicating the conduct of the accused preceding, during and following the
incident has been already considered. The accused had met Michael D'Souza (P.W. 6)
on August 13, 1968 and again sometime before the commission of the crime. He also
met the blacksmith Lalchand Vishwakarma (P.W. 5), Mrs. Manjulabai Nilkanth Dalvi
(P.W. 11) and Sanjiva Hudha Shetty (P.W. 10). Neither Michael and his daughter Miss
Violet Joseph Coria (P.W. 13), from whom the accused had obtained an iron bar on a
false pretext that it was required for digging, nor the blacksmith Lalchand
Vishwakarma, who prepared the weapon (Article A) at the instance of the accused,
state that they noticed any abnormality in the behaviour of the accused. The accused
met Manjulabai on August 24, 196R at about 11.30 a.m. The evidence of Manjulabai
shows that at that time the accused had put on a blue shirt and a pair of khaki half
trousers. Manjulabai deposed that the accused earlier resided at the chawl called
Sharma Bhaiyya's Chawl and she knew him for three years before the incident. She
resided in the nearby chaw of Sindar Terry. On August 24, 1968 the accused met her
while she was fetching water. She asked him, "Anna, where had you come'?". He
replied that he had come to Sharma Bhaiyya's Chawl. At that time he was having an
umbrella in his left hand and he was wearing reddish colour canvass shoes. He had
then no beard. As the police were on the look out for the accused even before the
present crime was committed, they saw Manjulabai on August 25, 1968 and had
recorded her statement regarding her meeting with the accused. They had also shown
her the photographs of the accused (Ex. 28). When questioned during cross-
examination, she stated that she did not find the behaviour of the accused strange.
She states that if someone wished and called him, he used to talk well with that
person. The accused in his examination under Section 342 of the Code of Criminal

Procedure, 1898, admits that he had met Manjulabai in August 1968. In reply to
question regarding the evidence of Manjulabai, he states that he did not remember
the date. He did meet Manjulabai near her house. At that time she was sitting. He
also gave the reason why he had gone there. He wanted to pay the arrears of rent to
Sharma, the owner of the chawl, and for that purpose he had been there. He also
admits that the evidence of Manjulabai regarding his dress was correct. Sanjiva
Shetty 'runs a hotel known as Jai Hanuman Restaurant at Chinchavali Naka opposite
the petrol pump. He gave evidence that on August 25, 1968 at about 10.45 p.m. the
accused had been to his hotel. He had put on a blue shirt and a pair of khaki half
trousers. He took tea and eatables. The waiter informed the accused that the bill was
rupee one. However, the accused paid eight annas at the counter. Shetty told him
that he had consumed goods worth rupee one and expressed surprise how he was
offering only eight annas. Thereupon the accused told him that he had no money,
and thereafter he went away in anger saying that as to what he should do when he
had no money. The accused in his examination under Section 342 of the Code of
Criminal Procedure, 1898, admits to have visited the hotel of Sanjiva Shetty on the
night of the incident. He states that he was angry with the waiter because he had put
his fingers in the glass in which he had fetched water. He denied that the dispute was
on account of his paying eight annas less. He stated that he always completed the
account of everybody, and in case he was wild, he would look to him in some other
way but not by keeping back the payment. Thus the evidence of all those witnesses
who had the occasion to meet the accused and have some dealings with him before
the crime in question clearly shows that the accused did not exhibit any sign of
abnormality or insanity. The conduct of the accused during the crime in selecting the
approach way to the stables through the nullah, in selecting the time after midnight,
in giving a large number of blows on the vital part, that is, head, of both the
deceased persons and, on knowing that somebody was approaching, in running away
with the weapon and concealment of the weapon clearly shows that he was fully on
his senses and his faculties of cognition were perfectly in order and he was behaving
like an ordinary criminal. His subsequent conduct in giving information to the police
regarding the place where he had concealed the weapons and leading the police to
the house of Michael D'Souza from whom he had obtained the iron bar and also to
the shop of the blacksmith Lalchand Vishwakarma from whom he got the weapon
(Article A) prepared do not in any way indicate that he was suffering from any mental
disease at that time. Thus, on considering the conduct of the accused preceding,
during and following the crime, it could not by any stretch of imagination be said that
the accused discharged the burden, however light it may be, of proving the general
exception under Section 84 I.P.C. Consequently, I find that the learned trial Judge
was perfectly justified in rejecting the defence of insanity under Section 84 I.P.C.
56. It takes me to consider whether the sentence of death awarded by the learned
trial Judge should be confirmed. In awarding sentence the Court has to take into
consideration all aggravating and mitigating circumstances. The Court has to take
into consideration the antecedents and character of the accused, the nature and
gravity of the crime and its impact on the society. The background of the accused is
fully depicted in the confessional statement he has made before the learned
Presidency Magistrate. He started his crime career during childhood. He was detained
in the Boastal School. He was addicted to wine and other intoxicating drugs. He
visited prostitutes. In order to feed those vices he required money and for that
purpose he committed thefts. He was convicted for those thefts on several occasions
and once he was involved in a murder case. He was convicted in those cases and had
to undergo the sentence of imprisonment for about five years. After coming out of
the prison he did not get any employment, and in order to secure money for the
necessities of life and also for feeding his vices he started committing thefts and in
order to avoid detection he started committing the murders of all the inmates of the

