The prosecution must prove intention, but not sanity. The accused must prove insanity.

Judgement

MUDHOLKAR, J.: The appellant has applied from the judgment of the High Court at Allahabad affirming his conviction for offences under S. 302, 307 and 324. Indian Penal Code and confirming the sentence of death passed upon him in respect of the offence under S. 302 and also affirming the sentences passed in respect of the other two offences.

2. The facts as found by the High Court are these:

The appellant had quarrelled with Mangali, P. W. 1, as Mangali reprimanded him over the grazing of his cattle in Mangali s field and damaging his crops. The appellant threatened Mangali that he would exterminate the latter s family. On February 25, 1957 at about 3-00 P. M. Babu Ram son of Mangali, aged about 7 or 8 years, Ram Ratia, aged about 2 years, daughter of Mangali s brother and Punna, son of Baijnath, brother of Mangali and Dulli, daughter of one Ladda Kewat, aged about 10 or 11 years and some other children were playing in the village near the hut of Hiralal, P. W. 3. The appellant came there armed with a sickle and rushed at the children. He first struck a blow on Babu Ram, who fled away and started crying. Mangali s one year old daughter Lachhminia was also there at that time and the appellant ripped open that child s chest with the sickle as a result of which she died almost immediately. The appellant then struck blows on Ram Ratia and also on Punna. Hiralal, the brother of the appellant who was sleeping in his hut was awakened by the cries of the children and rushed out to save them.

3. Thereupon the appellant struck a blow on Hiralal as well. Hearing the cries of children a number of villagers rushed to the spot but the appellant escaped from their clutches by running towards the river Ganges which is at a distance of about 75 paces from the place of the incident, jumped into the water and swam to the other shore and absconded. On October 11, 1957 proceedings under Ss. 87 and 88 of the Code of Criminal Procedure were started against him and he was eventually proceeded against as an absconder. It was only on February 1, 1963 that he was arrested and thereafter sent up for trial. At that trial he was convicted and sentenced, as already stated.

4. The only point urged by Mr. Verma who appears for the appellant is that the appellant was a person of unsound mind and that he was not in a position to know or realise the nature of the acts which he was committing. Learned counsel argued that mens rea being an essential ingredient of all the offences with which the appellant was charged his conviction with respect to any of them cannot be sustained for the simple reason that no intention to cause death or to cause any injury whether resulting in death or not could possibly be attributed to a person who, when he committed the acts, was insane. Similarly arguments appear to have been addressed before the Sessions Judge as well as the High Court, even though in his examination under S. 342 of the Code of Criminal Procedure the appellant did not plead the defence of insanity.

5. Section 84 of the Penal Code, one of the provisions in Ch. IV of the Penal Code, which deals with "General Exceptions" provides as follows:

"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".

Under S. 105 of the Indian Evidence Act, 1872 the burden of proving the existence of circumstances bringing the case within any of the exceptions specified in the Penal Code lies upon the accused person. It further provides that in such a case the Court shall presume the absence of such circumstances. Illustration (a) to that provision runs as follows:-

"A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.

The burden of proof is on A".

Learned counsel, however, relies upon a decision of this Court in Dahyabhai Chhaganbhai