house before committing thefts. Taking into consideration all those facts and the fact
that the accused committed the murders of two innocent persons in the most cruel
manner, I think that the learned Additional Sessions Judge was perfectly justified in
awarding the death sentence to the accused. The death sentence has to be awarded
in the rarest of rare cases and to me it appears that the present is the rarest of the
rare cases, with no parallel in the legal history, and as such the learned Additional
Sessions Judge, in my opinion, was perfectly right in awarding the death sentence to
the accused. Their lordships of the Supreme Court in Joseph Peter v. State of Goa,
Daman and Diu AIR[1977] S.C. 1812, while considering the death sentence awarded
to the appellant therein, at page 1813 of the report observed as follows: -
Section 354(5) of the new Code [that is, the Code of Criminal Procedure,
1973] gives the convicting judge, on a murder charge, a discretion to choose
between capital sentence and life term. It is true that in the present Code the
unmistakable shift in legislative emphasis is on life imprisonment for murder
as the rule and capital sentence an exception to be resorted to for reasons to
be stated (Ediga Anamma) MANU/SC/0128/1974 : 1974CriL J683 . Even so,
the discretion is limited and courts can never afford to forget Benjamin
Cardozo's wise guidance:
The judge, even when he is free, is still not wholly free. He is not to innovate
at pleasure. He is not a knight-errant roaming at will in pursuit of his own
ideal of beauty or of goodness. He is to draw his inspiration from
consecrated principles. He is not to yield to spasmodic sentiment, to vague
and unregulated benevolence. He is to exercise a discretion informed by
tradition, methodized by analogy, disciplined by system, and subordinated to
'the primordial necessity of order in the social life'. Wide enough in all
conscience is1 the field of discretion that remains.'
(Cardozo: The Nature of the Judicial Process: Yale University Press (1921)).
(Square-bracketed portion supplied.)
Their Lordships further continue (at pp. 1813-4): -
The learned Sessions Judge has given valid reasons as to why he is imposing
the death sentence. The guidelines laid down by this Court, in its precedents
which bind us, tell us that if the offence has been perpetrated with attendant
aggravating circumstances, if the perpetrator discloses an extremely
depraved state of mind and diabolical trickery in committing the homicide,
accompanied by brutal dealing with the cadaver, the court can hardly help in
the present state of the law, avoiding infliction of the death penalty. When
discretion has been exercised by the trial Court and it is difficult to fault that
court on any ground, statutory or precedential, an appellate review and even
referral action become too narrow to demolish the discretionary exercise of
power by the inferior court. So viewed, it is clear that the learned Judicial
Commissioner has acted rightly in affirming the death sentence. We are
unable to grant leave on this score either.
5 7 . In the case of Nawab Singh v. The State of U.P. MANU/SC/0123/1953 :
AIR1954SC278 , delay in execution of the death sentence was put forward as a
ground for commuting the death sentence, and their lordships of the Supreme Court
observed (at p. 279): -
It is true that in proper cases an inordinate delay in the execution of the
death sentence may be regarded as a ground for commuting it, but we desire

to point out that this is no rule of law and is a matter primarily for
consideration of the local Government.
58. In Javed Ahmed Abdulhamid Pawala v. State of Maharashtra [1983] Cri. L.J. 960
the appellant was found guilty of multiple murders. The motive for murders was gain.
The murders were perpetrated in a cruel, callous and fiendish fashion. He was
awarded the sentence of death. The Supreme Court declined to interfere with the
sentence of death, though the accused was 22 years of age, and the case rested upon
circumstantial evidence. The appellant filed a writ petition under Article 32 of the
Constitution of India after his appeal was dismissed by the Supreme Court. The
petition for review was dismissed and the petition for clemency was also dismissed
by the President of India. It was a case from Thane. The accused was sentenced to
death by the Sessions Judge, Thane, on February 6, 1982, The High Court confirmed
the sentence of death on April 29/30, 1982. The appeal to the Supreme Court was
dismissed on April 20, 1983 and the petition for review was dismissed on August 12,
1983. The petition for clemency was rejected by the President of India. Thereafter he
filed a writ petition under Article 32 of the Constitution of India in the Supreme Court
praying that in view of his tender age, his reformation in jail and the infliction of the
sentence of death on him and the delay in execution of the death sentence put
forward by him as a ground for commuting the death sentence be taken into
consideration and the sentence may be commuted to one of imprisonment for life.
The Supreme Court called for the report from the prison authorities and, taking into
consideration the tender age of the accused, reformation in the jail and long lapse of
time since the passing of the order of sentence of death, that is, of two years and
nine months, quashed the sentence of death and substituted it with the sentence of
imprisonment for life. In T.V. Vatheeswaran v. The State of Tamil Nadu
MANU/SC/0172/1983 : 1983CriL J693 . Their Lordships of the Supreme Court
considered the effect of delay exceeding two years in executing the sentence of death
and laid down the law at pages 366-7 of the report thus: -
Articles 14, 19 and 21 (of the Constitution of India) are not mutually
exclusive. They sustain, strengthen and nourish each other. They are
available to prisoners as well as free men. Prison walls do not keep out
Fundamental Rights. A person under sentence of death may also claim
Fundamental Rights. The fiat of Article 21, as explained is that any procedure
which deprives a person of his life or liberty must be just, fair and
reasonable. Just, fair and reasonable procedure implies a right to free legal
services where he cannot avail them. It implies a right to a speedy trial. It
implies humane conditions of detention, preventive or punitive. 'Procedure
established by law' does not end with the pronouncement of sentence; it
includes the carrying out of sentence. That is as far as we have gone so far.
It seems to us but a short step, but a step in the right direction, to hold that
prolonged detention to await the execution of a sentence of death is an
unjust, unfair and unreasonable procedure and the only way to undo the
wrong is to quash the sentence of death. In the United States of America
where the right to a speedy trial is a constitutionally guaranteed right, the
denial of a speedy trial has been held to entitle an accused person to the
dismissal of the indictment or the vacation of the sentence (vide Strunk v.
United States (1973) 37 L. Ed. 56, Analogy of American Law is not
permissible , but interpreting our Constitution sui generis, as we are bound
to do, we find no impediment in holding that the dehumanizing factor of
prolonged delay in the execution of a sentence of death has the
constitutional implication of depriving a person of his life in an unjust, unfair
and unreasonable way as to defend the constitutional guarantee that no
person shall be deprived of his life or personal liberty except according to

procedure established by law. The appropriate relief in such a case is to
vacate the sentence of death.
What may be considered prolonged delay so as to attract the constitutional
protection of Article 21 (of the Constitution of India) against the execution of
a sentence of death is a ticklish question. In Ediga Anamma's case
MANU/SC/0128/1974 : 1974CriL J683 two years was considered sufficient to
justify interference with the sentence of death. In Bhagwan Bux's case
MANU/SC/0079/1977 : 1978CriL J153 two and a half years and in Sadhu
Singh's case MANU/SC/0160/1978 : AIR1978SC1506 , three and a half years
were taken as sufficient to justify altering the sentence of death into one
imprisonment for life. The Code of Criminal Procedure (of 1973) provides
that a sentence of death imposed by a Court of Session must be confirmed
by the High Court. The practice, to our knowledge, has always been to give
top priority to the hearing of such cases by the High Courts. So also in this
Court (that is, the Supreme Court of India). There are provisions in the
Constitution (Articles 72 and 161) which invest the President and the
Governor with power to suspend, remit or commute a sentence of death.
Making all reasonable allowance for the time necessary for appeal and
consideration of reprieve, we think that delay exceeding two years in the
execution of a sentence of death should be considered sufficient to entitle the
person under sentence of death to invoke Article 21 and demand the
quashing of the sentence of death. We, therefore, accept the special leave
petition, allow the appeal as also the Writ Petition and quash the sentence of
death. In the place of the sentence of death, we substitute the sentence of
imprisonment for life.
(Bracketed portions supplied.)
5 9 . After the decision in the above case another Bench of three Judges of the
Supreme Court in Sher Singh v. State of Punjab MANU/SC/0147/1983 :
[1983]2SCR582 , while expressing agreement with what has been said in that case,
dissented from the opinion expressed therein that the delay of two years and more
was sufficient to entitle the person under sentence of death to invoke Article 21 of
the Constitution of India. Their Lordships reproduced the following passage
appearing at paragraph 11 in Sher Singh's case (at pp. 468-9): -
11. But we must hasten to add that this Court has not taken the narrow view
that the jurisdiction to interfere with a death sentence can be exercised only
in an appeal against the judgment of conviction and sentence. The question
which arises in such appeals is whether the extreme penalty provided by law
is called for in the circumstances of the case. The question which arises in
proceedings such as those before us is whether, even if the death sentence
was the only appropriate sentence to impose in the case and was therefore
imposed, it will be harsh and unjust to execute that sentence by reason of
supervening events. In very recent times, the sentence of death has been
commuted to life imprisonment by this Court (that is, the Supreme Court of
India) in quite a few cases for the reason, inter alia, that the prisoner was
under the spectre of the sentence of death for an unduly long time after the
final confirmation of that sentence, consequent upon the dismissal of the
prisoner's Special Leave Petition or Appeal by this Court, Traditionally,
subsequent events are taken into account in the area of civil law. There is no
reason why they should not receive due consideration in other jurisdictions,
particularly when their relevance on the implementation or execution of
judicial verdicts is undeniable. Undoubtedly, principles analogous to res

judicata govern all judicial proceedings but when new situations emerge,
particularly factual, after a verdict has assumed finality in the course of the
hierarchical process, advertence to those situations is not barred on the
ground that a final decision has been rendered already. That final decision is
not a decision on new facts. Courts are never powerless to do justice, that is
to say, to ensure that the processes of law do not result in undue misery,
suffering or hardship. That is why, even after the final seal of approval is
placed upon a sentence of death, this Court has exercised its power to direct,
ex debito justitiae, that though the sentence was justified when passed, its
execution, in the circumstances of the case, is not justified by reason of the
unduly long time which has elapsed since the confirmation of that sentence
by this Court. Some of us dealing with this case have been parties to
decisions directing, in appropriate cases, that the death sentence shall not be
executed by reason of supervening circumstances.
(The bracketed portion supplied.)
6 0 . In the present case the accused was sentenced to death by the learned trial
Judge on August 13, 1969 and since then he has been kept in the prison in a death
cell. He is undergoing solitary confinement in the death cell for the last 18 years. He
has yet to face eight more Sessions trials on the charges of murder. Therefore, he is
bound to continue in the prison for a further pretty long time. He has reached the age
of 60 and by the time the trial of the eight cases pending against him is over, he will
have to be in the prison and if found guilty in those cases he will have to undergo
sentences in those cases also. Therefore, there is no immediate danger to the society
from the accused. The danger was apprehended because on his release from the
prison on account of his antecedents it was unlikely that he would get any gainful
employment and as of necessity he will have again to revert to commission of thefts
and murders to facilitate the thefts without detection. My learned brother has already
expressed that he is not in favour of confirming the death sentence and he has
directed the substitution of the death sentence by imprisonment for life. I am in
respectful agreement with him that in the circumstances of the present case, taking
into consideration that the accused has been for a period of about 18 years under the
sentence of death, the death sentence awarded to him by the learned trial Judge
should be quashed and it should be substituted by imprisonment for life.
61. In the result, I find that the conviction of the appellant-accused by the learned
Additional Sessions Judge for the offence under Section 302 I.P.C. is perfectly right
and it is hereby affirmed. The sentence of death awarded by the learned trial Judge is
set aside and it is substituted by a sentence of imprisonment for life.
62. I fully associate with my learned brother in appreciating the valuable assistance
given by the learned Public Prosecutor Mr. Kotwal and the learned defence Counsel
Mr. S.R. Chitnis.
63. Per Court - The conviction recorded by the learned Additional Sessions Judge of
Greater Bombay in Sessions Case No. 65 of 1969 of the appellant-accused for the
offences punishable under Section 302 of the Indian Penal Code is hereby affirmed.
The award of death sentence given by the learned Additional Sessions Judge is
hereby set aside and in its place the accused is sentenced to imprisonment for life.
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MANU/MH/0666/1987

Equivalent Citation: 1987(3)BomC R570, 1987(89)BOMLR423

IN THE HIGH COURT OF BOMBAY

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